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If you use a line or phrase from a really famous poem that most can recite as a title for a novella, is it stealing? What can be done to give proper credit?

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4 Answers 4

It's done often enough. I can think of books and stories with titles that come from poems, Bible quotes, etc. Like Hemingway's "The Sun Also Rises" is a quote from Ecclesiastes, and there's a fairly well-known science fiction story called "By the Waters of Babylon", also a Bible quote. There's a story by Heinlein called "And he Built a Crooked House", which is a line from the poem, "There Was a Crooked Man."

Note this is not about copyright but about trademarks, which is entirely different rules. Depending on the details, the writer of the original poem might have grounds for a trademark suit against you.

IANAL, but my guess is that if it's a poem that has long since gone out of copyright, you'd be pretty safe. But if you took a line from, say, music lyrics of a song that just came out last year, you'd probably be on thin ice.

My conclusion would be: Unless you have a really strong reason to want to do this, I'd avoid it just to avoid potential trouble. If it's not necessary, why take the chance on a lawsuit, even if you were pretty sure you would probably win?

I gladly yield to any trademark lawyers who can give a more definitive answer.

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I, too, am not a lawyer, so cannot give you advice. I can, however, tell you how I think I would act in your circumstances, as I understand them.

My understanding of copyright protection is that it does not protect every word or line in a work; it protects only significant portions of a work. As such, I can quote a work verbatim without compensating the copyright holder as long as (a) the size of my quote is not substantial, and (b) I don't decrease the value of the copyright holder's interest in his or her own work. I believe that, in practice, such quotations can even arouse curiosity in readers and thus increase value of the copyright holder's work.

That said, I take the Second Court's decision, as quoted above from the Rights of Writers site, as their interpretation of trademark law, not copyright law. In trademark law, I see a title, cover artwork, and publisher's logo as the "brand" or "trademark" of a book or album. It seems to represent the work and who produced it. As long as I present my work with a sufficiently different cover, subtitle, font, or other characteristics, I should be able to use the same title. The key is that I make it clear that I am the author of the work and that the work cannot reasonably be confused as coming from another author, even though I may be playing another riff, so to speak, on the same theme.

For example, Amazon lists two book titles, "Where No Man Has Gone Before", and one even has an obvious Star Trek theme. But I would expect that no court would sustain a claim from Gene Roddenberry's heirs that either of these violate his copyright to the opening sequence of the series, and I certainly don't confuse it as that opening sequence or having been written by Gene Roddenberry.

I might also publish a book with the same title as long as it is clear that this is not a product of the Star Trek franchise. It may be my commentary on the franchise, or how I see that Star Trek has foreshadowed reality, but not a work from the same writers, directors, and/or producers.

But as I say, this is all just my view of the issue. If you need advice about your particular use of a line from a song or poem, please seek the opinion of a qualified trademark and copyright attorney.

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Don't do it. Here's why. The copyright holder of the poem can invoke the Lanham Act to protect their work.

It falls under 'unfair competition' and/or 'passing off.' "Passing off" is where they usually nail you to the wall.

The title of a stand-alone book cannot be copyrighted. However, the main title of a series can be trademarked and registered.

You could seek permission from the copyright holder of the poem to use a line from the poem as the title of a book. If they allow it, they may also ask you to give credit for same on your copyright page.

The stealing of book titles is quite common, and you often find the same title by different authors in book listings. However, doing so can get you in legal trouble.

Here is quote pulled from the "Rights of Writers" website.

Here's how the Second Circuit Court of Appeals explained "secondary meaning" in Rogers v. Grimaldi: The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors . . . . Indeed, it would be ironic if, in the name of the First Amendment, courts did not recognize the right of authors to protect titles of their creative work against infringement by other authors.

VTY Dutch

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If I understand the OP, he's not asking about copying a title but a phrase - like naming his novella "Now is the winter of our discontent" (if Shakespeare was still in copyright) or "Hasta la Vista, baby" to use a popular but slightly more recent phrase. Would your citations regarding passing off still apply? Can these phrases even be protected? –  Avner Shahar-Kashtan Jun 23 at 15:58
    
Hi Avner From what I understand, any key phrase or recognizable popular phrase from a copyrighted work, is still copyrighted, regardless of where someone else other than the copyright holder wants to use it. Although Titles cannot be copyrighted, the line from the poem or in your examples, the phrases themselves are. I didn't check, but "Hasta la Vista, baby' could very well be trademarked by now. Fair Use NEVER applies to a work for resale! VTY –  Dutch Rhudy Jun 23 at 20:32

If the poem is that famous, it's probably out of copyright. So you can pilfer that, as long as you don't get into trademark issues. Anything by Shakespeare or some other long-dead author is fair game. Traditional poems, like Mother Goose rhymes, would also be fair game.

However, famous old works like that present you with another problem: probably lots of authors have taken parts of those works' famous lines and used them as book titles. For example, you might think "Jacob Have I Loved" (from the Bible) would be a cool title, but you (probably) can't use it because somebody else already has, and that book is still under copyright. (I say "probably" because IANAL.) So, do a thorough search first.

Trademarks are tricky. It is difficult to trademark a common word for your sole use. (Consider the trademark problems that Apple had.) That is why companies often use non-standard spellings and made-up words. It is much easier to claim sole use on "Xerox" than it would be for "Copycat" or "Mimic." If a photocopier company liked the name "Copycat" they would probably trademark it as "CopyKat" or "KopyCat."

Why am I discussing that? Because "StarWars" is trademarked, but you could title a sci-fi book "Chronicles of the Delta Quadrant Star Wars." OTOH, that might be a bad idea, because somebody with deep enough pockets might destroy your book by threatening lawsuits against anyone distributing it. Even though legally you didn't do anything wrong, and you'd eventually prevail in court, you'd still be doomed. (Unless you could prove that the lawsuits were frivolous and harmful. Then your opponent's deep pockets would work in your favor. But do you want to write, or sue people?)

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