Song titles as painting titles

Discussion in 'Copyright, Trademark, Patent Law' started by sherivw, Nov 8, 2011.

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  1. sherivw

    sherivw New Member

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    I am working on a series of paintings that are inspired by songs by various artists. I always think of them as the titles of the songs. I am interested in starting to sell paintings and was wondering if using the titles of the songs would be an issue. For example I have recently finished a piece inspired by "Tremble For My Beloved" by Collective Soul. I want to title it by the full song title. I appreciate the help!
     
  2. thelawprofessor

    thelawprofessor Administrator Staff Member

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    Great question. I'll tell you the way it works in theory and then in practice, from my understanding. Remember that none of this is a replacement for a consultation with a lawyer so as to discuss all the facts in issue.

    Many people will sell t-shirts, bumper stickers, signs and other items using the names of famous songs and claim that they never had any legal problems. That may be true but just because you haven't received a cease and desist nor a summons and complaint as part of a lawsuit doesn't mean that using song names is legal.

    In general, titles of songs are not able to be registered under copyright law. By themselves, they are generally not sufficient to be called "works of authorship." The name of a song called "Girl" (pick your artist, I'll choose the Beatles) is a good example. Song lyrics, on the other hand, can be registered for a copyright.

    Trademark law and unfair competition is another area of intellectual property law that may apply. Generally song titles are not subject to trademark since the title itself isn't used in commerce to identify a band. For example, "The River" is not a title or group of words which generally associated with Bruce Springsteen and used in commerce. It's also generic. But what about a title that is more specialized like "Californication" that many associate with the Red Hot Chili Peppers? There was a lawsuit filed but, in that case, there is a bit more to it - Showtime, the television network, also used the names of characters appearing in that song. Still, it was a bit of an uphill case because that phrase wasn't coined by the band and it's not clear that it identifies themselves in commerce. So let's take David Bowie's "Ziggy Stardust" as another example. If you tried to sell items using that name you might have problems since Bowie did register that name as a trademark that identifies him as using the mark in carrying out commerce.

    So what's the answer? In short, there is a bit of a gray area. But these are my takeaway points:
    • Copyright may not apply to a song title but trademark and unfair competition law might.
    • In order to be 100% sure that your efforts aren't violating someone's rights, each title would need to be checked for an entry in a trademark registry and also to determine whether its use might fall under the protection of unfair competition laws.
    • If you use generic song titles and nothing that clearly identifies an origin of a song (such as "Ziggy Stardust" or "Yellow Submarine" as opposed to "She Loves You") then you might be in the clear even though there is a suggestion to the purchaser of what you're doing. Without making any recommendations or suggestions, this seems to be the safest area to fly.
    • Just because sell t-shirts, bumper stickers or other items successfully and without incident doesn't mean it's legal - it might mean that it just isn't worth the time and effort to sue.
    • Chances are that legally you will probably be able to do what you're doing but it doesn't mean that the legal team of a famous artist won't send a cease and desist letter or actually sue you, even if they are wrong (usually only happens when there is money to recover and the business attracts sufficient attention.)
    • If you're going to use any song title in a work, don't use one that will almost certainly be confused with a band, e.g. when the name of a movie is released very close in time to a song with an unusual name like "Things To Do In Denver When You're Dead." The term is certainly identifiable with an origin, it has a whiff of unfair competition even if it may not be registered as a trademark and could result in an action. (In this case, the movie used the Warren Zevon song of the same name.)
    • While you may have the legal right to use song titles, be aware of and consider whether using them will significantly arouse the ire of a group, entity or your target market, who might see using their name as "wrongful exploitation."
     
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