Can popular song titles and music lyrics be used in the sale of merchandise, such as on a t-shirt or bumper sticker? This article will explore the legal rights associated with using movie titles, song titles and lyrics in connection with the sale of a product by someone other than the originator or copyright owner of a song.
Song Titles, Song Lyrics and Copyright LawLet's take a quick look at understanding how copyright law works before making any decisions about its use on a t-shirt or bumper sticker. Copyright law provides exclusive protection to someone who creates an original work of authorship that is fixed in a tangible medium of expression. What does that mean to people who don't understand legalese? It means that the thing you create must be:
Song titles generally don't fall within the protection of copyright law since most are not sufficiently original or independently conceived by the artist. Are phrases like "born to run" or "on the road again" sufficiently original so as to deserve legal protection? The few words in a song title may have been used many times before and should be able to be available for general use as a natural part of the English language. Copyright law in itself doesn't seem to prevent anyone from placing a song title on a bumper sticker or t-shirt.
- Some type of creative expression (such as a painting or song) which is;
- Sufficiently original and independently conceived by its creator that is;
- In some permanently stored format so that it can be reproduced (such as a painting on canvas but not a design drawn in water which is only visible for a moment.)
Song lyrics, like chapters in a book, consist of many words strung together by a person conveying a thought or series of thoughts. The more words the artist uses the less likely it is that someone else will independently use the exact same words to express the same thing. How common is it to hear someone utter the phrase "there's a lady whose sure all that glitters is gold and she's buying a stairway to heaven?" Probably not often. It is even less likely if the next sentence begins with "when she gets there she knows if the stores are all closed." This is why Led Zeppelin would have copyright protection for the song lyrics to "Stairway to Heaven" but not for the title. So if all we had to look at was copyright law, it would seem you might be able to use song titles or perhaps several words from song's lyrics on a bumper sticker or t-shirt. But the discussion is far from over as you'll see shortly.
Song Titles and Trademark LawTrademark law is often confused for copyright law but it is a very different type of legal protection - it aims to prevent consumer confusion in the marketplace. When people hear the mark "Coca-Cola" they think of the famous cola flavored soda beverage manufactured by the company of the same name. Unlike copyright law, shorter phrases can be trademarked. Anyone can say that they have seen a couple of rough Dallas cowboys in the local bar but the law prevents anyone but Jerry Jones and his organization from using that phrase in connection with a professional football team. If some other entity wanted to create a professional football team and use the same name, it would be confusing to consumers in the general marketplace. Some large companies are known to take action, even if the use is marginal. The National Football League (NFL) is known for zealously policing its trademarks. T-shirt and apparel vendors know this well - it is a common problem for people trying to sell their own goods (or imitations) online or through e-Bay. The famous "Star Wars" mark of movie fame is own by Lucasfilm Ltd., who also police their marks vigilantly. Even if you think you are right, think about whether your use may be worth the time, money and effort you might need to defend yourself in a questionable case.
Song titles have been trademarked and the subject of lawsuits. The "Material Girl" song by Madonna was a strong brand but a song title by itself was denied a trademark as it applied to clothing. Using that slogan on a t-shirt would seem to be permissible. On the other hand, "Ziggy Stardust" is a trademark owned by David Bowie. Using that unique name would probably call into question anyone who would put out a series of t-shirts or bumper stickers who has not obtained authorization from the ultra-famous musician. "Yellow Submarine" is a famous song by the Beatles and is a registered trademark of Subafilms - but also appears to be used by an unrelated company as the name of a restaurant. Showtime called its show "Californication" to the objection of the Red Hot Chili Peppers, who may lose their California lawsuit not only because they didn't trademark the term but also because it had been in use many years before the famous song. There is also the question as to whether simple use as a song title means it cannot be used as the name of a TV show (or merely as printed on a t-shirt.) Simon & Garfunkel's song "Kodachrome" was required to print recognition of Kodak's trademark for its film products on it's best selling album. The song "Things To Do In Denver When You're Dead" was written by Warren Zevon and a movie of the same name was allowed to use the title provided the song was played during the movie credits. What is the takeaway of all this? If you're thinking about using a song title on a bumper sticker or t-shirt, you will probably want to consider whether trademark law might apply and, if so, whether a federal trademark was filed in the USPTO Trademark database.
Tips on Using Song Titles or LyricsThe following are a group of general observations made with regard to the use of song titles or lyrics on a product such as a t-shirt or bumper sticker. While it should be helpful as a general guide, you should be aware that you should not rely on this article by itself as legal advice for your specific situation. Every use of a song title or lyric is unique and has its own special circumstances - such as whether a copyright or trademark has been filed, the manner of use, the context of the use and more. The only way to be sure of the legality of your use of a song title or lyric would be to have a legal consultation with an experienced trademark lawyer.
- Generic song titles and phrases are likely not able to be protected (such as "On the Road Again") - this is most likely the safest approach to using song titles and lyrics on a t-shirt or bumper sticker;
- The more unique and unusual a phrase or song title, the more likely trademark law might apply (and that you might attract enough attention to be potentially sued or ordered to cease and desist by the entity that owns the rights to the song);
- While copyright law may not apply to a song title but trademark and unfair competition law might apply;
- Searching the US Patent and Trademark Office's Trademark Database is usually a good idea - but remember that there are also unfair competition laws which might apply;
- If copyright protection applies, it will be in effect whether or not there is a copyright registration;
- Just because other people and companies seem to be selling t-shirts, bumper stickers or other items successfully and without incident doesn't mean it's legal - for all you know, they either obtained permission, are in the process of being shut down or sued or might just not be large enough yet for the trademark owner to make the effort.
- Even if you might have the legal right to use song titles, be aware of the negative goodwill you might attract by people or fans who think you're wrongfully exploiting their beloved band or artist.
- Intellectual Property:
- Music Law
Copyright Are Song Titles & Lyrics Protected by Copyright or Trademark Law?
By Michael Wechsler |
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