Q: I have a conflict with the title of my movie and the title of a famous song; let’s just say it’s “Free Fallin.’” Neither the movie’s content/storyline, nor the title of the movie itself have a reference or connection to the song lyrics at all, besides the fact that the title is the same. The title is a common phrase that is used, but I’m afraid that if I name my movie as I want to, that I will get into trouble as far as copyrights. Can you tell me how likely I am to be sued for copyright infringement if I use a title that coincidentally is also the name of a famous song?
A: The good news is that song titles are not copyrightable. The Code of Federal Regulations provides that: “[w]ords and short phrases such as names, titles, and slogans” are “not subject to copyright and applications for registration of such works cannot be entertained.” 37 C.F.R. § 202.1(a). Case law confirms this, although at least one case suggests that a title that is completely fanciful and arbitrary, such as “Supercalifragilisticexpialidocious,” might be entitled to copyright protection. However, that does not seem to be an issue here because you have suggested the title is a common phrase. Moreover, because the title is a common phrase, it would not be entitled to copyright protection even if song titles could be copyrighted because in order to obtain a copyright, the work must be original. Therefore, you should not be held liable for copyright infringement for using a song title as the title of your movie. The bad news is your movie title will not be copyrightable either. MM
Gregory Gabriel, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, focuses primarily on music, entertainment and intellectual property litigation with extensive experience in copyright, trademark, right of publicity issues and contract issues. His intimate understanding of the law in this area has resulted in efficient victories for our clients. Gabriel recently assisted in the defense of Sanctuary Records against a multitude of claims by Mike Love from the Beach Boys in two separate lawsuits. Love’s complaints included claims for conspiracy, right of publicity violations as well as trademark and copyright infringement, among other things. Gabriel helped obtain a dismissal of every one of Mr. Love’s claims by motion, which resulted in a published opinion: Mike Love v. The Mail on Sunday, 473 F.Supp.2d 1052 (C.D.Cal. 2007). In addition, Gabriel helped obtain an attorneys’ fee award in favor of Sanctuary in both cases.
The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP (“KWIKA”) are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.
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What if the content of the movie did correlate with the song title? Foe example, if the title of the movie were Pretty Woman, and the plot and elements of the movie somehow followed the song lyrics. Would permission need to be granted? Conversely, if the title were not specific to the song (i.e., That Pretty Girl), but the plot and elements followed the lyrics, would the content be copy written, and needing permission?