Is my song title protected by copyright?

August 2, 2011

Dear Music Lawyer,

I have written an original composition, and I publish it and sell its sheet music in the retail marketplace. I recently found out that there is an album whose title is the same as mine. That album does not contain any songs with the same titles as mine, nor does it contain music related to mine. Is there any possible copyright conflict?

—Paul

Dear Paul,

Thank you for your question. This topic comes up quite often, and it helps to show the boundaries of copyright protection. Generally, copyright law protection does not extend to song titles because they usually are short and lack sufficient originality. Therefore, you can (and often do) have multiple songs with the same name, and the first to name their song, for example "Crazy," does not have the right to stop other people from releasing their own songs named "Crazy." An exception to this is that some long titles may be found to have sufficient originality to be afforded copyright protection. I suspect that my friend's song entitled "The Concept of the Quantum-Mechanical Bodymind Has Sparked a Great Idea" is one of them.

The story doesn't end here. If the song was a hit song, the song title could be protected from unfair competition as a trademark under trademark law. A trademark is a word, phrase or symbol that is used to identify and distinguish the source of a product or service. You might think of it like a brand. Accordingly, trademark law's primary goal is to protect consumers from confusion as to the source of a good or service and to prevent later users from trading on the popularity of an earlier use of a name, phrase or symbol. Importantly, trademark law not only protects against later use of the same mark but also of "confusingly similar" marks.

For example, music publisher EMI successfully argued in court that the song title "Sing, Sing, Sing (With a Swing)" constituted a protectable trademark and a golf company could not use "Swing, Swing, Swing" in their advertising without EMI's permission. Keep in mind, however, that "Sing, Sing, Sing" was a wildly successful song that was included by NPR in the list of the 100 most important musical works of the 20th century. The overwhelming majority of song titles are simply unprotectable.

—Amy E. Mitchell