Making Sure Your Title is on Fleek

I've been working for the better part of a year - well, a millennium, actually, but let's not get into that right now - on a vampire story.  Vampires are particularly difficult because they've been done to death (ha!)  I feel like I'm right on the cusp of something original, really original, with our favorite bloodsuckers, but I can't...quite...

Anyway.  Tossing around a science fiction theme, a title occurred to me: BLOOD STAR.  Pretty cool, n'est-ce pas?  I then took my standard next step which is to check on Amazon to see if any other books or important media shared that name.  Of course, one does, a 1989 novel by an author I'm unfamiliar with, Nicholas Guild.  Does this mean, therefore, that I am banned from using that title I independently created by smashing together two fairly run-of-the-mill words?

Short answer: no.  Of course not.

Titles, in case you are unaware, cannot be copyrighted.  This is pretty easy to remember and intuitive.  After all, the movies "Pretty Woman" and "Bad Boys" were named after songs.  Or, flipping the script, "Dirty Harry" by Gorillaz and "Breakfast at Tiffany's" by whatever that shitty band was were named after movies.

Of course, this isn't just an inter-media thing, it's also intra-media.  For instance, the other day I was wondering who sang that "Bang Bang" song I heard on the radio.  (I could tell at least one of the singers was Nicki Minaj, because she kept mentioning her own name - not 100% sure why that was necessary - but I couldn't tell who the other two were.)  So I went to Wikipedia and learned that there are literally twenty different songs which have been recorded with the identical name of "Bang Bang."

So, generally speaking, if I wanted to call my space vampire epic BLOOD STAR, Nicholas Guild wouldn't really be able to say anything about it.  And considering that his book was about ancient Rome and mine would be about futuristic monsters, there's not even really much of an argument I'd be acting in bad faith.

For a real-world (and hilarious) example let's compare our good friend Mary Fan's own cyberpunk sci-fi epic SYNTHETIC ILLUSIONS with the surprisingly similarly named A SYNTHETIC ILLUSION by Christian Clark which appears to be a tale about "elite prostitution."  If names could be copyrighted, Mr. (Ms. ?) Clark might very well be able to sue our intrepid Ms. Fan for misrepresenting his (her?) seminal hooker book.

Which is not to say that he (she?) couldn't try.  I'm not a lawyer, but I do have friends who are lawyers, and as they've explained it to me (sorry if i'm fucking this up, guys) basically anyone can sue anyone for anything.  That's why a Nebraska woman recently made news for suing "all the gays."  That doesn't mean your suit has any merit or that a judge won't just toss it out of court, though.

Trying to sue someone for copyright infringement on a title is basically as frivolous as a case gets, considering there is no such protection.  And if you can't even suggest that there was some kind of bad faith reason for doing so, it gets even more frivolous.  Nicholas Guild wouldn't have much of an argument that I'm trying to ride the coattails of his not-especially-popular thirty-year-old novel, for instance.

So, this raises one last point and then I'll stop talking about matters I'm not really qualified to give legal advice on.  Suppose I was a dastardly little fuck and I did want to try to take advantage of the fact that you can't copyright titles for my own purposes?  Why couldn't I, for instance, title my vampire novel STAR WARS, EPISODE VIII: THE BLOOD STAR MENACE?  A lot of damn people would be buying my book and I would have essentially swindled them.

Well, this is where trademark comes into play.  I'm not 100% on the difference between trademark and copyright - maybe an expert can weigh in down in the comments? - but I do know you can trademark fictional characters, some fictional terms, and series names.  So "Star Wars" is trademarked as a brand name, as is the "For Dummies" series.  And I couldn't have "Harry Potter" show up as a character in my book - at least, unchanged with a scar on his head and glasses and a magical wand, etc. - because he's a trademarked character.  But under fair use, which is a whole other thing, I could have "Jerry Cotter" a very similar boy wizard appear for parody purposes.

So, to simplify:

I call my book BLOOD STAR even though another, unrelated work by that name exists - Totally legal, since you can't copyright titles.  You could get sued, but you could also get sued by a Nebraska woman for being gay.  That doesn't mean the case has any merit.

I call my book THE DA VINCI CODE even though a substantially more popular work than mine by that name exists - Technically legal, since you can't copyright a single title.  But if you piss in Dan Brown's eye and he decides to sue you, considering you were obviously working in bad faith and he's got millions of dollars for legal fees - is that really something you want to deal with?

I call my book HARRY POTTER AND THE BLOOD STAR, even though a popular, trademarked series by that name already exists - Totally illegal.  You done fucked up now, son.  You acted in bad faith AND you violated a trademark.  Not only will the case have merit, but almost any property popular enough to be worth infringing upon will probably be owned by people with the time and money to sue you into oblivion.