Generally, the title to a single motion picture is not entitled to trademark protection.  This is the same for the title to single books, songs and other singular creative works.  Most non-trademark attorneys are surprised when I tell them this.  I am sure you may be scratching your head as well.  The logic behind the legal principle that the title to a single creative work cannot function as a trademark is as follows:  a title to a single creative work such as a book serves to identify only the book and not the source of that book.  Another reason trademark law generally refuses to acknowledge trademark rights in the title to a single creative work, such as a book, results from the interplay between copyright and trademark law. While trademarks endure as long as the mark is used, copyrights eventually expire. When a work falls into the public domain, others would have the right to reproduce the literary work.  However, if the title to the book enjoyed trademark protection, this would compromise the policy of public domain under copyright law because a book with a trademarked title could only be published under a different title.
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A longstanding battle between Google andAudrey-Millemann-03_web the authors of published books has been resolved (at least for now) in favor of Google. The Second Circuit Court of Appeals has held that Google’s use of copyrighted books in its Library Project and Google Books website, without the permission of the authors, is fair use and therefore not copyright infringement. The Authors Guild v. Google, Inc. (2nd Cir. 2015) 804 F.3d 202.

In 2004, Google began its Library Project. Google entered into agreements with some of the world’s leading research libraries, including the University of California, the University of Michigan, Harvard, Stanford, Columbia, Princeton, the New York Public Library, and Oxford. Under the agreements, the libraries submitted certain books to Google which Google digitally scanned, made machine-readable texts, and indexed the texts. Google has now scanned and indexed over 20 million books. Some of the books were copyrighted, while others were in the public domain. Most of the books were out of print, non-fiction books. The digital copies are stored on Google’s servers.

The public can access Google’s database of machine-readable texts through the Google Books website. On the website, the user can search for key words and find all books that include the key words and the number of times the search terms appear in each book. The search results also include a short summary description of each book and may include a link to purchase the book or the names of the libraries where the book is located. The website also offers the user the ability to see up to three snippets (segments of about an eighth of a page) of the text of the book. Searches for different words will turn up different snippets, but one snippet out of every page and one page out of every ten pages of each book are permanently inaccessible to the user (referred to by Google as “blacklisted”). In 2005, Google agreed to remove the snippet feature for any book at the copyright owner’s request. Google does not permit advertising in the Google Books searches and does not get paid for any sales of books.

Continue Reading When Copying is Not Copyright Infringement