Common questions frequently raised by musicians and writers are: (i) whether they can protect their album or book title as a copyright or trademark, and, related, (ii) whether they can use an album name or book name that is similar to one already in use by another band or writer. The answers, of course, are “it depends.” Artists seeking to protect their titles or adopt previously-adopted titles are well served to take the appropriate steps early in the process to ensure themselves the maximum levels of potential protection and risk mitigation.
Generally speaking, titles of albums and books (as opposed to their content) are not protectable under U.S. copyright law. Titles are typically considered too insubstantial and non-original to garner copyright protection, which is reserved for creative “works” fixed in a tangible medium of expression.
Similarly, U.S. trademark law does not allow for direct registration of album and book titles as trademarks. However, I say it does not allow for “direct” registration because, while the title cannot be registered for use on the album or book, it can potentially be registered for use in connection with related merchandise or memorabilia. When a musician or music group has plans to print album-specific t-shirts, or an author has plans to develop a line of action figures for the characters in their book, they can (and should) seek to register their trademarks for use with these items.
Importantly, even where federal registration may be unavailable, album titles and book titles that have acquired “secondary meaning” (i.e. are sufficiently well known within the relevant marketplace) still receive common law protection, and can form valid bases for pursuing claims against apparent infringers.
In addition, where a book title identifies an entire series (think Harry Potter or The Hardy Boys) as opposed to a single work, the title is subject to federal registration for use in connection with the series itself. This is an important level of protection that should not go overlooked when developing the title for a series of works. Read here about “intent to use” trademark applications.
Of course, as far as musicians are concerned, nothing in the foregoing analysis precludes registration of the musician’s, band’s or group’s name as a trademark. In fact, early registration of the group's name can be critical to developing a unified national presence.