Hi there, I wrote an e-book few years ago that has a character Knitty Kitty called Knitty Kitty and the Magic Ball of Yarn. I illustrated it myself. It was only published online by a publisher.
It turned out later that a book with a similar name already exists - it's called Knitty Kitty by David Elliot.
I want to self-publish my book but worried this is a risk of a lawsuit. Re-naming the character is not an option. What should I do?
Typically, a book title is not protectable via either copyright or trademark. This is why there are many books with similar or even identical titles. The exception is where there is more than a single book, either a series of books or a book and other items such as merchandise, all referencing a common thread which could be considered a trademark. So, if David Elliott only has the one book referencing Knitty Kitty, and you only have one book with this reference, it is likely that you are on safe ground. However, if either of you have multiple Knitty Kitty books, say you also wrote Knitty Kitty and the Naughty Needle, there might be a issue.
In this case, you say that the book is already published. It does not matter if the publication is for ebooks only, or hard copy, or both. If there were to be a claim of infringement it would likely have already been issued. It does not appear that there is a big risk here, and if there is a risk you have already incurred it so don't lose any sleep over it at this point.
A single word or very short phrase, is typically not protected by copyright, but it may be protected by trademark.
A title of a single book may not be protected by trademark, but may be protected if there are a series of books.
Also, a fictional character may be protected by copyright.
You need to show your book and the other party's book or other works, to an intellectual property attorney in a private consultation, to assess whether there are intellectual property concerns.
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You are free to name your character anything you like. While the fictional characters can be protected as apart from the underlying work in which they appear, there has to be some substantial similarity between that character as it is known and how it is depicted in your work. For example, I am free to name a character in my book James Bond. But if I give him a British accent, a PPK, seriously high-end sports car and show him shaking his martinis instead of stirring them I am very likely infringing on copyright interests.
If you need further clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
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