With self-publication of books being more popular than ever before, the number of books hitting our shelves is on the increase. But, as an author, what legal considerations should you take into account when choosing a title for your new book?
Although copyright is unlikely to exist in the title of a book, there are still a number of legal pitfalls that limit how you market your new book. You should be generally wary of any representations, allusions, or themes in the text or design of your book, which may suggest a connection with an existing publication.
Some important legal consequences to consider in devising a title include passing off, trade mark infringement and misleading and deceptive conduct under the Australian Consumer Law (ACL).
Australian Consumer Law
Common sense often prevails in determining whether you have engaged in misleading and deceptive conduct. The ACL defines this as conduct that misleads or is likely to mislead, and is directed at the ordinary consumer. Keep this in mind when penning a title for your latest work. If you think you have a witty, innocuous pun that plays with an existing title, be aware that others may not appreciate the linguistic nuances that separate your book from the existing publication.
If the objective observer (or reasonable reader) is led to believe something untrue about your book, then you may be heading toward legal hot water. Consider also what your title implies about the content of the book and about any connection it may have to an existing series. Then avoid everything that makes your book appear to be anything other than your book.
Passing off involves making a representation in the course of commerce that deceives or causes confusion amongst customers. The essence of the concept is that if the readership struggles to discern whether a book is yours, or if it is in fact the original work of another author, then you are possibly, guilty of passing off. Avoid anything that allows for the impression that your book is related to an existing publication. This includes suggesting it is part of a series, bears resemblance to the work of another author, or otherwise takes advantage of the reputation of an existing text. Images can also misrepresent an association to an existing text. Considerations of cover design and formatting may become relevant in ensuring you are not passing off your book for a well-known competitor.
Trade mark infringement
A trade mark is a badge of origin that distinguishes your product or service in the marketplace from those offered by others. A registered trade mark will ensure that you are rewarded for any goodwill that accompanies your book.
However, it is not easy to enforce a registered trade mark relating to a title of a book. This is because a title of book does not always function as a badge of origin. In other terms, a book title is not always used as a brand. But beware, some authors will have been successful in registering their book title as a trade mark and consequently, may vigorously enforce their trade mark rights against unauthorised use.
Examples of trade marks that have been registered in Australia and relate to book titles include HARRY POTTER and WILLY WONKA. This means that these titles are likely to be off limits to any author contemplating a similar book title.
Further, trade mark infringement can be inadvertent. So, if in doubt, you should ensure that proper searches are carried out to ensure that your new book will not get attention for all the wrong reasons. Your trade marks lawyer will assist you with this.
If you are in the business of writing books, then there is a decent chance you are creative enough to conjure all manner of book titles. So put that creativity to test and aim for something original, without any potentially misleading allusions to an existing work.