13 October 2003


One of the (many) things that pisses me off about the so-called "writer's magazines" is their tendency to provide incomplete or outright incorrect answers to leading questions on legal issues affecting writers. The Cincinnati Behemoth's columnist recently answered a question concerning a novel whose title derived from the last line of a Lord Byron poem. I cannot entirely blame the lawyer who wrote the answer for this; the editorial policies and all too often incompetence at these magazines quite possibly mangled the answer. But the answer provided is wrong.

   First of all, the initial consideration should have been "is copyright the appropriate theory?" It is the only legal theory considered in the answer. However, we're dealing with a title here; and one of the first principles of copyright law is that titles are not copyrightable (and the case law basically says the converse). Instead, the answer should have at least touched on the possibility of trademark infringement or unfair competition.

   Second, assuming arguendo that copyright is the most relevant legal theory (or even a relevant legal theory), the columnist failed to note that the amount taken is a critical factor in copyright actions. The question posed states that the title is a single line of a poem, and that line does not include either the title of the poem or a proper name. I have found no reported or unreported case in which that amount of copying—even of recent material that was clearly in copyright—was found to be an infringement.

   Third, the columnist mixes her copyright-term definitions. She correctly notes that, since Lord Byron died in 1824, a work published in his lifetime is in the public domain in the US. (The columnist cannot be blamed for editorial ineptitude here in creating a minor misstatement.) However, in the very next sentence she jumps from the "measured by lifetime-plus-years" system to the "95 years after first publication" system (that in any event could not apply in this context because first publication of Byron's poetry was not in the US) without any explanation.

   That the columnist came to the correct conclusion—the stated use does not created a copyright problem—does not excuse the incorrect and misleading analysis. The whole point of a column of this nature is to enable authors to at least ask the right questions concerning their own works. This one did neither.