Movies and Books Title : A Conflict between Trademark and Copyright?

Some of the most popular pastimes amongst people are reading books and watching movies. These were the two activities that people usually engaged in, particularly during the lockdown period. The number of subscribers of OTT platforms such as Netflix, Amazon prime, etc. saw a sharp increase during this period. As there are such a high number of people reading books and watching movies, equally high is the number of books and movies coming every year. There are millions of books getting published every year and a good number of movies being made each year. In such a scenario, it becomes difficult to ensure that the titles of the books and movies are not the ones already being taken up by some other books or movies.

To protect the title of a book or movie from getting reused by some other author or director, it becomes vital for the authors to take the path of intellectual property rights. However, the question arises under which rights can these titles be protected? Is it Trademark or is it Copyright?

CopyrightSome of the most popular pastimes amongst people are reading books and watching movies. These were the two activities that people usually engaged in, particularly during the lockdown period. The number of subscribers of OTT platforms such as Netflix, Amazon prime, etc. saw a sharp increase during this period. As there are such a high number of people reading books and watching movies, equally high is the number of books and movies coming every year. There are millions of books getting published every year and a good number of movies being made each year. In such a scenario, it becomes difficult to ensure that the titles of the books and movies are not the ones already being taken up by some other books or movies.

To protect the title of a book or movie from getting reused by some other author or director, it becomes vital for the authors to take the path of intellectual property rights. However, the question arises under which rights can these titles be protected? Is it Trademark or is it Copyright?

Confusion between Trademark and Copyright concerning Titles

Amidst this rising debate between trademark and copyright, it becomes essential to first understand the difference between these two rights. Trademark is defined under Section 2 (1)(zb) as any mark which is capable of being represented graphically and which can distinguish one person’s goods or services from that of others including their shape, packaging, color combination, etc. Whereas, Copyright includes work like artistic, literary, musical, dramatic, etc. as per Section 13.

In a recent judgment of Krishika Lulla v. Shyam Vithalrao Devkatta, the Apex court observed that the term ‘Title’ does not qualify as a ‘literary work’ for which copyright is granted as per Section 13. According to the facts of the case, the plaintiff alleged the infringement of copyright by the defendants for releasing a film named ‘Desi Boyz’ and claimed their copyright over the title ‘Desi Boys’. The court while giving their judgment observed that copyright is granted for original words and the words ‘Desi’ and ‘Boys’ are so common that there is nothing original in them and hence, they do not qualify as ‘literary work’.

In Kanungo Media (P) Ltd. v. RGV Film Factory & Ors., the plaintiff argued to enjoy the copyright over the title of the movie ‘Nisshabd’ and that no one else can use the same. The High court of Delhi while rejecting the same, stated that only copying the title and not the plot, characters of the film, songs, etc. cannot be brought under the ambit of copyright as the title alone does not qualify as a literary work.

Applying the same principles to the book titles, it is very well clear that just like the movie titles, book titles also cannot be subjected to copyright because the title is a word that can have multiple meanings and different authors may use the same title in different senses. Hence, the titles of books or movies cannot qualify as ‘literary work’ and thus, cannot be granted copyright protection.

However, the titles can be granted protection of trademark under class 41 of the Trademark Act, 1999 which was clarified by the court in the Kanungo case. The titles of the cinematographic work cannot be reused in a manner that can create confusion in the minds of the people. As per the case, trademarks can be granted for titles in two kinds of work, that is, single work and a series. While the series indicate the same source of each part, making it easy to get the trademark registered, in the case of single work, it must be shown that the title of the book or movie has acquired a secondary meaning in the minds of people.

The debate between Trademark and Copyright

With the fast-rising number of start-ups, development of technology and rising creativity amongst people, the importance of Intellectual Property has increased to a huge level. To protect the rights of the individuals and to encourage creativity and inventions, the intellectual property from earlier limited to patent, copyright, geographical indications and trademark has now also been extended to include within its ambit designs and trade secrets. However, with this rising importance, conflict of overlap of one right over the other is also rising. One such example is the overlapping of trademark and copyright.

Although at the outset, we see, that both the trademark as well as the copyright are two distinctive rights governed by totally different acts. Copyrights are granted for the protection of original work like literary, artistic, musical, dramatic, etc. whereas trademarks are for the protection of brand names, slogans, logos, signs, symbols, etc. to differentiate one product from the other. However, despite this difference, there is a huge existing conflict between both of these rights and sometimes it becomes hard to determine whether a person needs a trademark or copyright

These situations of overlapping generally arise in the areas of logos, artistic signs, slogans, short sentences, and other such things. When a trademark of a particular organization consists of a logo, color combination, or a letter, and when that very logo, color combination, or letter depicts a creative expression, it enters the ambit of copyright besides the original trademark. If in such a situation, the owners of the trademark and copyright concerning the same logo, color combination, or letter are different, conflict tends to arise between both the owners. For example, the logo of a particular brand of t-shirt printed on it may come under the ambit of a trademark as it distinguishes this brand’s t-shirt from other brands but if that logo is written creatively and depicts a creative expression, then the same could also come under the ambit of copyright as an artistic work.

Such overlapping may also arise in the case of Calligraphy work. Calligraphy is a creative way of writing something which is an artistic work and thus, can be protected under copyright. However, if the logo or a symbol of a particular organization is being made in a creative way using the same calligraphy, then the same would also be required to be protected under the trademark, again giving rise to overlapping. Thus, there are many such areas where this overlapping between trademark and copyright exists and it becomes difficult to identify which right’s protection should be applied for. Generally, in such a situation, people apply for the protection of both of them to protect their work from undesired use.

Conclusion

Thus, as discussed above, authors looking for protecting their books’ and movies’ titles under intellectual property from undesired use must get them registered under the trademark law and not copyright law since the copyright does not offer any remedy in such a situation. Copyright only protects the complete original work and not a title alone as clear from the above-mentioned cases. Therefore, in order to restrict the other authors from using the same title, registration under trademark must be preferred instead of copyright.

Author:  Khushi Agarwal – a student of Symbiosis Law School, Noida, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at IIPRD.

 

Leave a Reply

Your email address will not be published.

twelve − 3 =

Archives

  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010