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Title defense: What happens when duplicate names face off?

Mark Caro

5:16 PM EDT, October 23, 2013

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Can Harvard Lampoon give its Hobbit parody the same title as a local author's? The Wobbit is another example in a spate of duplicate titles that have been coming down the cultural pike.

Paul Erickson was doing that thing that writers do — looking up his book on Amazon — when he spotted something funny in a not-ha-ha-funny kind of way.

Beneath his 2011 book listed as "The Wobbit A Parody (of the Hobbit)" was "The Wobbit: A Parody" by the Harvard Lampoon, with a publication date of Nov. 26, 2013 — another example in a spate of duplicate titles that have been coming down the cultural pike.

On one hand, this Oak Park-based writer said he was flattered because someone else thought "The Wobbit" was the funniest variation available on "The Hobbit," J.R.R. Tolkien's beloved 1937 fantasy novel that is currently being serialized in blockbuster movies. But he also was concerned that once the Harvard Lampoon's "Wobbit" came out, via the Simon & Schuster imprint Touchstone, his own "Wobbit," self published as a Kindle book and paperback via Amazon, would get dwarfed, so to speak.

(Quick disclosure: Erickson is a member of a writers' group to which I belong, and Simon & Schuster published my 2009 book "The Foie Gras Wars.")

"I don't want to be a bad guy here and make life difficult for this guy at Harvard," said Erickson, who works as a corporate trainer by day. "At the same time, isn't it odd that he and his people have written a book with a title that is functionally identical to mine on the same subject within two-and-a-half years of me writing this book? I have a hard time believing that no one in his team of writers Googled 'Hobbit parody' or 'Wobbit.'"

For what it's worth, when you Google "Hobbit parody," you get two YouTube links to unrelated video spoofs and then the Amazon listing for Erickson's book's. When you Google "Wobbit," you get an Urban Dictionary definition ("An insult refuring(sic) to a mixture between A Hobbit from Lord of the Rings and A Wookie from Starwars (sic)") followed by Erickson's book on Amazon and then Erickson's own website, thewobbitaparody.com.

"Either they didn't look it up, which seems odd, or they did look it up and chose to ignore it, for reasons beyond me," said Erickson, who has not taken any legal action at this point.

"The Wobbit" is far from the only recent example of titles in the entertainment/cultural realm that have people seeing double. The Weinstein Company and Warner Bros. engaged in a heated legal and public battle this summer regarding the Weinstein release initially titled "The Butler" but ultimately retitled "Lee Daniels' The Butler." Warner, which had released a short comedy called "The Butler" way back in 1916, prevailed in blocking Weinstein from using the same title.

Yet this fall's race-car drama "Rush" didn't have to be retitled "Ron Howard's Rush" despite the 1992 Jason Patric-Jennifer Jason Leigh drug-world drama with the same name. This summer's movies "Getaway" and "The Heat" bore no relation to previous movies called "The Getaway" and "Heat," and the upcoming Vanessa Hudgens pregnant-teen drama "Gimme Shelter" has nothing to do with the identically named 1970 Maysles brothers' Rolling Stones documentary.

Many books share titles as well, whether we're talking about Sir Arthur Conan Doyle and Michael Crichton releasing dinosaur-themed novels called "The Lost World" 83 years apart or Kate Atkinson and Jill McCorkle having novels titled "Life After Life: A Novel" published a week from one another this spring.

Don't even get started on song or album titles. At least one "Hold On" song seems to come out each year, and if you say you like "Crazy," are you talking about the Gnarls Barkley song or Seal or Patsy Cline/Willie Nelson or Aerosmith or … ?

The reason for all of this overlap is simple.

"Copyright does not protect titles generally," said Chicago-based entertainment lawyer E. Leonard Rubin of the firm Querrey & Harrow. "Copyright laws consider that titles are just too short, and nothing that is terribly short can be copyrighted."

Yet, Rubin said, "I cannot write a play called 'Death of a Salesman.'" The reason isn't that he'd be violating a copyright but rather that "Death of a Salesman" is recognized as a trademark, so another play by that name would cause confusion in the marketplace.

"Confusion is the essence of trademark law, not copyright law," Rubin said. "You can't confuse the public."

So it is that a moving company and an airline can share the name United, but you couldn't call a new beverage Coke without stirring up trouble.

But, wait, you say, it's not like anyone was going to confuse this year's "The Butler" with a 97-year-old short.

Well, Hollywood operates by its own set of rules, and the applicable ones in this case involve the Motion Picture Association of America and its Title Registration Bureau. Producers, distributors and studios that subscribe to the bureau can register a feature-film title based on an original screenplay, and that title will be protected for four years after its theatrical release, Title Registration Bureau director Mitch Schwartz said. (Movies made from adapted screenplays come with a different set of rules.)

After four years another movie can use that title, no permission needed, unless the title has been given permanent title protection, which a producer/distributor/studio can do with up to 500 of its titles. In that case, Schwartz said, someone wanting to use the same title would have to get permission from whomever protected it.

Schwartz wouldn't comment on "The Butler" or any other specific films, but Warner lawyer John Spiegel wrote in a letter made public in early July that the studio added "The Butler" to its list of permanently protected titles in May 2010, so when Weinstein began promoting its film in September 2012 as "The Butler" without getting Warner's permission, it was in violation of MPAA rules.

Whether this conflict stemmed from Warner's actual concern over protecting a very old title or some bad blood between the two companies didn't matter. The MPAA sided with Warners and fined Weinstein $400,000, though it eventually allowed the title "Lee Daniels' The Butler" to stand.

As for "The Wobbit," Erickson emailed his concerns to current Harvard Lampoon President Eric Brewster, writing: "It's frustrating to see my book, 'The Wobbit A Parody,' placed in jeopardy by your use of the same title for your similar book. I'm concerned about losing my market once The Harvard Lampoon, with considerable influence and resources, publishes a book that has the same title and subject matter as mine."

Erickson also noted his surprise that the authors hadn't used the term "Boggies" for Hobbits, as the Harvard Lampoon had in its popular 1969 parody book "Bored of the Rings." "Your book could then be titled 'The Boggie' and would properly become the prequel to the Harvard Lampoon's parody masterpiece," he wrote.

Brewster responded with a long, graciously toned email that called the title overlap "coincidental," with the Lampoon's resulting from a brainstorming session.

"It does appear our titles are in fact different — while yours is 'The Wobbit A Parody (of Tolkien's the Hobbit): or, There Goes My Back Again,' ours is simply 'The Wobbit: A Parody,'" Brewster wrote, making a distinction that brings to mind Vanilla Ice's explanation that the bass line to his "Ice Ice Baby" isn't the same as that of Queen and David Bowie's "Under Pressure" because it has one more "ding" in it.

"Even if they were identical, I'm guessing you know by now that titles aren't copyrightable, and, not surprisingly, there are many, many books out there that share the same titles even though they are by different authors," Brewster continued, going on to note that the books have different plots and covers. "I do not believe that readers will confuse the two books. It will be clear ours is by The Harvard Lampoon and yours is by you."

Lauren Spiegel, the book's editor at Touchstone, said in an email interview that she also doesn't see a conflict or the potential for confusion. "We became aware of the title of Paul Erickson's book, but we loved the title the Lampoon had thought up and wanted to stick with it," she wrote, noting the different cover treatments, titles and approaches, as well as the Lampoon's history with Tolkien. "We do not have any plans to change the title or take any other action in response to Mr. Erickson's book."

Rubin said if two works can be shown to have been created independently over a parallel time frame with no access to one another — like if someone in Chicago and someone in Los Angeles each wrote a song with a similar melody line — some overlap can be defended. But that's not what happened with these titles, Rubin added, anticipating confusion when the Harvard Lampoon's book is sold alongside Erickson's on Amazon.

"(Erickson) has rights, and I believe that they are superior to Harvard's rights," Rubin said. "This is not for Harvard an open-and-shut case of they have the right to do this …. They come out with the book, and there are sales, those could wind up going into the other guy's pocket if there's a lawsuit."

Erickson, who said he got mixed responses when he contacted lawyers about this, said he's daunted by the potential expense of fighting a major publishing house. He said he'd anticipated some competition in the "Hobbit"-parody game but not this.

"It's unfortunate that it's the Harvard Lampoon that's now competing with me," he said. "It's much, much worse that they're using my title. Even if what they've done is legal, it does not feel right."

mcaro@tribune.com

Twitter @MarkCaro