Title defense: What happens when duplicate names face off?

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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."


Twitter @MarkCaro

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