Title defense: What happens when duplicate names face off?

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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.

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