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SA Fair Use Doctrine for Book Title?

Discussion in 'Intellectual Property Law Forum' started by Ashleigh, 7 May 2015.

  1. Ashleigh

    Ashleigh Member

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    Hi, I'm trying to find out if I can use four words from a Pablo Neruda Sonnet in the title of my book.

    The specific title of the poem is Love Sonnet XII, and the words I want to use are 'a clash of lightnings'.

    The translated quotes of this work that I've found online actually vary as to what the words are. One version is 'a clash of lightning-bolts'. But the version I want to use is 'a clash of lightnings'

    I don't know if that makes any difference or not, but I know that Pablo Neruda's works are not yet in the public domain. So I want to know if using four words in my book title would be considered fair use under intellectual property law?

    Thank you.
     
  2. Tim W

    Tim W Lawyer

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    The doctrine of "fair use" does not operate in Australia the way it does in America.
    You do not appear to be dealing in the copyright work (the sonnet)
    for any of the purposes provided for in section 40 of the Copyright Act 1968 (Cth)

    So , short answer is... as the law in Australia stands today - "No"
     
    Ashleigh likes this.
  3. Ashleigh

    Ashleigh Member

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    Thanks for your reply, I appreciate it.

    I should have mentioned the book will be available worldwide, but the primary target audience is in America. But I think I will have to come up with another title now to be on the safe side.

    Ashleigh
     
  4. Rod

    Rod Well-Known Member

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    Tim,

    Does copyright apply in this case? I could write a book and title it 'raining in Melbourne' but this doesn't give me copyright to these words. Thought copyright applied to the main body of the work.

    Wouldn't I have to apply for, and be granted, a trademark to protect the title?
     
  5. Tim W

    Tim W Lawyer

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    Rod

    Copyright applies to an entire work.
    So, copyright in your book (a "literary work"), including the title,
    would indeed accrue to you in respect of the whole of the work.

    You may be thinking about trademarking a phrase - that's different.
     
  6. Rod

    Rod Well-Known Member

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    Agree trademark is different.

    However I thought individual phrases, including a title, do not give an author copyright unless they make up a significant portion of the work (ie very short story).

    I assumed this is also why many books can have the same title.

    My knowledge of copyright is very limited.
     
  7. Tim W

    Tim W Lawyer

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    The word you usually see is "substantial". As in "a substantial part of the work".

    As a general rule, bare titles are not in themselves substantial enough to attract copyright protection.
    There is some recent Australian caselaw to this effect.
    (And yes, that's how come books can have the same or very similar names)
    That's equally true of quotes, extracts, and acontextual phrases.
    But this line is not a title. It's better described as an extract.

    Thing is, the definition of "substantial" includes important, essential, or distinctive.
    I suggest that that line, being clearly in a copyright literary context, being atypically structured,
    and clearly so a departure from day to day expression (ie nobody much says "lightnings" in the plural)
    that it is distinctive enough to be substantial.... and therefore capable of attracting copyright protection.
     
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