Modern copyright law can feel extremely frustrating and broad. I belong to a couple of WhatsApp groups for creatives and any time the issue of copyright comes up, it proves to be one hot topic.
My novel, Shifting Sands, published in 2012 by Nsemia Publishers, is a story by Kemunto and her three girlfriends, all Kenyans but of different cultural heritage.
The reader goes on a journey with the four as they mature into young adulthood on this adventure called life, facing the world with their encounters, cultural intricacies and intertwined lives.
For the past month or so, readers and a couple of friends have drawn my attention to the fact that a Nigerian author, Ike Obidike, has recently published a novel by the same title and they were wondering if this is allowed by law. Obidike’s novel was released a couple of months ago.
Well, this past week or so I delved into research and came up with intriguing cases of many different novels with similar titles.
Apparently this is a grey area in most jurisdictions but well-defined in others. Just for the record, between 2008-2010 as I wrote Shifting Sands and was settling on my working title, my online searches only brought up mostly scholarly essays and research articles bearing the words ‘Shifting Sands’ as part of a longer title, for example, Steve Donahue’s Shifting Sands: A Guide on crossing the Deserts or Thomas Davis’ Shifting Sands: The Rise and Fall of Biblical Archaeology and more recently Khaled Fahmy’s Shifting Sands: The unravelling of the Old Order in the Middle East.
In recent times, there has been a proliferation of newer novels with the words “shifting sands” like Kay Thorpe’s The Shifting Sands, Radha Venuprassad’s Shifting Sands, etc and at the time of research I also remember a book by one author called Irah Moringa titled Shifting Sands: A Novel.
However, the book had neither a summary nor a synopsis coming up, so we concluded it was an out of print edition. I then settled on my title because I was born and grew up by the beach and my book is set at the Kenya Coast. On my research on American copyright law, for example, I learnt that slogans, ideas, names and titles are not protected by US copyright laws which is maybe why many books I came across have similar titles.
One overused title for novels is ‘Twisted’, shared by almost 100 books! To qualify for copyright protection in the US, a work needs to possess “a significant amount of original expression” and while “a significant amount of original expression” isn’t fully defined, the courts have ruled that short expressions like book titles do not qualify.
The US Patent and Trademark Office states that a trademark protects words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from those of others. So in a nutshell, once a book becomes successful enough to be considered a recognisable brand, it could be eligible for trademark protection. In short, using a title that has previously been used on another book is more often than not legal and lawful.
As to whether or not it is a good idea to go with a title that has already been used, that is a question best suited for an author and his editors. However, in my opinion if one has another title in mind that isn’t already in use, I’d rather consider changing it to avoid confusion. I am sure title-sharing is not ideal for any two publishers’ publicity or marketing departments because the last thing they want is consumer confusion.
If your publisher becomes aware of a same-title book/novel in the market, they will most likely suggest a different title which will be the best course of action if the similarly titled novel is in the same genre, with a similar topic and especially more so if published around the same time.
During my online foray for this piece I was surprised to find out that title-sharing is not an unusual phenomenon and that two favourite reads of mine have similar titles as other novels – Kate Atkinson’s Life after Life (which I’m currently re-reading) and Paula Hawkin’s The Girl on the Train.
I was taken aback because I was unaware of the fact that these two novels share a title with others. Both Life after Life by Atkinson and Jill McCorkle were coincidentally released at the same time in 2013 and both publishers/authors were unaware of the existence of the other title. Both authors were also relatively well-known.
Hawkin’s The Girl on the Train is a psychological thriller, set in contemporary London, with a female protagonist published to wide acclaim in 2015 while Alison Waines’ Girl on a Train, set in Australia was published in 2013 to almost no attention but whose sales have recently benefited from the confusion with Hawkin’s newer novel.
Hawkin’s novel shares almost all of the same words as Waines’ title “Girl on a Train” except the addition of the first “the” and the replacing of the “a” with a second “the”. In this instance though, it is Hawkins who picked an older title (less than two years old) of a less popular novel which has in turn benefited massively from the publicity of the latter newer thriller.
COMPETITION FOR SEARCH ENGINES
I am not sure if Hawkin was aware of the existing title as I have not come across any interview in which she has addressed the issue, but media interviews have highlighted instances of readers who have bought Waines’ book after confusing it with Hawkin’s thriller.
Other books which title-share are Fyodor Dostoyevsky’s The Double and Jose Saramago’s The Double. As I was researching this piece, my daughter was also surprised to learn too that one of her favourite reads, Stephenie Meyer’s hugely popular YA paranormal fantasy Twilight, title-shares with several other works!
To answer the question that I have been asked this past month, yes, one can write a novel with a title that has been used before – that is unless that title has been copyright protected, which most publishers or authors don’t do.
While similar titles confuse people when they search for it online, the one that’s more popular will catch the majority’s attention, it is therefore common sense that an author should not name their book after one that’s either popular or has just been released into the market – lesson here is to research thoroughly.
Coming closer home to Kenya, two books might have the same title or almost similar one, but the ISBN will differentiate them. However, I think it creates problems for online readers trying to find a book. This also creates competition for search engines.
It is hard enough to get your books ranked well, without creating unnecessary competition by naming your book the same way as an already existing title. It can be troublesome in the sense that if a reader is searching for one title and types it in, they may come up with a totally different book and purchase that instead!
Therefore, for readers searching online, my advice is that it is best to add the author’s name to the search. That way, there is no confusion. My two cents worth. That aside, I talked to couple of copyright lawyers and come to the conclusion that this is a gray area.
The lawyers I talked to concur that as far back as the 1980s and 1990s as they can recall, book titles were not subject to copyright. This in effect meant that as long as you are not trying to trade upon the prestige of the earlier book by that title, you are within the confines of the law to have a book with a similar title.
This means, in layman’s language, that as long as your book does not materially resemble the previous work, using the same theme, characters or locations, there is no problem. If you contravene these simple rules then treat that as a case of “Title Already Taken” and discard that working title!
The reason is that copyright is designed to protect works of creative authorship and it is not designed to protect how that work is identified in the marketplace. Furthermore, short phrases such as book titles rarely meet the requisite level of creativity to be considered for copyright protection. Subject to debate of course.
Moraa Gitaa is a 2017 apexart NYC (New York City) Fellow. She won the Burt Award in 2014 and was shortlisted for the 2010 Penguin Prize for African Writing. She is a member of PEN International. Twitter on: @MoraaGitaa