QUESTION

I have composed and recorded an album based on a copyrighted novel. Do I need to be worried about copyright infringement?

Asked on Aug 14th, 2012 on Intellectual Property - Colorado
More details to this question:
Hello, I have composed and recorded an album based on (kind of like a soundtrack to) a copyrighted novel. The album has the same title as the book, and the song titles correspond to the book¿s chapter titles as well. The album is mostly instrumental, and what few words it has are my original lyrics, except a 20-30-word snippet in one song that I took directly from the book. There are 40 songs (and chapters) in all. It¿s really meant to be somewhat of a tribute to the book, as well as a work inspired by that book. I self-publish my own music (I¿ve made several other albums) and I make them available for free download on the internet, as well as give away free CDs. I¿ve never asked for or received a penny for my albums, and I don¿t plan on doing so. Do I need to be worried about copyright infringement? My understanding is that my project might fall into fair use, seeing as I¿m not creating competition or taking away a market for the book, as well as the fact that (to my knowledge)
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1 ANSWER

Litigation Attorney serving Greenwich, CT
Partner at Hilary B. Miller
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This is an extremely interesting question. As a general matter, in order for a work of authorship to infringe the copyright in another work, the late work must be substantially similar to the copyrighted work. This means that the expression (not the ideas, outline, plot, etc.) must be similar. In your case, there is simply no similarity between the novel and your album. To the extent that you have copied at all, you have taken an immaterial excerpt, and your non-commercial use is quite plausibly a "fair use" of that limited copyrighted material. It would be very difficult for the owner of the copyright in the novel to make out a worthwhile copyright-infringement claim against you, and it seems as if he or she would have little commercial incentive to do so, since there is no obvious monetary benefit that you are diverting from the author. A relevant and possibly more difficult question is a trademark-law issue. Since your work and the earlier work have the same title, the owner of the earlier work might assert that consumers are likely to be confused into believing that your work is somehow endorsed, sponsored or originates with the creator of the original work. This claim is probably relatively easily defeated by the notion that book titles are entitled to only very limited protection under the Trademark Act. You could further insulate yourself against this claim by including a prominent disclaimer on copies of your recordings. Thanks for a very fun inquiry. If you feel like it, email me and send me the details.  
Answered on Aug 14th, 2012 at 7:53 AM

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