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Asked & Answered: Can a Public Domain Book be a Trademark?

Q:  I have a letter from the Copyright office that a book, written in 1880, was in public domain.  I wrote an adaptation of that book into a screenplay.  I then found that someone had taken the authors works (28 books) and trademarked them on the Internet.  I talked to an attorney who said that I would probably win in court, but if they fought it, I would have to defend it.

What is your take?  Can I move forward, stating that it is “based on” or just write a new  original script, using the same concept?

A:  This is one of those questions that really requires a lawyer to have all of the specifics, and to conduct a bit of research before giving a definitive answer.

Generally, if the book is indeed in the public domain, you're free to proceed with your adaptation.  But, the fact that the title of that book has been registered as a trademark MIGHT interfere with your use of that title as the title for the film, but since trademark protection extends only to the specific category(ies) of the goods or services for which they're registered, it's possible that the registration doesn't even extend to a film project by the title in question.

I'd advise consulting a lawyer who can run a quick search of trademark office records to clarify what's protected.


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2 Responses to Asked & Answered: Can a Public Domain Book be a Trademark?

  1. Could the screenwriter merely give the piece another name, and stating it’s “based upon” the novel, as many screenplays have done? Or would the mention of the novel’s name in that way also cause possible trouble?

    • Sure, but that wasn’t what the questioner was asking. Mentioning the novel as the work on which the film is based is probably not a problem.

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