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AGO 1951 No. 76 - June 21, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

WASHINGTON STATE APPLE COMMISSION ‑- COPYRIGHT ‑- INFRINGEMENT

Our answer to your inquiries is that it would not be of much value to copyright your "Fact or Fable" title, and that the use of this title in your advertising would not be an infringement of the copyright on "Facts and Fables" even should it be renewed.

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                                                                   June 21, 1951

Washington State Apple Commission
Yakima,Washington                                                                                                                Cite as:  AGO 51-53 No. 76

Attention:  Mr. Robert W. Johnston

Dear Sir:

            This is in reply to your letter of June 15, 1951, in which you requested our opinion concerning the use of the phrase "Fact or Fable," as a title for an advertising scheme for Washington apples.

            From your letter and the documents attached, it appears that a novelty satire entitled "Facts and Fables" is copyrighted which is quite similar to the title you have adopted.  It further appears that the "Facts and Fables" copyright expires in July 1951.

            In your letter you ask the following two questions:

            "1. Should we, through your office, attempt to copyright our title immediately or upon the termination of the protection now enjoyed by the similar title?

            "2. Should we, in line with the paragraph in the wire mentioned above, not bother to do anything about copyright and assume that it is permissible to use the title for an ad series?"

             [[Orig. Op. Page 2]]

            Our answer to your inquiries is that it would not be of much value to copyright your "Fact or Fable" title, and that the use of this title in your advertising would not be an infringement of the copyright on "Facts and Fables" even should it be renewed.

                                                                     ANALYSIS

            Our answer herein is based on the proposition that no property right exists in a mere title, even though the thing to which it applies is copyrighted.  The copyright "Facts and Fables" applied to the novelty satire is nothing more than a title.  It appears to us that this is also true of "Fact or Fable" as applied to your advertising scheme for Washington apples.

            The law in this respect appears quite clear, and the rule is that a title must attain a secondary meaning or significance before any property rights in it can be protected.  Becker v. Lowes, Inc., 133 Fed. (2d) 889.  Stated another way, a copyright does not carry with it the exclusive privilege of using the title by which the copyrighted material is known.  Affiliated Enterprises v. Rock-Ola Manufacturing Corporation, 23 Fed. Supp. 3.

            Thus, even though "Facts and Fables" is now copyrighted and may be renewed, this copyright or its renewal offers no protection to the owner beyond the material or thing as a whole, and the title is available for all to use.  It was stated in Lone Ranger, Inc. v. Cox, 39 Fed. Supp. 487, that "the title to copyrighted work may be used by others even to the extent of applying it to similar works of art or literature so long as the author's expression of his idea is not copied."

            Consequently, titles not being within the protection of the copyright, there can be no infringement in the use of the title or one similar to it by another.  This being the case, then it is apparent that there is little to be gained by securing a copyright for the Commission's "Fact or Fable" advertising title.

            We herein return your file.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General

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