Abstract
The title of a book, film or other creative work may be protected even against someone who does not copy its content. Protection depends primarily on the title’s ability to identify the work and on the risk that the public may confuse it with another work.
When does a title become a distinctive element of a work?
Choosing the title of a work is often less straightforward than it may seem. It must be able to encapsulate a book, film, podcast, painting or creative project in just a few words, without necessarily describing its content.
Some titles eventually acquire particular strength. Simply reading or hearing them is enough to immediately associate them with a specific work.
It is precisely this identifying function that is relevant from a legal perspective.
A title does not need to achieve exceptional fame in order to qualify for protection. What matters is that it is capable of performing an individualising function, meaning that it enables the public to identify that specific work and distinguish it from others.
The issue becomes particularly relevant when a second author uses the same title – or a very similar title – for another work.
Imagine, for example, that a novel is published under a particularly distinctive title and that, several years later, another book is released under the same name. Or that the same title is used for a film, a series or a podcast.
Is the fact that the works have different content enough to rule out any legal issue? And, above all, are we dealing with plagiarism?
Not necessarily. When the creative content of a work is copied, the issue concerns plagiarism or copyright infringement – a topic we have also addressed in the article “How can we draw the line between inspiration and plagiarism?”. When only the title is reproduced, however, a different set of rules applies, specifically aimed at protecting its identifying function.
Does the law protect a title even if it is not original?
Article 100 of Italian Law No. 633 of 22 April 1941 (the Italian Copyright Law) provides that the title of a work, where it identifies the work itself, may not be reproduced on another work without the author’s consent.
The wording of this provision is important because it helps dispel a fairly common misconception. A title does not necessarily have to constitute a creative and original work in itself in order to qualify for protection.
Italian case law has clarified that a title is not protected as an autonomous asset by virtue of its own creativity, but rather because it constitutes an element capable of identifying the work to which it refers. What must therefore be assessed is its distinctive or individualising capacity (Italian Supreme Court, Civil Division, 4 September 2004, No. 17903; Italian Supreme Court, Civil Division, 19 December 2008, No. 29774).
This also means that a word does not necessarily have to be invented by the author in order to become a protectable title. An existing word may, in the context of a particular work, acquire sufficient identifying strength for the public to associate it specifically with that creation.
The reverse is also true. Particularly common or descriptive expressions, or expressions closely linked to the genre of the work, may have little individualising capacity. Consider, for example, a title that merely describes, in very general terms, the subject matter of a romance novel, a professional handbook or a documentary.
This distinction has clear similarities with the distinction, under trademark law, between “strong” and “weak” marks (see also: Strong vs. weak trademarks: the “Peperino” case – Canella Camaiora).
The Italian Supreme Court has in fact clarified that a generic or descriptive title will normally enjoy a narrower scope of protection, unless over time it has acquired particular distinctive capacity through use. In such cases, even a relatively limited degree of differentiation may be sufficient to avoid a likelihood of confusion.
A highly individualising title, on the other hand, may withstand more significant changes without losing its recognisability.
This is why determining who first used certain words is only the starting point of the analysis. The next question is what those words actually represent to the public.
When can two similar titles create confusion?
Here too, the law avoids automatic conclusions. Article 100 of the Italian Copyright Law expressly provides that protection does not apply where the same title is used for works “of such a different kind or character as to exclude any possibility of confusion”.
It is therefore not enough simply to place two titles side by side and assess their literal similarity.
The first step is to determine how distinctive the earlier title is. A commonplace or descriptive expression will normally have less identifying strength than an unusual or highly distinctive title.
The works themselves must then be considered.
“Kind” may refer to the category to which the works belong – for example, a novel, a film or a work of visual art – while “character” focuses attention on their more specific features, such as genre, subject matter and content.
The degree of distance between the works may therefore be decisive.
The same title used in completely different contexts may not give rise to any interference. Conversely, where the works belong to the same sector, target the same audience or have particularly similar characteristics, the risk that the public will establish a connection between them increases.
It is therefore necessary to put oneself in the position of the relevant public and consider the actual impression created by the title.
For precisely this reason, likelihood of confusion cannot be reduced to a mathematical rule. There is no percentage of similarity beyond which a second title automatically becomes unlawful. The strength of the earlier title, the similarities between the signs, the nature of the works and the context in which they are used must all be assessed together.
Reputation may also affect this assessment, but it is not necessarily a prerequisite for protection. A title that is already highly individualising may be protected even if the work has not achieved exceptional circulation or success; conversely, prolonged use over time may help strengthen a title that was initially less distinctive.
Does registering a title as a trademark provide stronger protection?
As noted above, the protection afforded by Article 100 of the Italian Copyright Law shares certain similarities with trademark protection, but the two legal regimes are not the same.
A title is protected because it serves as an identifying element of the work to which it belongs. A trademark, by contrast, is an autonomous sign intended to distinguish goods or services on the market.
The distinction becomes particularly apparent when the name chosen for a work begins to take on a life beyond the work itself.
This may occur with the title of a saga, television series, podcast, format or publishing project intended to develop over time. The same name may be used for subsequent works, events, products, services or merchandising activities. Consider, for example, franchises such as Harry Potter, where the original title has also become a sign – registered by Warner Bros – used to identify a much broader ecosystem of works, products and services.
In such cases, it may therefore be appropriate to consider registering the title as a trademark.
The Italian Industrial Property Code also requires trademarks to possess distinctive character. Article 13 of the Italian Industrial Property Code excludes, among others, signs consisting exclusively of generic names or descriptive indications relating to the relevant goods or services, unless they have subsequently acquired distinctive character through use.
From this perspective too, therefore, choosing a highly distinctive title may offer not only a communication advantage, but also a legal one.
Registering a title as a trademark does not, however, automatically confer an absolute monopoly over those words. The scope of protection will depend on the goods and services claimed, any existing earlier rights and, in cases involving similar signs, the possible likelihood of confusion on the part of the public.
For this reason, where a title is intended to acquire independent commercial value, its selection should be accompanied by an assessment taking both perspectives into account: the availability of the title in relation to existing works and its potential registrability as a trademark.
Reviewed by: Margherita Manca
Publication date: 7 October 2026
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Gabriele Rossi
Laureato in giurisprudenza, con esperienza nella consulenza legale a imprese, enti e pubbliche amministrazioni.