Miami, FL asked in Trademark and Intellectual Property for Florida

Q: Can I make a reference in a new song, to the title of a song that has been trademarked?

I composed a song where, at some point, I make reference to the title of an important social protest song that became a sort of an anthem, and I describe how important it was to rally the people and brake their fear to the oppressor. However I found out that its title has been trademarked, and I want to make sure that making such reference, is legally acceptable. I ONLY refer to its title, I do not copy the song at all, nor its melody.

1 Lawyer Answer
James L. Arrasmith
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A: In Florida, referencing the title of a trademarked song in a new composition can be legally permissible under certain conditions. This usually falls under the category of fair use, especially if the reference is made in a way that is transformative, such as using the title to comment on, criticize, or pay homage to the original work.

However, it's important to ensure that the reference does not create confusion about the source or sponsorship of your song. The trademark laws aim to prevent consumer confusion and protect the owner's brand identity. It's also crucial that the reference does not diminish the value of the original trademarked song or its brand.

While fair use can provide some protection, the boundaries of this doctrine can be complex and context-dependent. Considering this, it may be wise to seek legal advice to review the specific usage in your song to ensure it aligns with fair use principles. This step can help minimize the risk of legal challenges related to trademark infringement.

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