LEGALLY SPEAKING, IT DEPENDS: Movie Titles

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As William Shakespeare long ago asked, “What's in a name?” A rose by any other name would still smell as sweet, but, it is a widely held belief that a movie by any other title might be a stinker. There is a lot of furor over movie titles and lots of money can be spent on getting just the right one for a film. You would think with all that attention and expense, they'd be completely protectable and locked away from other people's grubby paws. The reality is less than ideal, because, as always, it depends.

Legal protection of titles is... iffy

First off, if you recall our discussions on copyright you'll probably not be surprised that something as small as a title would be very difficult to raise above a de minimis (def.: too little to bother with,) level sufficient for copyright protection. At best, a title is a few words, a sentence at most. Even a poem has more substance to qualify it. Trying to add enough words to have substance would run into the problem of the movie house marquee running out of space or letters.

So if copyright is out, what other forms of protection are available? Some have found success pursuing grounds along trademark and similar legal protection approaches. In brief, trademark law is focused on the proper flow of commerce to the intended consumer of that commerce (e.g. you). Something that is not always made clear (even among lawyers), is that trademark law is first and foremost, consumer protection oriented. Trademark law is devised and works best when it ignores the desires of the producer of the goods and concentrates on the expectations of the receiver of those goods. If the consumer is happy and not being duped, even if it is not the ideal world for the producer, then the producer should have no recourse to change things. Trademark laws, and their like (in the U.S. many of the trademark-like laws are embodied in what is commonly referred to as the Lanham Act,) try to use laws to clarify the ownership of property being sold so that the end consumer isn't hoodwinked into getting something other than what they expected.

Since the film industry has a significant aspect of commerce in its function, it's a natural turn to commerce-centric laws. But it isn't an easy fit. Qualifying for Federal trademark protection in the U.S. as in many other countries, has a lot of quirks and strictures that govern it and isn't always easily accomplished. The movie industry isn't the typical user of trademarks and so, some of those hurdles are higher for it than for other trademark seekers. Things like, the “mark” has to be a symbol attached to or associated with the end product, not the product itself. There must be more than a single use of the mark/product – something even a blockbuster movie without sequels yet, has a hard time establishing. And the mark must be distinctive to the product, not just descriptive, and potentially needs to establish secondary meaning beyond the mere words in order to qualify. Even if a mark is registrable (remind me later to discuss common law trademarks as opposed to Federal ones,) it needs to be “used” in every category of goods it is registered for and must be continuously used (and regularly renewed) to maintain its protection.

Rarely are there successes in using trademark law claims in movie title cases. One somewhat successful attempt was in the battle between the movies, The Bridge On the River Kwai and the completely unrelated production based on the same place and similar time in history, Return From the River Kwai. After a legal tussle the original producers were able to establish that although the title referred to a common name of a place, the existence of the first film in the marketplace had established something of a secondary meaning - film goers recalled the movie when they heard that name. This successfully suspended the release of the second movie.

For a while.

Hollywood being what it is, business is business and a deal was worked out.

Trademark-like protection may not have as much paperwork, but, it is still hard to establish no matter what approach you try. For example, the Lanham Act allows a claim of passing off, that is a nefarious attempt to confuse the consumer into thinking they're getting the “real thing” when in fact they are receiving a cheap knock-off. It is easy to consider this when you look at those temporary table sales of shady looking DVD's on metropolitan street corners where you can get the latest blockbuster title even before it has hit the theaters. Actually this is likely to be settled on copyright grounds if the contents inside the DVD actually contain some grainy copy of the film in question. But if the contents are some other film entirely, or nothing at all, passing off might be the only viable studio recourse. Fraud is a criminal way to go too.

But when we consider the consumer, we have to remember that these trademark and like laws are useless to the movie owner when the consumer isn't being hoodwinked. If they know the difference between the two films with the same title, these laws won't be available to protect the studio's interests.

Though trademark and similar laws may be difficult for the filmmaker to use to protect a title, it may be the protection sought by someone trying to protect their trademark or name from being used in a title. Movies with titles like Harley Davidson and the Marlboro Man make lawyers nervous, because the trademark protected names could be points of litigation by the trademark holders who might not like what you're attempting to do with their product signifier. Even if the trademark owner seems keen on the movie idea, trademark law frowns on a trademark owner who doesn't protect the use of their name, threatening generification of the trademark (i.e. Kleenex or Aspirin) where they could lose their mark if not actively protected and controlled.

And using a non-trademark name isn't easy either. The movie titled, Being John Malkovich was written and named before approaching Mr. Malkovich to play the part. The writer risked not only losing a potential actor if he declined, but, if there is the issue of the performer's right of publicity to consider. That's where a person's name is famous and marketable enough to demand that all uses of it in the marketplace be approved to avoid false endorsement or devaluation.

Contract law is always an option to create a legal obligation to act or prevent a signatory party from doing something they would otherwise be legally able to do. The trouble is that a contract only applies to those who agree to be bound by that contract. Outside parties would still be free to act as they saw fit. But contract law is one of the ways that Hollywood has sought to protect titles, at least for some players.

The Motion Picture Arts Association, MPAA (the people with the voluntary ratings system) have had a system in place where producers, studios and the like can sign up with their Title Registration Bureau and protect the titles of films in their control from being used by other signatories to the agreement. At last report there were somewhere around 400 signatories to this mutual title protection agreement. (I say at last report because, curiously the MPAA's website no longer references the TRB at all.)

It is not a perfect protection, since those producers who have not signed into the agreement are free to use any repeat title they want, but, enough big name studios and producers have signed on to protect titles in most situations. Even if they cause a bit of controversy.

You may have remembered a while back a little bit of press furor about the title of a movie about the White House butler. Because both movie distributors, The Weinstein Company and Warner Brothers are both signatories to the Title Registration Bureau agreement, when Warner Brothers claimed the original title The Butler as its own (as a short film from 1916 in its vaults already had that title,) the parties were required to go into binding arbitration to settle things. Arbitration found for Warner Brothers and so the new film's title had to change or contractually authorized fines would be imposed. It was agreed that adding the director's name as a clarifier would alleviate the conflict and hence Lee Daniels' The Butler hit the theaters. The only legal reason for the change of title was the contractual obligation of the parties. If they hadn't signed to protect their own titles, they could happily have duplicated the titles of others. Interestingly, if a non-signatory decides to release a film next year titled The Butler neither the Weinstein Company nor Warner Brothers would be able to do much to stop it.

With protection of titles so difficult, why should you bother? There are business reasons to try to find a unique title that will help your film stand out in the mix. But there are times when being too unique or unfamiliar can cause consumer confusion in a bad way. Turning people away at the box office because they can't figure out what the movie's about or whether it's the same film they saw the trailer for is a bad thing.

Still, similar titles make it hard to find your movie. I've written and/or produced a few short films in the past and have realized we've occasionally made a bad title choice. One of the first short films I created is called The Writer. Go ahead and look for it on IMDB, I'll wait. If you look through the 200+ results you get when you use a general search it's hard to find. Even if you use an exact match (the “.” is part of the title,) it's still not unique. I didn't learn my lesson either with another short film of ours, The Notebook.

Getting lost in the crowd is one thing. Getting too attached to a title you've chosen is another. The creators of a work might not be the best to come up with a winning title. My favorite example is asking whether you'd prefer to read a book the author called Trimalchio at West Egg or its publisher's preferred title, The Great Gatsby?

And the writer is the farthest one to be able to dictate a title. Remember, you may love the title, it may perfectly fit your character's arc and encapsulate the theme. You may convince your producers and get the film created. Then a distributor can pick it up who can get you great distribution, there's just one problem. Another company has an old film in their vault with the same title and they're contractually obligated not to conflict. Or current events dictate that a name change can get much more free press and curious audience interest. Or even, they want to change the name to honor their recently deceased cat. It can happen. Don't marry a title, it can easily change.

As long as they still spell the writer's name right. (You are going to get credit, right?)

The Writer's Legal Companion: The Complete Handbook for the Working Writer
An important resource for Screenwriters... Features essential, irreplaceable
information on contracts, clauses, trademark, and copyright issues for the working writer.