What's In a Name?

Usually, in the afternoons, I go to the Walgreens near my office to pick up a Red Bull, and I’m often amused by the jumble bin of $5 DVDs near the checkout counter. Most of them are ridiculous action movies with washed up B-listers. I remember a couple of years ago, when Snakes on a Plane was out in theaters, I looked into the DVD jumble bin and saw a title called Snakes on a Train. It looked like a ridiculous, opportunistic ripoff. Such an opportunistic rip off, I bought it! (Note: It’s still somewhere in my office, wrapped in plastic) Beyond very general plot similarities and a similar title, the two films are different, and only a fool would confuse Snakes on a Plane and Snakes on a Train. That being said, it is clear that the producers of Snakes on a Train were trying to cash in on the perceived popularity of Snakes on a Plane (the producers of Snakes on a Train also brought you the Transformers -like Transmorphers and The Day the Earth Stood Still -like The Day the Earth Stopped!). These films bring up some interesting copyright questions, but the question I am going to focus on is one of the film’s title.

Thinking up a good title for your film is tough, and most people, once they have chosen one, become very proprietary about it. If suddenly you realize there is another film already done or being produced that shares your title, you may be a little peeved. This actually happens more than you think. The thing with titles is that they are too short to receive copyright protection. For copyright purposes, a title is like a label of a copyrighted work. Likewise, trademarks don’t cover the title of a movie. You can trademark your production company, and the “Joe Blow presents” will have protection, but not the title.

From a legal standpoint, the only way to enjoin (fancy legal word for "stop") someone from using your title is through unfair competition law. Basically you must prove that the use of the title will likely confuse consumers. This is much harder than it sounds. In order to successfully prove likelihood of consumer confusion, you must first demonstrate that your title has acquired secondary meaning (a substantial amount of the public associates the title with your film). Then you must prove that their title will likely mislead or confuse consumers–i.e., they cannot differentiate the two titles. For instance, this would only occur if I thought I was buying Snakes on a Plane, but actually got Snakes on a Train. The fact that the producers of Snakes on a Train are free-riding off a more popular title does not mean that the public is misled or confused.

Of course this doesn’t stop lawyers from sending out cease and desist letters in the hope that the receiving party is ignorant of the law or lacks the financial resources to litigate. Unfair competition cases are extremely expensive. They typically require surveys and lots of legal fees. Because litigation is expensive and time consuming, both insurance companies and distribution companies require title reports.

Before a company distributes your film, they will require a title report. Any intellectual property or entertainment attorney can prepare a title report for you. It lists all films, books, songs, play, or any other else that uses the same or similar title. To do this they consult the U.S. Copyright Office, the U.S. Patent and Trademark Office, Internet Movie Database, and even a Google search. Just because your film has the same or a similar title does not mean that a company will not distribute it. However, they will assess the risk based on the report. Worst case scenario? They may suggest you change the title.

Sound complicated? Hollywood thought so and through the Motion Picture Association of America ("MPAA") established an arbitration system to avoid litigation–the MPAA Title Registration Bureau. Each year the Bureau registers thousands of titles and receives thousands of objections. Yet there are only a few title-use arbitrations each year. The system is only binding on members who voluntarily subscribe to the service. However, all major distributors and producers use the service. Most indie producers I work with do not use this because of the additional expense.

A good title is an essential component in marketing your film. It has the ability to encourage or discourage an audience member from checking the film out. However, unless the public would likely be confused or misled, a filmmaker most likely will not be able to prevent another individual from using the same or similar title. From a legal standpoint, the best way to protect your title is to make a quality film so that the public will associate the title with your work. The more people who see your film, the greater the chances are that you will acquire secondary meaning and that the public would be confused or misled by the same or similar title.

In the meantime, wishing everyone lots of success in 2010! And I hope Santa delivered everyone a copy of Snakes on a Train!