Let’s begin with more questions. How does one copyright a title? How does one trademark it? Usually neither copyright nor trademark law protect movie or television project titles. The Copyright Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). What does this mean? To qualify for copyright protection, a work must have some amount of creative “authorship” by a human and be “fixed in a tangible medium” such as in writing, on film, or on a computer. Copyright protects “original authorship” the moment they are created and fixed in a medium to encourage and provide an incentive for creativity and the great effort it takes to create. While copyright is important in the chain of title of one’s project, the U.S. Copyright Office does not register titles because they don’t have the “minimum amount of creative authorship” required for registration. So as film titles and television project titles are usually short, they don’t qualify for copyright registration. It’s the same with phrases and names. One can’t copyright a title of a book, film, an album, song, or television series.
One may, however, on specific occasions be able to trademark a title of a movie or a television project. Trademarks and servicemarks as source identifiers identify and distinguish the source of a good or service as coming from a particular company, service provider or manufacturer preventing consumer confusion regarding who created the goods or provided the services. To qualify for trademark protection, a mark must be distinctive, i.e. it can’t just be generic or descriptive. Brand names and designs, for example, can be protected by trademark. Generally film titles only describe movies instead of distinguish or identify their source; therefore, they usually don’t qualify for trademark registration. However, when a film or a television project is part of a series, the title may qualify. For example film titles such as “Star Wars”, “Kung Fu Panda”, “Toy Story”, or “Endless Summer” qualify for trademark protection even though the titles may just describe what the movie is about. Now the title is more like a brand. This is the exception rather than the norm with trademarking film titles or television project titles.
So if copyright and trademark law do not protect movie titles, why aren’t there more movies with the same title? For feature films the entertainment industry has come up with another method of solving this quandary to protect titles. In 1925, The Motion Picture Association of America (MPAA) formed a title registration bureau. Members of MPAA can register movie titles with the registration bureau. The titles are reserved on a first-come “first-reserved” basis. All members agree not to use titles that are already registered without permission from the original user of the title and any disputes are resolved privately. This MPAA system is enforced through contractual rights, providing the entertainment industry a mechanism for regulating the reuse of film titles where copyright and trademark laws don’t apply. While the MPAA can manage title use with its members, i.e. those who have voluntarily decided to join such all the major studios and Netflix, it does not mean it can force a producer who is not a signatory to stop using a title. Also, just because a company registers a title with the MPAA it doesn’t automatically mean that such title hasn’t been used before. The producer still needs a title search and an opinion letter to be certain that someone outside this voluntarily opt-in system of MPAA hasn’t already used such title. Also, television titles are not covered. Producers may want to search for similar titles to make sure that they aren’t already used and/or protected and, if so, should clear the title with the prior title users to avoid any legal issues. Before deciding on a final title for one’s project, one may want to research the title and seek sound, experienced legal advice.
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