Asked and Answered: Using a pre-existing film title for a new screenplay

Damian asks about using a pre-existing film's title for his new screenplay. Here's my answer:

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QUESTION

Damian is wondering what the protocol was for using a title for my screenplay that, after checking on IMDB the title, has already been used on a produced motion picture. If  i used the title would I have to pay a fee to the owner's of the previous production?  In the past I've seen movies use an old title but I have no idea if compensation was required to do so.

ANSWER:

Well Damian, this is a little bit tricky.  Generally, the best legal advice is to avoid using an identical or confusingly similar title to a film that's already been released.

BUT, the law isn't that cut-and-dried.   Titles aren't protected by copyright law.  SOME titles are protected by TRADEMARK  and UNFAIR COMPETITION law, but not every title gets that kind of protection…     These laws deal with protecting the public against confusion.    For example, if you title your film “Halloween”, it's reasonable to expect that the public might consider your film to be another in the series of films that makes up the Halloween franchise.    But, if you chose a title of a very old, obscure, film, that kind of confusion is much less likely.

So, it really depends on the particular title in question, and whether there's a likelihood that the public will be confused  into believing that one is a remake, sequel, or related project to the other.

But even with that obscure classic film, my advice would be come up with another title… save yourself the hassle.