John has a question about choosing a title for his film when there's already a film with the same title out there.
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
So, here's John's question (I've removed the actual title he's referring to,)
I am starting to work on a script inspired by actual events.
I have chosen to give it a title I really think conveys everything it should about the script.
Recently, I noticed that there was a 2016 short with the same title.
Can I proceed with this as my title?
The 2016 version is fictional, and mine is based on actual events in my life pertaining to a legal issue.
Well, John, I think since you're in the early stages of things, and you're just starting to write a script, my advice has to be that you choose another title for your script. And really, right now, almost any title (even “Untitled”) will work. Once you've written the whole story, the right title may just come to you.
My point is, you shouldn't let this title issue be an excuse or reason NOT to write. Get your script onto the page…
Movie titles change along the way through development, and sometimes even in production or post-production. So don't get hung up on the title now.
But as for the legal aspects of your question, here's what I can tell you.
Generally, we're talking about the law of trademarks and unfair competition, which basically protect against confusion in the marketplace. Trademarks are used to distinguish the source, or origin of goods and services. So when you're out there buying things, you don't confuse one brand of cola from the other, or whatever.
But trademark law doesn't really protect a single title of a creative work… Like a script, film, book, poem or song. So you can't get a registration for a script title. But there are other kinds of legal claims that don't require a registration.
Ultimately, with titles for films, plays, etc., it's technically possible to use an already existing title on a new work… But I'd say that if the other film is fairly recent, you will probably encounter some pushback… Maybe a cease-and-desist letter, and possibly even a lawsuit.
So, you're talking about a film from about 2 years ago. That's pretty recent, so I'd say don't do it…
But what if you'd found some little known from 50 or 60 years ago?
That's a slightly different case, since the question of “likelihood of confusion” is at the core of this. And if you go and look, you WILL find common titles on unrelated films. There's less chance consumers (movie viewers) will be confused about which film they're watching.
But, even then, I think it's really not a good idea to put a product or service out into the world with a name that's confusingly similar to another one. That's bad for business, on both sides of the equation. Consumers get confused, word spreads, and your film can suffer.
And here's one more important point. When you go to distribute a film, the distributor will ask you to provide a Title Report and an Opinion Letter from a lawyer. This basically means that you're going to have a firm run a search and report on other, competing titles in media, online, books, and what-have-you. Then the lawyer is going to write a legal opinion based on that report, and advise you (and the distributor) about whether it's safe to use the title, or whether there's a risk of lawsuits.
So, to bottom line it here… don't use an existing film's title for your new screenplay or film.
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