Q: I made a short film in 1983 and now a feature film is being made with the same title.
The storylines are not the same but nobody checked with me about using my title. What options do I have? To whom would I file a complaint? Would it be with the studio making the film? The director? Or the screenwriter? Do I even have a case for suit?
A title can make a major difference in the success or failure of motion picture, and it certainly makes sense that you would attempt to seek legal protection for your movie title. Surprisingly, such protection can often be difficult to obtain, as movie titles cannot be copyrighted. Thus, a film owner must look to trademark law as the source of legal protection for his or her movie title, but obtaining such protection is not automatic.
In general, a person can seek to register a trademark with the Patent and Trademark Office (“PTO”). Once a registration is obtained from the PTO, the trademark is presumed to be valid and the registrant is presumed to be the exclusive owner of the trademark. But the PTO will not register a single movie title as a trademark. To obtain a registration from the PTO, there must be at least one sequel for the movie to qualify as a series. In your case, you cannot obtain a registration from the PTO for your movie title since you’ve only made a single short film.
Courts have not been as rigid in their treatment of legal protection for movie titles. Courts have said that a movie title can qualify for trademark protection if the owner can prove that the title has obtained “secondary meaning.” To prove that a movie title has secondary meaning, an owner would need to show that, in the minds of the public, the movie title has become associated with a single source. In your case, this would mean that you would have to prove that the public associates the title of your movie with you. If your movie was a short film in 1983 that was not a major success, this would be nearly impossible to prove. Thus, the bad news is that it is highly unlikely that you have a case for a lawsuit. MM
Jeremiah Reynolds is an associate at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in complex business litigation, particularly upon entertainment related litigation and contractual disputes. Reynolds’ experience includes disputes relating to motion picture and television distribution rights, merchandising and licensing rights, profit participation and other accounting issues, contractual disputes and intellectual property disputes. In 2006 and 2007, Reynolds was named a “2006 and 2007 Southern California Rising Star” by the publishers of Los Angeles Magazine. He is a cum laude graduate of the University of California, Los Angeles (B.A., 1997) and received his J.D. from the University of Southern California in 2002.
The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP (“KWIKA”) are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.
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