Entertainment Lawyer Question and Answer Forum:

Welcome to this week's Entertainment Lawyer Q&A, published by The Film & Television Law Quarterly and the entertainment law firm of BLAKE & WANG P.A. Each week an entertainment lawyer will respond to reader questions and publish the best discussions.

Have a question for an entertainment lawyer? Post it on our website at blakewang.com and get the answers you need.

Question:

I'm writing/producing a scripted pilot for the web or TV in which the lead character was a performer on a popular TV reality competition show. Can I use the name of the real show or do I have to make up a fictitious name? Also, can I use the real names of her co-stars in conversation?

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for your question. I represent a lot of producers and writers and there is generally a lot of confusion out there regarding the rights to use titles and the names of celebrities. The law surrounding these questions is somewhat contradictory, so I will go through and respond to these two different issues from a number of different points of view.

I will start this week be discussing the titles to movies and television shows and then discuss the use of celebrity names and references in our next newsletter.

First, it is important to know that copyright does not protect the titles themselves of television series or feature films. Copyright only protects creative content and the titles are not considered to be part of the work of authorship.

This then often leads to the question of why is it that one of the standard deliverables for feature films is called a “title search”? In this case “title” is actually referring to the chain of ownership to the work, much like a car or house has a “title”, meaning a record of ownership. To further confuse things, a title search often does involve searching the titles of copyrightable works but that is done to find other works that might have been infringed.

You will find many copyrighted works, including film and television shows, that all share the same titles although the use of similar or confusing titles, or the reference to titles of other works, is not completely unrestricted.

Producers can go about protecting the titles of entertainment works in two principal ways, first is trademark and second is MPAA registration.

Trademark can be used by both film and television producers to protect the title of a production, although trademark does not specifically protect the title of a creative work either. A trademark is supposed to be what is called a “source identifier.” Trademarks and servicemarks are for the purpose of identifying the maker of some product or service, and thereby keeping consumers from being confused about who created the goods. Coke, Pepsi and Apple are all easy examples of the typical functioning of trademarks. Each of these “marks” identifies a particular maker of drinks or computers.

So when it comes to using trademark to protect the film or television production’s title, some creativity is often required in coming up with a mark that is valid and can protect the title of the work.

Common law or state trademark law is also available in many jurisdictions and it is possible that even if the mark was not filed with the federal trademark office, that there could still be protection for a film or television title at the state law level.

Many producers do not know that for feature films another method of protecting titles exists, which is MPAA registration. MPAA registration can protect a title even without a trademark filing, and is the purpose of reserving titles for theatrical feature films. There are some costs involved but many feature film clients retain us to obtain MPAA protection for planned feature film projects. It is good to start early with this process since names are simply assigned on a first-come first-serve basis.

So depending on what steps the reality show took to protect the title, it might end up being more convenient to change the name. If the use of the real name is important then you might want to consider a trademark search to determine availability.

In the next newsletter I will explore the use of names of individuals and celebrities and some ways to protect and research those uses.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

About the Editor:

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online.

About the Entertainment Lawyer Q&A: The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

Entertainment Lawyer Question and Answer Forum:

Question: Part II

Answer by Brandon Blake, Entertainment Lawyer:

Last month we discussed the use of titles to movies and television shows and how those titles can be protected. This month I will deal with the use of celebrity names and references in film and television projects.

There are a number of different places where the protection for real names and identities comes from, which are generally based on state statutes or on state common law. The principal areas of law that are involved include defamation, false light, the right of privacy, and the right of publicity. I will assume that trademark is not involved, but if the celebrity has an active trademark in his or her name then you may also want to consider trademark rights, which we discussed in the last newsletter.

Defamation is the oldest and most uniform body of law that addresses the use of a celebrity’s real name, or identifies that celebrity in some other way. Defamation involves saying or publishing false accusations about another person. In order for defamation to apply, the accusations must generally be knowingly false and you need to identify that person. The celebrity’s name need not be used. Anything that would identify the celebrity to other people who know the celebrity would be sufficient.

This could certainly be an issue with a reality show, because part of the drama is the stating of critical statements about other cast members, which may or may not be true. So anytime the statements might be offensive or antagonistic, you want to be careful about defamation. Although there are certain constitutional protections for statements about “public figures”, that protection usually applies to political figures or super stars, and there are a lot more common defamation claims in state court than most producers realize.

False light is similar to defamation, except that the statements about the celebrity do not have to be false. They simply have to put the celebrity in a “false light”, meaning altering the context of the quotes. Even something positive, like glorifying some heroic act could be false light if the depiction of the celebrity is blown out of proportion and is not an accurate statement, even if not completely false.

The right of privacy is still a big gray area in the law, and elements of privacy law can be found in state common law, statues, federal law, and even in constitutional law. It is too broad an area to address fully here, but there are a number of laws and statutes that prohibit publicizing facts that would be considered “private” about another individual. Although reality TV stars seem to avoid any concept of privacy in their careers, it is still a potential source of liability if a producer were to publicize something that could be deemed private about a celebrity’s life.

Finally, the most important protection that a celebrity has in his or her name and likeness is the right of publicity. Celebrities, unlike average citizens, have a commercial right in their persona, which is protected in all states. That is why a celebrity must be paid to make a television commercial or for an endorsement.

The reason that most celebrity references in film and television projects must be cleared with the celebrity or his or her agent is because of the commercial right of publicity. Most references found in television shows or movies really are some type of a covert endorsement. If a producer doubts that fact, then think about whether the value of the show increases or decreases if the celebrity name is replaced by a fictional name. In most cases, producers really are trading on the value of celebrity names by referencing them in projects.

Finally, if the celebrity becomes a large part of the script, such as a supporting character in the project, then that is actually a situation where the celebrity’s life rights should be obtained.

Entertainment Lawyer Question and Answer Forum

Thursday, January 8, 2015

Protecting Titles - Part I

Entertainment Lawyer Question and Answer Forum:

Question:

Answer by Brandon Blake, Entertainment Lawyer:

Protecting Film and Television Titles - Part II

Entertainment Lawyer Question and Answer Forum:

Question: Part II

Answer by Brandon Blake, Entertainment Lawyer: