Protecting Titles - Part I

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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.