Protecting the title of a film, television show, book, or other production is a legal issue unique to the entertainment industry. It is true that copyright law does not protect titles, but protection is found under the principles of unfair competition and trademark law. Gerdes Law principal Ted Gerdes has cleared more than a thousand titles for producers, publishers, networks, and E&O Insurance carriers, has become a preferred vendor of a major cable network group and several E&O Insurance carriers. He is on a limited referral list of a prominent title research company. Once properly cleared, Ted can provide advise as to whether a title can or should be registered as a trademark and can assist in the registration process.
Title Clearance Often Required
Today, distributors and E&O insurance providers typically require producers to provide both a title trademark search report as well as a legal opinion. However, many producers are unaware of this requirement and proceed with production, only to find out later that they cannot distribute a project without first clearing the title. This can lead to last-minute scrambling for clearance, a delay in release or broadcast, or even a costly title change.
To satisfy the demands of insurers and distributors, it is critical to have a title opinion written by an attorney experienced in this type of analysis. Ted obtains Title Availability Search Reports from several reputable companies that specialize in this complex research. As miraculous as a Google or Bing search can be, it is no substitute for a search preformed by an experienced company with access to the proprietary data bases necessary to find even the most obscure use of a word or phrase as a title. There are several types of searches that can be prepared: a screening search, a traditional title search, and a more thorough entertainment category search. Ted can also help you determine what search is appropriate or required for your project.
Once the title research report has been obtained, Ted Gerdes reviews and analyzes the report to determine whether the title is available for your use in connection with your production and issues a written opinion that can be presented to an E&O Insurance carrier, network or distributor. Depending upon the depth of the report supplied, he can also determine whether the title is available for ancillary uses, such as, books, computer games and even merchandise.
Ownership interest in a title, at least in the United States, is acquired and perfected by actual use. This is one reason some titles are not registered, as trademarks. Other reasons may include economics or that a title is one time use. Registration of tittles as trademarks with the United States Patent and Trademark Office requires that the work designated by the title is not a single film, television show, or book. If it is being used on a television series, book series or other continuing work, registration is possible and recommended. Depending upon the success of a particular project, registration of the title may also include ancillary works like toys, games, posters, novelizations, computer games, clothing items, bed sheets and other merchandise. A quick search of the United States Trademark Office web site reveals nearly 50 trademark registrations for "Star Wars." For more information on the registration process, see the Trademark pages and articles posted elsewhere on the Gerdes Law site.
MPAA Title Registration Bureau
In 1925, The Motion Picture Association of America (MPAA) instituted its own Title Registration Bureau. The major studios and their subsidiaries register forthcoming titles, and independent distributors can opt in to the program. Members of the bureau agree not to use a title that is confusingly similar to another title, and agree to handle any disputes that arise through arbitration. The MPAA bureau only covers its members; independent producers that have not joined the program, as well as television titles, are not covered. It is important to note that this system is enforced via contractual rights. Companies that are not signatory to the agreement cannot be bound to its terms. In addition, even if a particular studio registers a title within the MPAA system that doesn't mean that the title is clear to use by the registrant. The producer would still need to have a title search and opinion prepared to ensure that someone outside this closed system isn't already legally using the title.
Ted Gerdes understands that when you embark on a new creative project, you want to worry as little as possible. His goal is to provide preventative legal representation that allows you to continue with the creative process without having to worry about having to defend a claim later. Once you find a title that is clear for your use, Ted can also assist you with registering and protecting it for the future. To learn more about how he can assist you, contact Gerdes Law to schedule a consultation.