PRODUCTION TIPS: Avoid Using a Movie Title Already In Use (Lessons Learned from The Butler ruling)

So the verdict came in and a MPAA title registration bureau arbitration ruled Tuesday that The Weinstein Co. could not use the title The Butler on its upcoming film, due to be released Aug. 16, because that previously served as the title of a 1916 short film that now belongs to the Warner Bros. library.  High-powered attorney, David Boies, fresh off his Supreme Court win, issued the following statement, "The suggestion that there is a danger of confusion between The Weinstein Co.’s 2013 feature movie and a 1917 [sic] short that has not been shown in theaters, television, DVDs, or in any other way for almost a century makes no sense. The award has no purpose except to restrict competition and is contrary to public policy."  Basically, the MPAA title registration bureau decided that the market at large (meaning you and I) would confuse 2013's The Butler, a feature film about an African-American butler serving at the White House for 34 years, with 1916's The Butler, a short film about I-don't-know-what-seen-by-I-don't-know-who.  The ruling stands and now The Weinstein Company and Warner Bros. will appeal in arbitration and possibly even sue. It's expected that The Weinstein Company will retain the title but they will have to fork something over for it.

So what does this mean for filmmakers?
If you seek domestic distribution for your film, be wary of using a title that is in the library of one of the 6 major studios represented by the MPAA (Walt Disney Studios Motion Pictures; Paramount Pictures Corporation; Sony Pictures Entertainment Inc.; Twentieth Century Fox Film Corporation; Universal City Studios LLC; and Warner Bros. Entertainment Inc.)  If it's in use, YOU ARE BETTER OFF CLEARING THE TITLE than trusting on the good whims of the similar title owner. Even deep pockets like The Weinstein Company can feel the pinch of having to go through all the legal and business hurdles to address the title issue but, at least, they will weather the storm (and maybe this publicity will even increase ticket sales ~~ brand awareness and sympathy buzz). BUT the indie filmmaker and indie production company probably can not afford to be tied up trying to arbitrate and negotiate or worse having to redo their whole marketing campaign, merchandising and one-sheets ~~ they both cost tons of money.

Current precedent at the MPAA title registration bureau suggests that they will protect titles even if they are of obscure works in the studio's library.  Ideally, the writer should have registered the script and and copywritten it first before it even goes to production.  Note, however, that there is no copyrighting a movie title.  And only in a few circumstances can you register a trademark for a movie title.  So to properly clear a movie title you must go through the Search and Clear process.

The Search and Clear process

1. Search online and major movie listing sites for movie titles exactly like yours.
2. Search the US trademark registry for movie titles like yours.
3. Search the trademark registries in territories you plan on distributing your movie in for movie titles like yours.
4. Contact the MPAA to query about any upcoming movie title in their registry that could be exactly like yours.
5. If there is no title like yours then you're good. If there are, then either CHANGE THE TITLE or CONTACT THE ORIGINAL OWNER OF THE PRIOR MOVIE AND NEGOTIATE TO USE THE SAME TITLE.  In that case, all negotiations must lead to an agreement known as a TITLE CLEARANCE or a clearance to obtain title.  And you MUST put that in your chain of title.

The further you go in the Search and Clear process I have outlined above the more it will cost you in time and money.  Nevertheless, it's up to the producers and the production company to do their due diligence and ensure that the title is good to release without worries.  Generic titles like The Warrior, The Dark or The Butler risk being subject to a company or studio exercising their title ownership.

What if you want to register your movie title? According to the MPAA's FAQ:

"As filmmakers prepare to make their movie, they typically take action to secure the unique nature of the title of their film. Enter the MPAA's Title Registration Bureau. The Bureau is a voluntary central registration entity for titles of movies intended for U.S. theatrical distribution, and it is intended to prevent public confusion over films with similar titles.

In order to register titles, filmmakers must subscribe to the Bureau's registry. There are currently almost 400 subscribers, including all of the major motion picture studios. Subscribers are bound by the Bureau's rules, which prescribe procedures for registering titles and handling any related disputes."

The fact that different movies with the same titles seem to co-exist peacefully shows that disputes like the recent Weinstein one with The Butler are rare.  It might even hint at some kind of internal power play going on behind the scenes (Is Warner Bros. acting in retribution or wanting something?) Nevertheless, rules are rules.  So it's better to be safe than sorry.  Take risks with your creativity, story, acting, editing, cinematography, and sound but be cautious with the business end of it. Indie filmmakers can at least go throught steps 1-3 of the The Search and Clear process above without investing large sums of money and time on it. So why not?

UPDATE: Read this short and clear list of bulletpoints regarding movie and television titles by Paul D. Supnik, Esq.