Copyright laws surrounding movie and song titles: What would stop me from...

I was reading this news article on Will Ferrell’s next project, a movie entitled “Stranger Than Fiction.”

That title keyed a memory in my mental Rolodex, so I stopped by IMDB to find out if a movie had been made with that title previously.

Turns out there were no less than six films with that very title.

So here’s my question – what, if any, are the repercussions of titling your film (or song, for that matter) the same as a previously-released work? I’m talking actual legal repercussions – marketplace confusion aside.

Could I create a film about deforestation in the area south of Houston and legally call it “The Texas Chainsaw Massacre?”

Titles are not copyrightable, in any medium. There are thousands of examples of repeated titles in movies, books, songs, photography, and every other possible artform.

There is a big but, however. Marketplace confusion cannot simply be set aside. Under the Lanham Act, deliberate consumer confusion may be prosecutable.

This gets into a fairly specialized area of intellectual property law so I won’t go any further than to say that you are far safer to base an identical title on a common public reference (like a quote from Shakespeare) than on a specific work with well-known and trademarked characters.

See, that seems so bizarre. In the day and age where Pat Riley can register “three-peat” and Donald Trump can register “You’re Fired” as trademarks, it seems to me that titles are just as much the intellectual property of the prior owner.

And, if that’s the case, what about the Austin Powers: Goldmember flap from a couple years back? If what you say is true, wouldn’t that also fall under the banner of “fair use”? I seem to remember New Line having to compensate the Bond people quite a bit of lucre over that, and move the release date of AP3 to another date over it.

My understanding of that situation, based on mostly hearsay I must forewarn you, was that New Line was all ready to roll things out, they’d advertised the release date, etc. - and MGM/UA sued.

Now, from a layman’s copyright standpoint, not only did the AP production title enjoy the protection of the non-copyrightable title effect, it was also clearly an act of parody. Clear-cut fair use, right?

Well, I think so. But see, resolving it in a trial takes time. Time New Line didn’t have, because MGM/UA deliberately waited until the last minute. So what was New Line to do? Delay the release date after all the hooplah?

They decided to show the Die Another Day trailer for MGM/UA, attached to AP3, and agreed to solicit MGM/UA’s approval before parodying a Bond title again.

Granted, this is based on hearsay and speculation. If it’s true, then it represents the worst sort of abuse oof our legal system.

Oh, foo. I went back and reviewed my source of hearsay, and it appears it was a strictly legal battle after all.

The arbiter in the dispute was not the American Justice System, but the MPAA.


Personally, I think the title The Texas Chainsaw Masacre would be an excellent title for a documentary about deforestation. Very Michael Moore-ish (from his Roger & Me days).

As was widely discussed here and in the media, Donald Trump’s statements about owning the phrase “You’re fired” were, shall we say “overstated”. There were other businesses using it as a trademarked name or slogan well before he even dreamed of it. At best, he has a limited trademark covering its use in regard to T-shirts and other merchandise with a distinct tie to his show. That’s pretty common.

I think Trump is an admirable man in many way, but a penchant for overstatement -even deliberate overstatement- is a hallmark of his career. If his claim makes him seem to possess a more desirable property or dissuades competing merchandisers; if his (presented) belief in the scope of his trademark gives a little more oomph to any lawyer letters that go out to others using the phrase (would you want to face Trump’s lawyers, on a matter where he believed, rightly or wrongly, that he was in the right?) – well, I suspect he’d consider it a savvy move.

Not that he was necessarily deceptive. It could well have been an honest overstatement.

Whenever it comes to intellectual property lawsuits, this confusion between trademark law and copyright appears.

Slogans are not titles. They can be trademarked. The trademark applies only to the commercial exploitation of that slogan within a specific context, however. “You’re fired” was already a trademark of a ceramics store in the Midwest. I doubt that if it had gone to trial the owner of the store would have a case against Trump’s obviously different use in a different context. As it happens, I don’t think he ever did get the trademark, but that’s a different issue.

The Bond movies provide an extremely complicated IP nightmare. Characters themselves can be copyrighted but also trademarked.The Bond titles would probably be protected under the Lanham Act from commercial confusion, just as Bond himself and certain images from the movies could be prohibited from posters and publicity. Trademark law does not recognize fair use. And trademark must be positively defended in every case of possible transgression.

The parody defense would probably prevail in this context, but there are two things to note. First, as CandidGamera says, time is money and any lawsuit would be disruptive. Second, crying “parody” is not an automatic defense. The conditions under which parody is defensible have been specifically covered in case law.

My opinions on MGM/UA was right or wrong are legally meaningless so I won’t offer them. Moriarty’s idiot notions of copyright law are even more meaningless if those links are an example. The case was not simple or clear-cut at all. IP law is a swamp in which even the courts no longer agree on anything.

The Master speaks on titles and trademarks.

At best, Donald Trump could trademark “You’re Fired” in a distinctive context/logo/style/typeface/color. That would do him no good, however, against someone else who wanted to use “You’re Fired” in a different context/logo/style/typeface/color.

A similar ruckus was raised last month over Fahrenheit 9/11 vs. Fahrenheit 451. Mr. Bradbury’s protests to the contrary, he didn’t have a legal leg to stand on.