It seems like I have had a lot of conversations with people lately about movie and book titles. No, not in the form of trivia questions; I mean conversations about how so many movie titles just seem to sound the same. Or a related topic: how can a movie studio come up with a title for their movie when there are already so many other movie titles out there? In a universe with a finite list of words and phrases, how does a “Title”ist (fancy moniker for somebody who writes film titles, according to me) expand their wings?

Here is just a short list of titles that overlap:
28 days vs. 28 Days Later
Monsters Inc. v. Monsters Ball
Aristocats vs. Aristocrats
Black Sheep vs. Black Sheep

But wait a second: aren’t names and such (anything that is a creative work) protected by copyright? Nope, not really short phrases, of which titles, be it a book or movie title, falls victim. Names and short phrases such as “Live, love laugh” just don’t exhibit enough creativity to be protected in the same way that a full-length book or movie is. Or at least that’s what the Copyright Office has specifically declared in its decree that all words embody a “minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression.”

When the copyright office says authorship, what they really mean is that some kind of independent effort went into making the work. And independent effort simply means that there was no literal copying of an earlier work. Besides simply being original, a work has to be creative, which means that the author of it had to exert some kind of mental effort (even if ever so slight) to give life to her work.

This obviously requires some kind of evaluation by the copyright office in assessing whether the work at issue fulfills this requirement. Given this standard, one might say that even short phrases can embody creativity, perhaps because the author of the phrase, in a clever moment of putting pen to paper, penned something really incredible, out of his own mind. Alas, the copyright office and many courts, enough to fill Don Quixote have held that short phrases don’t rise to the requisite level of creativity. Even if they did, could you imagine the results? Common words or phrases (like Just Go With It) would be stricken from the lexicon for a century, save for the payment of royalties to “author” of this phrase.

So, with copyright off the table, we turn to trademark law the quintessential protector of commercially significant symbols. The great refuge from diluters and squatters! But trademark cannot help here, either, at least for titles of single creative works by order of the U.S. Trademark Office and many courts because the title of a work designates a particular work but not the source. The prevailing rationale is that protecting movie and book titles would be wrong because the titles are, to an extent, descriptive of the underlying product. But what happens if a particular title (i.e. A Tale of Two Cities for the great novel, or Gone With the Wind for the American classic film) becomes famous, so much so that it acquires the holy grail of descriptive trademarks, secondary meaning? Well, the thing with trademarks is that protection can last forever, unlike copyright where protection is finite, lasting only for as long as the author’s life plus 70 years in most cases. So giving trademark protection to a title, which may apply to a work that has moved into the public domain (as copyrighted works do, after their term of protection expires), is a wee bit problematic. As courts have held, once a work falls into the public domain, the public generally has a right to refer to that work by its original title. Looked at in this way, both the work itself and the title pass into the public domain.

At this point you might be wondering about series titles (i.e. Harry Potter and Lord of the Rings). Surely a series of books, by virtue of their use of a common title or series of words, create some kind of tie-in between a work and the source, such that authors of these works (or their publishers) acquire trademark rights to the title? Well, yes, they can, so long as the name of the series can identify the source of the goods.

Even if a title is not registered as a trademark, it can still be protected through unfair competition laws under individual states and select provisions of the Federal trademark act. In a claim for unfair competition, the producer of a work with a title asserts that the title is so well-known amongst the public that it serves to identify the source of the work (for example, Huckleberry Finn would almost certainly point to a Mark Twain). The law of unfair competition is comprised of torts that cause an economic injury to a business through a deceptive or wrongful business practice.

An example of where unfair competition law was used to enforce a title against an infringer was a case involving Warner Brothers’ The Hobbit: An Unexpected Journey. The owner of various trademarks from J.R.R. Tolkien books such as THE HOBBIT brought suit against the “mockbuster” film Age of Hobbits, a film about a supposedly “recently discovered species of pre-historic humans that lived in Indonesia”. Warner Brothers sought an temporary restraining order to stall the release of Age of Hobbits, arguing that the film unfairly utilized goodwill associated with the HOBBIT title, a form of unfair competition that would result in economic harm to the HOBBIT franchise of movies (which now has second movie in production, if memory serves). Here, what won the court over was the fact that Age of Hobbits included the HOBBIT title verbatim, the goods involved (motion picture films) were identical between Warner Brothers’ and the producer of Age of Hobbits, and both film producers used similar marketing channels (namely, the internet).

Age of Hobbits biggest downfall here? Well, there are several. First, the producer chose to emulate a movie that had an extremely wide following by virtue of nearly a century of widespread exposure to the public. That is, choosing to use the term “HOBBIT”, a word that is almost certainly distinctive given the fact that it is made-up and used in several works by a famed author, opened Age of Hobbits to a claim for unfair competition, even though Warner Brothers’ title, Hobbit: An Unexpected Journey was not (and could not be) protected as a trademark. The second major downfall is that Age of Hobbits did not use “HOBBIT” in an artful enough way so as to bring its use of the word under the First Amendment. “Mockbuster”, “mockumentaries”, parodies, and even legitimate works of art can use a title or trademark of another where the use of the title or trademark has some kind of artistic meaning and use of the title is not misleading to the public (i.e. it wouldn’t cause the viewing audience to think that the film was made by the owner of the title or trademark. In Age of Hobbits, the producer just turn the “mock” up enough to rise to the level of a parody. Otherwise, he might have had a prayer.

 


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