Ever wondered how two movies can share the same title? Or maybe why more movies don’t have the same title? The answer to both of these questions lies in what you can and can’t protect under copyright and trademark law, and the movie industry’s solution to this issue. Typically, copyright and trademark law do not protect movie titles. Copyrights are intended to incentivize creativity (and the effort it takes to be creative) by protecting original expression. In order to qualify for copyright protection, a work must have some amount of “authorship” and be “fixed in a tangible medium” (for example, in writing or saved on a hard drive). The U.S. Copyright Office does not offer copyright protection for movie titles because, in its view, movie titles lack the “minimum amount of authorship” required for protection (despite the effort many put into finding the perfect title). This same principle applies to names and other short phrases.

With copyright protection out of the question, what about trademarks? Trademarks are intended to identify and distinguish the source of a good as coming from a particular company. Most importantly, in order to qualify for trademark protection, a mark must be distinctive—that is it typically can’t be merely descriptive or generic. Because most movie titles simply describe movies rather than help identify their source (for example, the producing studio), they typically do not qualify for trademark protection. However, when a movie is part of a series, a portion of its title may qualify. For example, there’s “Kung Fu Panda,” “Kung Fu Panda 2,” and “Kung Fu Panda 3.” In this case, “Kung Fu Panda” qualifies for trademark protection even though it basically just describes what the movie is about—a panda bear that wants to learn kung fu. Still, this is the exception rather than the rule when it comes to trademarking movie titles.

So if copyright and trademark law do not reliably protect movie titles, why aren’t there more movies with the same title? In order to address this issue, the MPAA instituted a title registration bureau in 1925. Its members, including all of the major motion picture studios, can register movie titles with the registration bureau. All members agree not to use titles that are already registered without permission, and any disputes are resolved in private proceedings. This gives the industry some ability to regulate the reuse of movie titles where copyright and trademark laws fall short. But just because the MPAA can regulate title reuse among its members does not mean it can force an independent filmmaker to change a movie title.

When it comes to naming your movie, its important to understand the issues and seek good advice. Even independent filmmakers should search for similar titles to make sure that they aren’t protected and ask permission from prior title holders to avoid the headache of any complaints, legitimate or not.

For more information on this topic, please visit our Trademark Management service page, which is part of our Trademarks practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the trademark firm and its trademark attorneys may be found at www.klemchuk.com.

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