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Q: I
have been told by a friend in the industry that the name I chose for
my screenplay is a very good one indeed. Is it possible to copyright/protect
a film's name? Mine is only one word, and although not a commonly used
word, it is in the English dictionary nonetheless, but I'd be most upset
if someone else's script had the same title. Is there anything I can
do? —Paul
S.
 A: Many
people are surprised to find out that it is not possible to copyright
titles under US copyright law. It is also not possible to copyright single
words or short phrases no matter how unique or original. The reasoning
behind the policy of not granting copyright protection to titles has
been described in certain legal decisions as a necessary requirement
to allow for the growth and evolution of the English language. On further
reflection it is easy to see how prohibiting the general public from
using certain words or phrases (including titles) would be socially undesirable.
Outside of copyright law it is possible under certain instances to protect
a title under US trademark law. Two preliminary and non-exclusive requirements
for trademark protection would be that the title has been a) published
and is b) commercially used to distinguish a certain good or service.
Another possible method of legally protecting a title could arise under
the legal doctrine of Unfair Competition. To establish that Unfair Competition
has occurred an author would have to prove that another author was trying
to "Pass Off" his or her work as the work of the original author. To
be successful under this claim, among other things, the original author’s
title would have to a) be published and b) have acquired a secondary
meaning in the eyes of the public (meaning that the title of the work
and the author have become inextricably associated with one another).
For the typical author, the best approach to protecting an original title
may be trying to keep the title as confidential as possible until the
work has been published.
Q: I
have decided to write under a pseudonym and was wondering about the logistics.
I'm currently working with a management company who knows me only by my
pen name. If they are able to sell my screenplay, would I need to inform
them of my legal name for payment, for example? It seems that many people
in the entertainment industry use screen names or pen names. Do most legally
change their name? It seems complicated to operate professionally with
a name different from the one associated with your Social Security number. —Barry
W.
A: Many
authors and entertainers in the entertainment choose to work under an
assumed name. If you are interested permanently changing your name and
giving up your existing identity in its entirety, legally changing your
name may be a appropriate decision. However, if you are only interested
in using an assumed name when writing or working in the entertainment
industry, it may be best to ask the publisher or employer how they operationalize
this procedure with others. The policies and procedures for working and
receiving payment under an assumed name will vary from employer to employer
and for both parties to be happy with the arrangement it’s important
to be flexible.
Q: I'm
from Mexico and writing a screenplay for Hollywood (in English, of course)
and I would like to know how to legally protect my work from here before
showing it to anyone in the script business. Thank you very much for your
help. —Carlos M.
A: International
copyright law can be confusing and at times unclear. If you are interested
in protecting your copyright in Mexico it would be best to consult with
a local attorney that specializes in copyright law. According to the
US Copyright Office:
"Any
work that is protected by U.S. copyright law can be registered. This
includes many works of foreign origin. All works that are unpublished,
regardless of the nationality of the author, are protected in the United
States. Works that are first published in the United States or in a country
with which we have a copyright treaty or that are created by a citizen
or domiciliary of a country with which we have a copyright treaty are
also protected and may therefore be registered with the U.S. Copyright
Office."
For
a listing of countries that maintain copyright treaties with the United
States, please visit http://www.loc.gov/copyright/circs/circ38a.pdf.
Mark Litwak is a veteran entertainment attorney and Producer’s Rep
based in Beverly Hills, California. He is the author of six books including:
Reel Power: The Struggle for Influence and Success in the New Hollywood,
Dealmaking in the Film and Television Industry, Contracts for the Film and
Television Industry, and the recently published Risky Business: Financing
and Distributing Independent Film. He is the author of the CD-ROM program
Movie Magic Contracts, and the creator of the Entertainment Law Resources
website at www.marklitwak.com. He can be reached at law@marklitwak.com.
Disclaimer-Any
material sent to or provided by Mark Litwak is for illustrative and educational
purposes only and should not be relied upon as legal advice, or be considered
confidential or the basis of an attorney client relationship. This
material may not be suitable for your particular situation and different
legal advice may be appropriate depending on your jurisdiction or circumstances.
Therefore, you should not rely on this material, or any part of it, without
the advice of competent legal counsel.
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