Question and Answer # 8: Can You Copyright a Title?

by John Aquino on 07/29/13

Question: I have been reading that Warner Bros. is suing The Weinstein Company to block its use of the title "The Butler" for an upcoming movie. I thought you couldn't copyright a title.

I've been reading about that too, variously that the suit is about copyright law or trademark law.

Attorneys who work in intelllectual property law often complain that the media and even attorneys who work in other areas of the law toss around IP terms recklessly. I was just reading how IP attorneys claim members of their own law firms will routinely ask, "Should I copyright this name?" or "Should I trademark this book."

U.S. law provides copyright protection for works of authorship. A title running from one to five words has generally not been seen as qualifying as a work of authorship. It is possible to have trademark protection for the title of a movie or tv shows, such as "Star Trek" and "Star Wars."  But the "mark" must cotinue to be used in commerce. I've seen news stories that Warners was asserting either trademark protection or copyright ownership based on a 1916 comedy titled "The Butler" to which it owns the rights. This suggests the title has not been used in commerce for 97 years. It could also be argued that "The Butler" is a generic and not a descriptive term and so could not merit trademark protection, just as a magazine publisher would have difficulty in registering a trademark for a magazine called "Movies" but maybe could for a title the publisher actually invented such as "MoviesDazzle."

I think editors have been bandying the terms "copyright" and "trademark" around in regard to "The Butler" in order to cover something that is a little more difficult to describe easily in a headline.

This is not a legal issue but a self-regulatory issue. In order to guard against two movie companies simultaneously coming up with the same title and also because copyright and trademark law may not easily protect a title, the U.S. movie industry self-regulates this aspect of the business and has created a Titles Registration Bureau as part of the Motion Picture Association of America. Membership in this registration is voluntary, but, once a member, the movie company agrees to follow the registration rules, which includes registering the title so many months in advance of release so as to give notification to a movie company that may have a competing title, and to agree to MPAA arbitration in case of dispute. The Weinstein Company and Warners agreed to be part of the registration process, and Warners claimed The Weinstein Company did not register the title "The Butler" in accordance with the rules.

On July 2, 2013, arbitrators agreed with Warners, Weinstein appealed the deecision, the MPAA appeal was rejected on July 22, and The Weinstein Company was fined $400,000 for not abiding by the July 2 arbitration ruling and was also required to pay for Warners' legal fees. The MPAA allowed the Weinstein Company to distribute the film as "Lee Daniels' The Butler," using the director's name in the title. The Weinstein Company issued a press release that it was glad the dispute was over.

There are stories about Hollywood's "golden age" and title disputes. One of the oddest film titles came about because of a worry that Warners would be sued over a title. Warners had bought the right to Maxwell Anderson's 1930 play "Elizabeth the Queen." It was filmed in 1939 starring Bette Davis as Queen Elizabeth and Errol Flynn as the Earl of Essex. The initial plan was to release the movie with the name of the play. But Flynn reportedly objected to being seen as a supporting player in the movie because of the title. He insisted that the title cover his character too. The logical thing to do was to call the movie "Elizabeth and Essex." But the biographer Lytton Strachey had written a book called "Elizabeth and Essex: A Tragic History" in 1928. Strachey had died in 1932, but Warners was convinced that it would be sued by his publisher for copyright infringement (!).

As mentioned, the publisher would not have been able to claim copyright protection for a title. The publisher might have been able invoke trademark law to argue "likelihood of confusion"--with people assuming that the movie was based on Strachey's book--and thus affecting the marketability of its "mark." But a mark named after two historical characters would apear to be generic in that Strachey didn't invent the mark, and to give him and his publisher control over the use of the names of two historical characters would arguably close off anyone else writing about them. 

But, fearing litigation, Warners created one of the strangest titles in movie history: "The Private Lives of Elizabeth and Essex," a title that was completely Warners own, and they could have it. 

 Copyright 2013 by John T. Aquino. This article is not intended as legal advice and is instead meant only for educational purposes.