Can I Protect My Film Title With a Trade Mark?
A title can say a lot about a film. It can reference a major theme or critical moment in the film and centre the audience’s focus on the main character. For this reason, some filmmakers seek to protect their film’s title under trade mark law to distinguish their film from others in the film industry. However, trade marks can only protect film titles under certain circumstances. This article provides some examples where a registered trade mark can be used to protect a film title.
Trade Mark Protection
Under copyright law, owners of registered trade marks have certain rights. These include the exclusive rights to use, licence and sell their mark. This means that when someone copies or misuses a registered trade mark (known as copyright infringement) the respective trade mark owner can enforce their rights against the infringer. For this reason, trade mark registration provides an ideal way for people to protect their intellectual property (IP).
However, common law does not generally protect films. This is on the basis that most movie titles do not indicate the commercial origins of a film or details about the film production. Instead, we generally use film titles to identify or refer to a film itself. In contrast, trade mark owners use their registered trade marks to indicate the unique origin of their goods and services.
For example, we all know that Apple Inc produces products with the half-eaten apple logo. On the other hand, a film title does not typically direct consumers to the commercial origin of a film, such as the production company who produced it. Instead, the title is simply used to reference the film itself.
Despite this, a film title can still be protected by a trade mark in other circumstances under common law. This could be where a series of films is involved or the title is used to merchandise the film.
Film Series and Merchandising
Many well-known film series benefit from trade mark registration. These include the Harry Potter films as well as the Star Wars films. Like the titles of newspaper publications or magazines, these titles reference a collection of content that can be identified under one consistently used name. As a result, these movie titles are capable of identifying their respective film series. The same would likely apply to television series.
In addition, both series benefit from merchandising under their distinct names. Both the Harry Potter and Star Wars film series gross thousands of dollars every year from selling different merchandising goods. When movie titles are used in relation to these goods, consumers can identify the film’s trade source.
Ultimately, there is no clear-cut rule that applies to protecting movie titles with registered trade marks. Instead, IP Australia will consider the individual circumstances surrounding the use of your film title and then determine whether the trade mark can protect it.
Protecting Your Film
Whilst your film title may not benefit from trade mark protection, your film can still benefit from copyright protection. Copyright protection prevents your creative work from being copied by another person without your permission. Copyright law can protect different layers of IP within a cinematographic film. These include its:
- visual images;
- script; and
Under copyright law, filmmakers can:
- prevent others from reproducing your film without your permission;
- license the rights to your film in different commercial arrangements; and
- take legal action if someone infringes on your copyright.
Copyright protection is a vital tool for many filmmakers, especially when considering the competitive nature of the entertainment industry. It prevents others from using your work in bad faith. Luckily, filmmakers do not have to apply for copyright protection in Australia. This is because copyright protection applies automatically as soon as your film is recorded and produced.
You should note that filmmakers themselves do not always own the copyright to their films. Alternate arrangements can be made in the instance where films are:
- commissioned by a third party;
- produced by a larger production company; and
- submitted for competitions in film festivals.
For example, you may have to agree to transfer copyright ownership to the hosts of a film festival as a condition of entering your film into the contest. Doing so will allow the hosts to screen your film and potentially use it in their marketing materials.
Given that copyright ownership can change hands, you must read the fine print when entering into any of the above arrangements. If you are unsure who owns the copyright to your film, you should seek legal advice to clarify your arrangement.
Whilst trade mark law does not generally protect film titles, IP Australia may recognise your film title as a trade mark where it is used in a film series or to merchandise goods. If you cannot obtain a registered trade mark for your film, copyright law still protects your creative work. Copyright owners can prevent other people from copying their creative works without their authorisation. However, you should be aware that copyright ownership can change under different commercial arrangements. If you need help applying for a trade mark to protect the IP in your film, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
Generally, a standard trade mark application will require your details, a description of your proposed trade mark and the class or classes of goods and services that you intend to register your trade mark in connection with.
Under the Trade Marks Act, registered trade marks enjoy 10 years of protection from their registration date.