In the streaming era, more television shows are being produced and made available to the public than ever before. In the last three years, there has been almost a 20% increase in unique program titles, so television producers must take significant care in naming their series to avoid overlap with the titles of existing series.
Unlike the series footage itself, which may be protected by copyright, the title of a television series may be protected by trademark under the Lanham Act. Importantly, trademark law lends protection only to the title of a series of creative works, not merely to one creative work. In practice, this means that the name of a television series may be trademarked, while individual episode titles are unprotectable.
When selecting a title for your television series, it is often essential to obtain assurances regarding your series’ title to avoid potential for trademark infringement liability. To this end, it is generally advisable for producers to obtain a title report before finalizing the name of their television series.
Title reports, sometimes referred to as title clearance reports, are documents that entail comprehensive searches of overlapping or prior uses of the same or substantially similar titles used in other intellectual property. Title reports highlight prior uses of your desired series title, which is essential to ensure your title is distinctive and non-infringing. Additionally, title reports are helpful to producers by providing an analysis of the competition their series’ title may face in the future.
Title reports typically search through the US Patent and Trademark database, the US Copyright Office copyright database, global trademark and copyright databases, internet domain name databases, Library of Congress records, as well as other proprietary databases containing various entertainment property resources. In some cases, title reports also search through business names and software names. Title reports typically will also review unregistered trademarks, both in the US and abroad, in their comprehensive evaluation surrounding your desired TV series title.
The primary purpose of obtaining a title report is to avoid situations where your desired TV series title has a title that is either identical or confusingly similar to existing creative properties. As discussed above, title reports are necessary to be certain that your TV series’ title is not at risk of infringing the trademark of another entertainment property. This helps to mitigate TV producers’ risk of being forced to defend against trademark infringement lawsuits.
Aside from confirming that your TV series’ title is unique and non-infringing, title reports are commonly required for production entities to secure Errors & Omission (“E&O”) insurance. E&O insurance is a specialized insurance plan protecting against liability from intellectual property infringement, breach of contract, defamation, invasion of privacy, and other claims that entertainment entities must commonly defend against. In the television production industry, E&O insurance is typically required by distributors and financiers before the creative property can be released. As a result, obtaining a title report is a crucial step that must be taken before a TV series can be premiered. In sum, title reports help to secure the smooth production, distribution, and release of entertainment projects.
In today’s ever-competitive TV industry, obtaining a title report is usually a necessary step in the production process. Title reports can cost anywhere from $300 – $2,000, or more, depending on the geographic scope of the report and the timeframe in which the recipient requests the report to be received. However, this cost represents a small figure when compared to the potential litigation-related costs involved with defending a trademark infringement claim.
If you are interested in learning more about title reports or would like to order a title report for your TV series, or have another production clearance related question, the experienced entertainment attorneys at Romano Law are ready to assist. Contact us for next steps.