How to Advertise a Movie Without Getting Sued
A movie poster looks glossy and simple. There’s the title, a catchy phrase maybe, and some heavily photo-shopped pictures of the star talent. Well, a movie poster is actually not that simple. Designers not only have to artistically portray the movie onto a one sheet (industry term for film poster), but they also have to be creative enough to get around all the bureaucratic and legal obstacles. So, there are both elements of legal compliance as well as creative genius involved.A Free and Clear Movie Title
Movie titles are not copyrightable or a subject of trademark ownership (with some exceptions). Yet, that does not exclude the possibility that a chosen title may still infringe on someone else’s trademark for another type of product. Take the movie Drop Dead Gorgeous, which is a faux-documentary of the violent struggle of Minnesota beauties vying for the title of Sarah Rose Miss Teen Princess America. It was originally named “Dairy Queens”, but the ice cream-churning Dairy Queen had an issue with this. Consequently, the studio changed the film’s title to its current designation.
To prevent such legal debacles, studios typically engage in a Title Search, which is a comprehensive investigation of prior uses of the proposed title, or similarly sounding ones, that appear in various media. The search usually involves sifting through trademark and copyright databases, and other film, music and print catalogues. The final compilation is a Title Report, which details the history of the use of the title, and which allows a studio attorney or paralegal to determine if a title can be used not just for the movie, but in connection with the merchandising for that film.
Beyond the task of title searching, studios must also satisfy title requirements set forth by the MPAA’s Title Registration Bureau (TRB), which allows studios to register their title choices. Under this system, the six major studios, as well as their subsidiaries, are all required to register their proposed film titles before any marketing of the film takes place. The MPAA then sends out lists of proposed titles, and subscribers can contest any title that infringes on (or is remotely similar to) one they may have previously registered. If an objection is raised, and the conflicting registrants cannot work out the dispute, the MPAA arbitrates and makes a ruling, which can be appealed.
Lee Daniel’s The Butler is a recent and preeminent example of such a disagreement that required the MPAA to arbitrate. Last July, the MPPA arbitrators held that The Weinstein Company (TWC) could not use the title “The Butler” on its upcoming film because that previously served as the title of a 1916 short film from the Warner Bros. library. Because TWC deliberately distributed marketing materials before the title was cleared (and before the arbitration), the MPAA faulted TWC for continuous use of the title in willful violation of the TRB rules, and fined the studio $400,000 plus $150,000 to cover WB’s legal fees. Though the danger of confusion between the two movies, which are nearly a century apart in age, is relatively low, the titles were identical. Consequently, following the arbitrators’ decision, TWC changed the name of the film to lead with the director’s name Lee Daniel, in a larger-than-normal size due to the punative nature of the MPAA arbitration decision. They also had to redo countless marketing materials to reflect the change.Trademark Clearances on Tag Lines
Unlike titles, catchphrases and slogans can be trademarked. Thus, a Trademark Search is definitely a good idea before selecting a tag line to be on the film’s one sheet. Failing to do so could lead to unwelcome litigation. To illustrate, marketers for the film Mission Impossible: Ghost Protocol used the slogan “Rethink the Impossible” which was placed on the film’s one sheet. Hypothetically, AT&T could have raised the point that MI’s tag line is confusingly similar to their “Rethink Possible” slogan.
A real-life example is Jerry Seinfeld’s 2007 Bee Movie, which faced legal trouble from the organic cosmetics company Beeceuticals for use of the slogan, “Give Bees a Chance.” The tag line was subsequently changed to a less contentious “Hold on to your honey.” Additionally, Michael Moore encountered such issues with his film Fahrenheit 9/11. The movie’s tagline “The temperature where freedom burns” was challenged by Ray Bradbury, author of the novel Fahrenheit 451, for being confusingly similar with slogan “The temperature at which books burn.” Credit Is Where Credit Is Due
Credit refers to attribution. Actors, directors, producers, and writers all want the honor of getting their moniker on the movie poster, but such a distinction is fairly hard to come by. For talent to receive credit they need to have negotiated the deal point upfront. There are two areas of the poster at issue for credits: the billing block and artwork credits (i.e. the area adjacent to the artwork title [a.k.a., the title treatment] of the film).
The design of modern movie posters illustrates the tension between two intersecting interests: studios want uncluttered marketing materials, whereas industry organizations (i.e., the Guilds) want their members prominently and fairly credited. Do these credit placements make a difference in who’s going to see the movie? Not likely, but credit is a matter of prestige and industry clout, and it can be a contentious deal point while negotiating contracts.
The credits at the bottom of a movie poster are known as a billing block or credit block, and appear in a highly condensed typeface. This is mainly because studio marketers save on creative real estate. To protect against studios from making billing blocks unreadably tiny, the Guild regulations require that individual credits of its member to be no smaller than a percentage of the size of the artwork of the title of the movie.
Two things govern the content, order, and format of the billing block: personal service contracts with cast and crew, and industry wide agreements with professional guilds – notably the DGA and WGA. The name at the top most left position of the billing block (most likely before the title of the film) is considered the most prestigious placement and is referred to as the top billing.
Major stars can also appear before the title or directly after. For spatial reasons, only key names are credited. The listing is usually in order of prominence, but for ensemble films, it is usually alphabetical to avoid fights amonst the talent. Via their agents, actors can negotiate to have the word WITH or AND before their names; such words tend to be used when a major star has a small but significant role. For example, American Hustle’s one sheet lists “Christian Bale, Bradley Cooper, Amy Adams, Jeremy Renner…. AND Jennifer Lawrence.” For more detailed information, the New York Times has a fantastic op-ed piece dissecting the meaning of all the ANDs, WITHs, and BYs.False Advertising
Studios must also be concerned about any potential false advertising claims. According to the Federal Trade Commission (FTC)’s guidelines, avoiding false advertising involves two questions: First, is the advertisement making a material misstatement about the product? Second, is that misstatement going to affect the consumer’s belief about the product? There is no case law for false advertising claims as directly applied to movies, but there are a couple of related examples.
In 2011, a Michigan woman sued the distributors of the film Drive because she said the trailer misled her into buying a ticket for the film. Her complaint states that “Drive was promoted as very similar to the Fast and Furious franchise, when in actuality, it wasn’t.” In fact, it had “very little driving in the motion picture.”
In 2013, the studio behind Jack Reacher ended up refunding the cost of a ticket to a New Zealand man, who felt ripped off after learning that a scene from the trailer did not appear in the final film. The scene at issue concerns “the explosion where the whole cliff comes down,” which was “the defining part of the ad that made [him] really want to go see the movie…aside from having Tom Cruise in it.”
Another example of false advertising is holding the movie out to be true when it’s not. Many posters describe the movie as “inspired by” or “based on a true story” or “the true story of….” The difference between them is somewhat blurry, but can make a big difference legally.End of the Reel
The main point is doing the clearance work beforehand saves money. If a studio spends millions on marketing and advertising, and then later figures out that they encroached on another’s title or trademarked slogan, or they disobeyed MPAA or Guild credit regulations, then all they’ve done is drop dollars in a bucket. So I guess doing your homework does pay off.
 Often titles can be cleared for a movie, but can not be used in certain areas of merchandise.
 This office does not file copyrights or trademarks, but rather the Bureau is a non-governmental system specific to the motion picture industry. The TRB was established in 1925 in response to filmmaker’s desire to have some protection over their title choices.
 The billing block also consists of the names and titles of many of the “above the line” talent, key crewmembers, and others involved in the production of a film. The billing also includes studio logos and the MPAA rating – these symbols are known as “bugs.” The name probably derives from the fact that billing blocks are of microscopic size and the logos actually appear to be bugs to the untrained or far-sighted eye.