Moviegoers flocking to Will Ferrell's Kicking & Screaming this Friday may not remember a 1995 film called Kicking and Screaming, but Noah Baumbach fans can be forgiven for doing a double take. David Cronenberg devotees are also seeing double as the title Crash, the name of Cronenberg's racy 1996 drama, re-appeared in theaters last week, this time as a film directed by Paul Haggis. Given that there are approximately 116 suitable synonyms for kick, scream, and crash in the trusty Synonym Finder, one has to wonder: How does title duplication happen?
Jimmy Miller, a producer for the Will Ferrell Kicking & Screaming, said that his team was not aware of the Noah Baumbach title when they came up with their own. "It seemed to fit the movie well, kids kicking soccer balls and adults screaming," Miller added. "We tried coming up with different options, like Soccer Dads. But in the end, we all just felt like Kicking & Screaming was the best title for the movie." Likewise, Bob Yari, a producer for Haggis' Crash, says that he and his team forged ahead with Crash because it "speaks to the essence of the film."
While executives involved in both Baumbach's and Cronenberg's productions were alerted to the duplication prior to release, Mark Amin, an executive producer for Baumbach's Kicking and Screaming, says that since "the story line is so different, it's hard to do anything about it."
Not everyone is as calm about the situation. David Cronenberg says he "hates" the decision to name the Haggis-directed movie Crash. "Functionally, it's stupid. Once they're both on the DVD shelves, there's going to be confusion." He has a point. Both films are dramas and both have posters that depict dark and mysterious scenes with individuals desperately clutching each other (albeit in a very different manner). Is this confusion worth a lawsuit? "The last thing a creative person wants is litigation, which is anti-creative," Cronenberg says.
It would be a tough case to make, regardless. Film titles cannot be copyrighted, and although trademark and unfair competition laws can offer recourse, the litigant must convince the court that use of the name misleads or confuses the public. This can be a difficult burden of proof for films like Baumbach's Kicking and Screaming and Cronenberg's Crash, which received critical acclaim but have not entered the public consciousness the way, say, Star Wars has.
The larger force at play in title disputes is the Motion Picture Association of America, which established the Title Registration Bureau in 1925 in response to filmmakers' desire to have some protection. The bureau works as follows: The seven major studios, Paramount, Buena Vista, MGM, Sony, 20th Century Fox, Universal, and Warner Bros., as well as their subsidiaries, are all required to register their titles. Filmmakers, producers, and small distributors can opt in to a subscription service for a mere $300 per year. Members register their works-in-progress with the bureau. The MPAA sends out lists of proposed titles, and subscribers can contest any title that infringes on one they may have previously registered. If an objection is raised, the MPAA arbitrates the dispute and makes a ruling, which can be appealed.
The $300-a-year fee may seem like a pittance for even the scantest film budget, especially when you consider that the work of someone like Baumbach could be protected from infringement by behemoths such as Universal. But there are myriad problems with this system. First, studios often register multiple titles with the MPAA to corner the market on a specific subject. In 1990, a Dutch production company sued director Ridley Scott when an ad in Daily Variety anticipating the 1992 release of Scott's Christopher Columbus appeared on the same day as an ad for its own blockbuster, also titled Christopher Columbus. Evidently, the Dutch company had already registered five "Christopher Columbus" title variations with the MPAA, including Christopher Columbus—The Movie, Christopher Columbus—The Discovery of America, and the ingeniously titled Christopher Columbus—The Motion Picture. In the end, Scott opted for 1492: Conquest of Paradise.
Even though Scott changed his title, studios have deep pockets and can afford to be wrapped up in arbitration for long periods of time, giving them leverage over movies made outside the studio system. As a result, Mark Litwak, an entertainment lawyer, rarely recommends that his non-studio clients register with the MPAA, especially given the high number of film titles contested that aren't identical. For example, the MPAA forced Willard Carroll to change the name of his 1998 movie Dancing About Architecture to Playing by Heart, because of the impending release of Dancing at Lughnasa.
Sometimes, the studios do go head-to-head. In 1997, Sony claimed Miramax's title Scream was too similar to Screamers. Miramax was initially ordered to pay $1,500 per screen per day in damages, as well as additional fees; the two groups eventually settled. Many disputes are resolved by barter rather than payment. When MGM contested that New Line Cinema's Austin Powers in Goldmember infringed on the popular James Bond title Goldfinger, New Line offered concessions, including "the services of Mike Myers to promote the ABC telecast of the original Goldfinger," and a delayed release of its Denzel Washington movie John Q, reportedly so that MGM's Bruce Willis pic, Hart's War, would not have to compete with John Q for President's Day weekend box-office attention.
Title duplication can have an upside. Modern-day remakes of classic films like Father of the Bride frequently bring new life to the original. As Yari, the Crash producer, says, "If anything, it may be positive for [Cronenberg's film] to renew interest in the title." But Cronenberg is not consoled: "It's not just me and my movie … [Crash] is a very famous book by J.G. Ballard, which is a very important and seminal novel. It's very disrespectful," he says, adding that, of course, Haggis' creative team could have come up with an alternative.