Open Forum question via email from Brittany:

Is it ever okay for two very different movies to share the same title if the title is something vague or common, even a single word? For example, the word I was thinking of was “Hero”, but my screenplay’s subject matter is completely unrelated to the 2002 Jet Li film. I forsee a lot of problems down the road if I don’t come up with something more original, but it got me thinking – what is the etiquette when it comes to situations like this? Should an appropriate number of years have passed before a film with a similar name comes out, or should the title be abandoned altogether?

This subject came up for me when I first heard the Jackson Browne song “Tender is the Night.” I immediately went, “Wait a minute. That’s the title of an F. Scott Fitzgerald novel.” I thought that certainly Browne couldn’t legally do that. But after I did some research, I discovered this rather shocking fact: You can not copyright a title. Why? As I understand it, titles are typically too short to fall under copyright protection.

Which would explain why there are literally dozens of movie and TV projects with the title “Hero.”

So with my standard proviso — I am not a lawyer, I’ve never played one on TV, if you want actual legal advice, seek out a professional — I would say this: Don’t worry about your script’s title. Any script that enters into the acquisition process is pretty much assumed to have a w/t (working title). Studio marketing departments devote time and resources to a movie’s title, sometimes changing them to a song title as a hook for moviegoers (for example, the script “Boy Rents Girl” was changed to Can’t Buy Me Love) or some catch phrase currently popular.

While there’s no reason not to brainstorm other possibilities, just to make sure you’ve done due diligence, if the title you’ve chosen works beautifully for your story, and it happens to be the same title as a preexisting movie, then don’t change it.

Caveat: Obviously this wouldn’t be the case for super well-known and specific titles like Star Wars, Indiana Jones, etc.

BTW, while you can’t copyright a title, it is possible to apply for a trademark – if the title can be shown to be a key part of your brand. If, for example, you had a 1-woman show and your main character was The Outrageous Clown. Then you wrote a spec script called “The Outrageous Clown,” starring TOC as a key character. Maybe you had a blog with the url www.theoutrageousclown. Setting aside the question of whether you actually needed to trademark that title, the fact is given those circumstances, it’s likely you would have a good case in securing a trademark.

Now let’s see what our GITS legal eagles or studio marketing types have to say, doubtless poised to smack me down! Have I got it all wrong re titles? Or is there some shred of wisdom in my verbiage?