Commentary: Fox takes action against 'Day the Earth Stopped'

3:46 PM PST 11/11/2008 by Matthew Belloni, AP

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One's a big-budget remake of a 1950s sci-fi epic. The other features special effects that appear to have been created during the 1950s. One stars A-listers Keanu Reeves and Jennifer Connelly. The other is toplined by C. Thomas Howell and Judd Nelson.

But glancing at the posters for Fox's "The Day the Earth Stood Still" and the Asylum's "The Day the Earth Stopped," you'd hardly know the difference. And both have release dates scheduled for mid-December.

Well, maybe not. Or at least not if Fox has anything to say about it. This week, the studio took action against the Asylum, firing off a cease-and-desist letter and hiring litigation lawyers to go after the prolific purveyor of high-end, low-budget knockoffs of Hollywood blockbusters.

Not familiar with the Asylum's oeuvre? Perhaps you missed "Snakes on a Train," which hit DVD right around the time New Line's "Snakes on a Plane" debuted in theaters. Or May's "Street Racer," which came out a couple of weeks after Warner Bros.' "Speed Racer." How about last summer's "Transmorphers"? You get the idea. Produce a movie with themes similar to an upcoming blockbuster, borrow a trick from the porn industry and make the title comically derivative, create parallel marketing materials and take advantage of the millions the studios spend to promote their hits.

Can they do that? Fox, especially litigious among media conglomerates, seems to be willing to find out.

The MPAA's Title Registration Bureau handles title disputes for the studios and the hundreds of production companies that agree to abide by its rules. Most of them are resolved quietly and quickly. In 2004, Mel Gibson agreed to rename his Jesus biopic "The Passion of the Christ" because Miramax had the right to make a movie based on the Jeanette Winterson novel "The Passion."

Even when tempers flare, like when Fox and Paramount both announced major film projects called "Avatar" on the morning of Jan. 8, 2007, the MPAA guidelines helped resolve their issues (Fox's film kept the name; Paramount's is now called "The Last Airbender").

When the studios can't agree, like when "Goldfinger" owner MGM threw an Oddjob-sized fit over New Line's "Austin Powers in Goldmember," a three-member appellate panel can be empowered to evaluate whether the titles are too similar -- and, in the case of "Goldmember," to order New Line to recall more than 11,000 trailers and posters until a settlement was worked out.

Studio grievances usually are resolved with a little creative horse-trading. Disney once offered the titles "Father's Day" and "Conspiracy Theory" to Warners for the right to release Pixar's "A Bug's Life." Columbia is said to have extracted $600,000 from Disney for the right to use "Ransom" for the 1996 Ron Howard film. (Yes, ransom for "Ransom.")

But since no one is required to play in the MPAA's sandbox, companies like the Asylum are left to seek refuge under the vagaries of trademark and copyright law.

Generally speaking, free speech concerns prevent individual film titles from receiving any trademark protection. The title has to achieve a "secondary meaning" in the market, which is difficult to prove. "Gone With the Wind"? Sure. "Gone in 60 Seconds"? Probably not.

Then there's the question of whether the new title causes a "likelihood of confusion" in the marketplace or competes unfairly with the original. That's where marketing materials -- especially those featuring nearly identical typefaces and spherical blobs -- might raise copyright and trademark eyebrows.

"If they purposely try to copy the look and feel of the marketing," says Loyola entertainment law professor Jay Dougherty, who handled title disputes when he was a studio lawyer, "then they might be sitting ducks." Plus, Fox's "Day the Earth Stood Still" film is a remake, meaning the name might have acquired a measure of secondary meaning.

The Asylum didn't return calls to comment on the Fox letter. But in its defense, one need only peruse this year's AFM listings to see that many low-budget producers craft marketing materials to associate themselves with established studio franchises.

And title disputes are nothing new. The MPAA's Title Bureau dates to 1925, and as early as 1946, Warners threatened to sue over the Marx Brothers' "A Night in Casablanca," which the studio claimed was too similar to its 1942 classic "Casablanca."

"Even if you plan on rereleasing your picture," Groucho Marx famously responded in a letter to Warners, "I am sure the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo."

But what about Keanu Reeves and C. Thomas Howell?
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