The letter, dated Oct. 6, came from a Raritan, N.J., law firm and
sounded a blunt warning to L.A. indie filmmaker Seth Landau:
"Our clients are the writers, producers and directors of a feature
entitled 'Take Out.' It has come to our clients' attention that you
have produced/directed a film also known as 'Take Out' "and proceeded
to give Landau 10 days to change the name of the film. The letter
ominously concluded: "Whether further action is to be taken will
depend entirely upon the nature of your response."
It isn't unusual for Hollywood studios to challenge rivals over film
titles that might be too similar and could cause confusion among
moviegoers. But the case of the "Take Out" versus the "Take Out" is
hardly such a high-stakes showdown: This dust-up over identical film
titles involves two low-budget, independent movies with vastly
different characters and story lines.
The filmmakers represented by the law firm - Crefilm, and co-directors
Sean Baker and Shih-Ching Tsou - spent $3000 on their film, which was
shot cinema verite-style on digital video. It is a day-in-the-life
take on Ming Ding, an illegal Chinese immigrant working as a
delivery-man for a Chinese take-out shop in New York who gets behind
in his payments to smugglers and realizes he must double his tips in
order to pay off his debts.
Baker, a New York University film grad, and Tsou, debuted their film
at the 2004 Slamdance Film Festival, and it has been screened at more
than 25 other festivals, grabbing the grand jury prize at the
Nashville Film Festival. The New York-based distributor CAVU Pictures
plans to release the movie in art house theaters around the country
sometime next spring or summer.
By contrast, Landau's film was produced for $13,000 and shot on a mini
digital video camera in his hometown of Phoenix and tells the story of
a man who wages a campaign to rid the nation of chain restaurants.
Landau, a journalist-turned filmmaker who attended Arizona State
University, has submitted his film to a number of festivals, including
Sundance and Slamdance, but does not have a distributor.
Both sides are vowing to stick with their respective titles, despite
the inevitable confusion that may arise.
Landau said he was caught off guard by the dispute because independent
filmmakers often go out of their way to encourage each other - not
send threatening letters from lawyers. "You see this kind of thing
happening to studio movies all the time, "Landau said, "but you don't
often see it in indie film ranks."
Indie filmmaking, he said, is usually a "very communal" place in which
filmmakers adopt an attitude of "let's get out there and help each
Michael Sergio, chief executive and co-founder of Cavu Pictures,
worries that having two movies with the same title could result in a "confusion of product."
"Blockbuster would frown if there were two competing 'Take Outs' on
the same shelf," Sergio said. But he added that because the Baker-Tsou
film that Cavu has agreed to distribute is expected to reach the
marketplace first, "the impact is more on them than us [to change
titles]. Any other distributor that picks up their film will make
them change their title."
But Landau doesn't think that's fair, since he was the first to
register his script with the Writers Guild of America in January 2003
- a full year before the other film arrived at Slamdance. He said
that before registering his tile, he checked the Internet Movie
Database web-site and could not find another film with the title "Take
Sergio, however, points out that his film screened at Slamdance months
before Landau's film went before the cameras. Sergio also accused
Landau of trying to gain some publicity off CAVU's film" "If they
really want to generate free publicity they should simply change their
title to 'Gone With the Wind.' "
Major Hollywood studios frequently go toe-to-toe with their rivals
over film titles. But these disputes, while they become rancorous,
rarely become public. Under rules of the Motion Picture Assn. of
America, the member studios are required to submit such disputes to an
outside, independent arbitration panel, which hears arguments on both
sides and issues a ruling.
Tom Sherak, a partner at Revolution Studios, recalled a dispute that
erupted last year when Revolution announced plans to release a
Christmas comedy starring Tim Allen and Jamie Lee Curtis and based on
the John Grisham book that the studio wanted to title "Skipping
Christmas." Sherak said DreamWorks complained because that studio was
making a dark comedy called "Surviving Christmas" starring Ben Affleck
that was due out at Thanksgiving, and thought the two titles were too
similar and would confuse moviegoers.
The case went to arbitration. While sitting around drinking coffee and
soft drinks waiting for arbitrators to rule, Sherak said DreamWorks'
attorney, Bert Fields, looked over at the Revolution team, headed by
Joe Roth, and said, "Why don't you use a title like 'Christmas with
the Kranks?' " since Revolution's film featured a couple with that
unusual last name.
"Joe looks at me and said, 'Hey, that's not a bad title,' "Sherak
recalled. "I said, 'No, it's a good title.' " They took Fields up on
his suggestion, and the dispute quickly evaporated.
As for "Take Out," it doesn't look like either side is eager to give in.
"Although its impractical to have two films with the same title out in
the marketplace, we know that both films are very different from one
another, and we wish the other filmmakers success," said Isil Bagdadi,
CAVU's president of distribution and marketing.
Landau, meanwhile, said it would cost money to go back into his film
and change his title. "I honestly believe there is room for two
movies in the world with the name 'Take Out,' " he said. "I like the
And while Landau's backers complain about NYU film grads with "high
priced" lawyers writing cease-and-desist letters, Sergio and Bagdadi
point out that the lawyer who wrote the letter in question is Stephen
Baker of the law firm Baker and Rannells, P.A., who also happens to be
the co-director's dad.
Sergio said it's lucky that these are two small indie films.
"If they were doing something like this to Bob and Harvey Weinstein
[the former co-chairmen of Miramax Films]," Sergio said, it would be
like Godzilla's foot coming down on Bambi."