I'm not sure where to post this so since I'm working on setting up distribution I figured here.

Okay... as we all know you technically can't show a product or logo that is trademarked. A work around is by obscuring part of the product. In my feature we use a well known propane lantern (at least here in the States). Here are two frames from the film, the two that I consider the most problematic.

Should I be concerned about releasing the film with these two shots (frames) or do you think I'll be okay?

Frame 1 (http://www.rpmfilms.com/Cole1.png)
Frame 2 (http://www.rpmfilms.com/Cole2.png)

I know absolutely nothing about movies, but a little about Trademark protection. Just for giggles, I googled and found this;
http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_misst eps.html

If the author is correct, and she does cite a jucidial ruling, you have nothing to worry about.

I would say the second would be more problematic than the first as the name is obscured in the first frame.

Simply put some duct tape on the name to cover it.

This is what a lot of low budget filmmakers have done successfully.

Case in point: Look at Clerks.

We did that on other stuff but neglected to do it here. In any event it's too late since the film is done.

Funnily enough I read on this site somewhere that the rules about using trademarked products aren't as stringent as they seem. To be honest we had quiet a few on L4D be it Adidas T-Shirts, Batman Comics, Bruce Lee Images and many others but teh film got E&O without an issue and has been released so far in 14 countries will no fall out.

To be honest Thunder whilst you, like I, should have considered this whilst filming most people dont.

But more over most companies wont even notice as unles syour film breaks huge teh chances of this causing any problems is slim to next to nothing.

In short I wouldn't sweat it too much

We did that on other stuff but neglected to do it here. In any event it's too late since the film is done.Not really. Fuzz it out in post.

An ounce of prevention is worth a pound of cure.

this is a touching thing, anything that owned by anyone that are 'used' or 'shown' can be liable for a lawsuit, according to my entertainment attorney whom specializes in copyright infrigement stuff...

HOWEVER, if the 'copyrighted' material said is in a frame as 'part' of the scene, and it is NOT as a 'method' to sell the scene, then you should be able to get away with it... An example she cited was: a bedroom where there are some 'movie posters' on the wall, if the movie is used as a decorative of this teenage boy's bedroom, then it's 'ok' (please note, I put a '' around ok, cause this is all depending on how much the company who owns the poster want to get you).

Now, she also said that the company who owns the copyright or trademark, if they see the film and it doesn't 'sound good' with them (like they hate the plot, or it might represent their product in a wrongful manner), they can stop you... but that's usually a 'small chance'.

Well, the Coleman lantern is used for what it's designed that being a lantern. And in the end it does help protect the characters. What better way to ward off zombies than a Coleman lantern? :)

The chances are you'll have no problem since the product is being used as intended. The article oakstreet linked is a good one - but is ultimately of no use to filmmakers like us. Disney can afford the legal fight. Even if you win, can you afford to fight Coleman? More important - will the distributor interested in buying the rights be able to afford a legal fight with Coleman - even if they win?

Have you contacted Coleman?

Have you contacted Coleman?

There is a fairly fine judgement to be made here -- if you contact Coleman, you are giving them permission to refuse you the right to use those shots, simply by making an issue of this.

As they have little to gain from saying yes -- chances are they will say no.

If you raise the question with the distributor -- i.e. you ask them whether they feel that it's going to be an issue -- then suddenly it will become an issue -- because as directorik correctly points out, they are going to take the most conservative line. So that's not a great option either.

At this stage of the game, I'd be tempted to just keep quiet and see how it shakes out -- providing that you are absolutely sure that the product isn't brought into disrepute. However, that is a strategy with a small amount of risk attached -- and ironically the more successful the film the greater the risk!

At the moment your options are:

1) Ask permission from Coleman -- opening the door for a refusal
2) Keeping your head down and your mouth shut -- leaving you on a marginal risk of litigation
3) Reshoot
4) Stick a garbage matte blur over the offending logo (a tacky, but easy fix)
5) remove the logo completely frame by frame in photoshop (a perfect, but time consuming fix)

you could rotoscope it out.. depending on what software you have available to you for post, this could be very easy or very time consuming.. either way though it would save you a reshoot. :)

Actually the chances are they'll say yes. Big companies aren't always the ogres many people think they are. They need to protect their property, just as we all do, but if they are asked, rather than forced (like the Disney example) they can be very reasonable.

While the risk of litigation is marginal, no distributor wants to be put in that position. This isn't something they will miss. So the way I see it:

Every distributor is going to ask if you have clearance.
If you don't you are going to have to get rid of the logo.

Colman might give permission.
If they don't you are going to have to get rid of the logo.

On a show I did a few years back Red Bull not only gave us permission, but sent five cases to the set. On a no budget, horror movie shot independently, without a distributor. I tried the same thing with Ford a year later. We didn't get five cars delivered...

Rik is right.

I hadn't taken into account the level of conservatism amongst distributors.

Sorry to have muddled the waters. I just think it's such a ridiculous thing to have to worry about.

I know absolutely nothing about movies, but a little about Trademark protection. Just for giggles, I googled and found this;
http://wendy.seltzer.org/blog/archives/2006/05/01/wsj_on_computers_in_the_movies_and_trademark_misst eps.html

If the author is correct, and she does cite a jucidial ruling, you have nothing to worry about.


I got the same info at a seminar given by a prominent film producer. However, if you want to be extra careful, you can contact the legal dept at the particular company and get formal sign off.

So as I see it now, my options are: a.) ignore the problem and see if anyone makes a stink (which they probably won't), or b.) take a gamble and contact the company to see what they say thereby alerting someone to the problem. Hmm...

No. The way I read it the options are:

1) Take a gamble of losing a distribution deal by not having clearance
2) Take a gamble by asking permission from Coleman
3) Put more time into post production masking the problem -- which you'll have to do anyway if Coleman say no.

So, I guess nobody here is in the movie business to push a social agenda; like the defence of our constitutional rights to free speech, or attacking the hegemony of corporations. I can't say anything, because I've only released one feature, and that was self-distributed. I don't know how hard it would be to take risks if you have to convince your distributor to go along with it (another, undue, corporate influence). However, I see a real problem with editing movies as a form of conflict avoidance; especially if it's in response to corporate extortion.

I know, I know, we live in the real world and we all have to pay our bills. Don't get me wrong; I'm not an idealist, and I'm not lecturing, BUT when there is a legal precedent in your favor, it would be foolhardy for the corporation to bring a lawsuit that they could not win; unless you cast their product in a really bad light. Even then, the publicity might backfire on them and double your sales volume.

I have to do more research on this subject. It seems like we're setting a terrible precedent by giving in too easily.

I'm a pure escapist when it comes to movies...so few of the non-escapist movies have been able to keep my attention.

As for corporate ownership of their trademarks...um...I think I just said it...can I have your camera? I promise I won't use it for anything untoward.

:)

We as independant filmmakers seem to have an interesting dichotomy of thought. We want to make films on our own terms so our vision of our properties (films) stay true to our intentions...but when big $$$ corporations want the same, we cry boo! It's easy to ask. My father always says..."It never hurts to ask...worst they can do is say no."

However, I see a real problem with editing movies as a form of conflict avoidance; especially if it's in response to corporate extortion.

I have to do more research on this subject. It seems like we're setting a terrible precedent by giving in too easily.

The problem is not with the law as it exist or as it can be defended in court -- the only issue here is what stance a distributor will take.

The distributor doesn't want evidence that if they go to court they'll win -- they want to hear that they won't be in court at all.

The whole issue is fundamentally about how conservative distributors are -- in terms of litigation avoidance.

In this game the ability to defend is not an issue -- the mere fact that a distributor might have to spend money on court appearances to make that defence is enough of a risk to jeopardize a sale.

In reality 90% of all legal conflict issues are about using the fear of having to fight a legal battle, rather than the battle itself -- in these kind of games the person perceived to have the deepest pockets wins almost every single time.

The distributor will look at the issue and ask themselves one simple question, Is the money I can make from this film worth the cost of going to court against Coleman? -- whether they could win or not.

Because of this one of a Producer's primary roles is providing a complete set of delieverables -- some of which are technical things -- but the vast amount of which are the contracts and permission that prove to the distributor they will not end up in court -- period.

In the case of this film, they are currently one document short of proving that.

By asking, you are giving them veto power that the law does not afford them, AFAIK.

A film sequence shot on a city street, might reveal any number of trademarks, on cars, clothes, storefronts, etc. ... where do you draw the line?

I do take some offense at the suggestion that I would disrespect anyone's property. I don't agree that having a Levi's logo show up on a pair of jeans is somehow mistreating the company's property. It would not damage Levi to have their products shown, being used as they were intended. If it was my company trademark, I'd think of it as free advertising to see my products being used or worn in a feature movie. I do respect the rights and interests of others, and I resent any insinuation otherwise.

I also understand that this entire issue may be in the hands of the distributor. However, I am speaking more in the hypothetical, and just wondering if anyone else saw anything wrong with this picture. Apparently I'm completely out of my element here. I will defer to those with infinitely more experience than I, but I'd appreciate some respect, in that I'm not suggesting that anybody's property (physical or intellectual) be misused or abused.

(please do not read any hostility or animosity into this post, none was intended ... just trying to be succinct)

If you are showing the product as it is intended to be used, then you are safe - according to what I learned at this seminar. If the product is heavily featured, then contact the manufacturer and get them to give you permission. When I approached Nikon for permission to use their cameras in my film, the only thing they wanted to know was the exact product(s) that would be used, who would be using them in the film (I had to give them the names of my actors - I would imagine they did some rudimentary background check to make sure my actors weren't child killers or something) and who would be distributing the film (me). They signed off no problem. Now, I don't know what would need to happen if my film was picked up by another distributer (won't happen, but 'what if...') or if a cable show wanted to broadcast it or if I posted it on YouTube. I would imagine I would need to inform Nikon. But would Nikon cause problems? I doubt it. Can you say free advertising? They also signed over permission for me to use their logo in any advertising for the film, anywhere, on my website, in any press releases, posters, etc. I was surprised at that. So, point is... don't underestimate the power of film and the free advertising you offer. I would think if you had your serial killer/molestor/drug addict walking around with an ipod, that might be problematic, but maybe not. Take a chance and call an entertainment lawyer and see if s/he'll talk to you for a minute about it.
S/he might give you some free advice - you could turn into a million dollar client one day.

Hypothetically, perfect world...everything should be available for us to give a realistic presentation and have actors not have to pick up containers in certain ways to hide labels.

I tend to be more of a pragmatist, a question like this could be something to make a film about to open a dialog about it, but as far as the situation exists now...we are slaves to the end goal of our product. If you will be self distributing and are willing to take the risk of including whatever product...go for it...you'll more than likely have no problems...but what if one product owner decided to sue, what is your financial exposure. It's a gamble. How much are you willing to spend to defend your right to use the product correctly per the law? Right or wrong, you lose financially. At least if you are in the same financial situation as me for filmmaking.

Mr. Knightly. I'm in agreement with you. As I said way back, I understand we all need to eat and pay our bills, and we can't afford to be too idealistic. I know you are right. For me to argue with you would be like a 4 year old telling his grandpa how things should be. Like everyone, I pick my battles carefully, but my goal is to live up to my principles as well as I can, because you can't put a price on a good night's sleep.

Thanks for the discussion, anyway. Let me say to anyone reading, nothing I've posted was meant as sagely or legal advice for shooting a movie. I was just thinking out loud, about how much control we really want to give up, where the lines are drawn, and how the law works to protect the rights of everyone involved. If this decision really belongs to the distributor, then so be it.

Douglas Toltzman

As I've stated in the past, on this and other boards...discussion is the hallmark of an advanced community. These are important issues and need to be discussed.


which of us is the 4 yr. old?

which of us is the 4 yr. old?

That would be me. I thought that was obvious!

Actually I completely agree with you -- it's a farce that film makers should have to worry about trade mark infringement.

This has been a good conversation... very insightful. Thanks to everyone for responding.

If something like a quick shot of a lantern is a serious issue for the distributor, then they are just too wimpy. Coleman most likely doesn't care and/or appreciates the free advertising.
There is something in the US called the first amendment which carries more weight than a quick shot of a trademarked product! - No matter what corporations would like to have you believe.
Even if they do complain, they are unlikely to win anything, they will look bad in the process, and they will spend money on pointless litigation.
Do you remember the film "Coca Cola Kid"? The entire film was about coca cola. Coke realized they'd hit too much bad press if they attempted to litigate.

Actually I completely agree with you -- it's a farce that film makers should have to worry about trade mark infringement.
It's a farce until YOU are defending your trademark. Then it's your livelihood.

What if: You go the movies and two characters are watching TV and they are watching a movie YOU made. They discuss it (all good, of course) as a story point. But the producer didn't ask you for permission. I assume if you aren't making a living with your movie you might say, "Any exposure is good." But if licensing that movie is one of the ways you earn a living, you might wish to have, al least, been asked.

If something like a quick shot of a lantern is a serious issue for the distributor, then they are just too wimpy.
This may be. And if Thunderclap (or any filmmaker) is willing to take the chance, that's fine. But if a "wimpy" distributor choses not to distribute your movie because you don't have all the legal clearances, that's money YOU lose. All of the distributors I use are VERY wimpy - but they pay.

"The Coca-Cola Kid" is a great example. Proof that not getting clearances can end up in the filmmakers favor. But the director and the prodCo (Smart Egg) already had a fairly good track record. Precedent shows Thunderclap and the distributor would win if Coleman chose to fight. Is that a gamble worth taking? It might be.

Again, even if you win...if it goes to court, you may lose your livelihood pursuing a verdict that says you're right...that's the gamble...morals/ethics are irrelevant except for the sake of open discussion for this topic.

Should doesn't matter if you go broke and can't pay your rent/mortgage.

There's always at least one pragmatist in the crowd!

As a counterpoint, though ... a high price has been paid for our right to free speech, and a filmmaker's career is dependant on protection of that right. Someone has to be willing to take some risks, or our rights and legal protections will just continue to be whittled away.

Did Morgan Spurlock get permission from MacDonalds to use their trademark in "Super Size Me" ? Somehow, I doubt it. On the other hand, if you don't aspire to make that sort of movie, it isn't such a big deal. I have plans to make a movie about pointless destruction and thoughtless consumption of natural resources. I'm sure that will offend a lot of people, but I honestly don't care. It's a not-for-profit project, so there's no telling how long it will take me to finish it. Then you can all laugh and say "I told you so".

Knightly, I know you're right, and I know I'm going off on a tangent with this. However, I think we should always take these issues very seriously. After all, people have given their lives for the privileges we enjoy.

Douglas Toltzman

I don't have the luxury of standing up for what I think is right currently...maybe once the kids leave the house (I started to late to do it before I had kids).

I don't have any dependants, so I cannot say what risks I may or may not take if I had them.

In any case, this particular case of the Coleman label wouldn't be worth even a nominal risk, since it's so easy to fix in post, and it wouldn't alter the story or message in any way. This discussion would be far more meaningful, if we were discussing a substantive change. Also, I think if I were going to "fix" a potential trademark issue, I would fix it before anyone made an issue of it. That way, nobody will see it as a victory, and be encouraged to demand other edits. After all, if nobody sees it, it was never there.

found a relevent link tonight while watching the video grunt podcast:

http://www.centerforsocialmedia.org/

they have a resource on fair use in films (primarily for the purposes of documentary).

One major issue is (and a friend of mine had this) he wrote to Miramax asking for permission to have a Pulp Fiction poster in teh background. Now this film and the poster would never have been an issue but because he raised it they told him he had to write to Tarantino's compnay and get permission from them.

In the end it cost him close to £1k just for one poster which would never had been noticed anyways. The lesson here is sometimes beging totally upfront isn't always the cheapest option!!!

Now this film and the poster would never have been an issue...

I wouldn't bet on that. Using copyrighted images, music, etc. in a commercial product is really dangerous ground. Your only legal defence is "fair use", and the use you cited probably wouldn't qualify, so the penalties could be steep. In this area, the law is not on your side, so I think your friend did the right thing.

Here's the bottom line (as I have researched this).....

If you ask permission it is proof pisitive that on that date you asked, you believed that you needed permission. Even a request loaded with hedge words and disclaimers is a request. So DON'T!!!!

You have every right to make a realistic film. Therefore all the trademarks and product names that show up in a realistic scene are fair game. As long as the products are used properly and safely, as the manufacturers intended you may use them without obtaining permission.

Other questions you might ask:
1) Amount and substantiality of the portion used
2) Will the public think less of the product

I'm with you on this, Blade. I also subscribe to something that was said in the article that Knightly linked; if you don't use it, you lose it ... referring to the rights granted by fair use. I think the same could apply to our rights regarding "fair use" of trademarks, as they appear around us everyday (try taking a photo at a ball game that doesn't include a trademark).

However, your bottom line doesn't take into account what you are going to do if you need a distributor for your film, and no distributor will assume the risk. From what I've read here, and in other sources, that is a real probability.

True. It appears as though this guy's use of the Coleman product is harmless and therefore fair, but distributors are paranoid.
So wouldn't a distributor contractually make YOU assume the risk of any suits pertaining to copyright infringement? Or would they still be too afraid?

...well, this is what I haven't heard (read)....

I think we all know how much it takes to shoot something important to us, however, just how much effort would it take to re-shoot the scene? How prominent is the Coleman logo? If its only a frame or two, maybe you could fake it, which is why I am asking about how much effort.

...freedom of speech is cool and all, but when it comes to somebody's logo and how it is represented, things get really sticky...:huh: has a verdict on how to handle this been decided upon??

-- spinner :cool:

I'm thinking of just ignoring it since I can't reshoot (we shot the film six hours away) and blurring would be tough since in the actual movie the camera is handheld and moving quite a bit. I think, in the end, it happens so quick the vast majority of people won't even register it.

This is one of the things and E&O insurance in the US should cover, hence why you are mad eto take it out for all released. But it's a costly one and noone wants to have to make a claim. A nice catch 22...

But as I said we sailed through a US release with some rather liberal and accidental use of brand names (one lesson that was learnt) and so far have had no issues from over 14 tertitory releases so I think for the most part you will get away with it.

I'm thinking of just ignoring it since I can't reshoot (we shot the film six hours away) and blurring would be tough since in the actual movie the camera is handheld and moving quite a bit. I think, in the end, it happens so quick the vast majority of people won't even register it.


...well if you aren't doing anything that would alarm Coleman, and if the logo isn't on screen long enough to register, and if your film isn't called the 'Coleman Serial Murders: A True Story' or whatever, you probably will be okay.

I am no expert, I know less than the folks who have posted so far, but next time, cover the logo.

I had an internship with an small advertising agency for a few months a long time ago. When it came to the 'clients' logo, it was a deal to even change the perspective of the logo, meaning if you made the logo look as though you were looking at it from the side or made it look as if the top was tapered and the bottom was wider, sort of like the text at the beginning of the Star Wars movies, it didn't matter that it was a recognizable logo. The client could get away with not paying you. All they would have to say was "that's not what our logo looks like".

I know that's not exactly the same thing, but again, when it comes to a logo, to represent their product, you have to be careful. That's why people show the back of potato chip bags in movies.

Cover the logo, better safe than sorry....

-- spinner :cool:

To give everyone a clear idea of what I mean by "it happens so quick" here is the shot (in QT7 format) that fully reveals the logo. Personally, I doubt anyone will even register it.

DitW Shot (http://www.rpmfilms.com/Gas_Shot.mov)

Adobe After Effects 7.0 has motion blur. I think you do would a clone stamp of the part of the canister that would be used to cover up all or part of the logo. You can actually do touch up work with Photo Shop alone, although more tedious and you can't preview it in PhotoShop.

After looking at the video clip, I don't see what all the fuss was about, in the first place. I'd have to agree that it's not prominent and can probably be ignored.

It was a good discussion, anyway.