Trademarks

2001 Productions

2001 Productions

Since we're on the topic of copyrights, I have a somewhat related question for the gurus.

I know that, theoretically, a production is supposed to obtain permission from a company to feature their trademark. There are, however, many noteworthy exceptions, most recently the Oscar-winning animated short Logorama, which sets an encouraging precedent. Prior to that was The Coca-Cola Kid (one of my favorite movies).

In my current project we used several brand name products in the course of the movie, but usually took care that the logo wasn't featured front and center; e.g., a close-up of a beer bottle on a table was angled so that the label was only partially visible; an insert of a cell phone being dialed was shot such that the manufacturer's logo was upside down and at an angle.

There were, however, many scenes shot in a tavern. Since we used real, working business, there were, of course, neon signs and product posters hanging everywhere. The most blatant and distracting ones were taken down for the shoot, but there were too many to remove them all, and the walls would've looked silly bare. Also, in the scenes where the bartender is featured in close-up, the liquor bottle brands are clearly visible on the rack in the background. It seemed silly and potentially distracting to turn them all away from view, since they wouldn't be arranged that way in a real bar, so we left them. You can also clearly see the VISA and MasterCard stickers by the cash register.

My question is, does anyone have an example of a legal disclaimer I might include in the end credits to deal with this. I've seen them before, along the lines of "products featured in this film are not intended to endorse..." blah blah.

And/or is this the best way to deal with it?
 
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Michael Allen said:
This is by Michael Donaldson who's an entertainment attorney.

The important part of a trademark is what the mark represents. A trademark represents the source - it identifies who made the goods you are buying or who provided the services you are enjoying. So the big question remains, "Can I use someone else's trademark in my film?"

The good news is that as a filmmaker, your right to include a trademark in your film is clear. You have a right to include the trademark in your film as long as the trademark or the product bearing the trademark is used as it was intended to be used without any consequences of its use being abnormal or out of the ordinary. Therefore, as long as a filmmaker is using a trademark or logo as it was intended to be used, and do not disparage or tarnish the trademark or logo in your film, you may include such trademark or logo without asking permission to do so. Simple, right?


Like any other rule, there is always one caveat. You as a filmmaker do not have the right to commit trade libel, not even in the name of entertainment. Trade libel occurs when a product or service is falsely accused of some bad attribute. For example, if you showed someone in your film eating a McDonald's hamburger, then that person immediately keeled over because the food was poisonous, that would libel the trademark.

Another major question that arises sounds something like this, "So if I can use a trademark in my film in a non-libelous manner, why would I want to pay a license fee to clear it?" While the law does not require the filmmaker to obtain permission to use these items in film or television shows, there may be some good business reasons to do so anyway. For instance, broadcast television is an advertiser- supported medium. Therefore, if you used Coca-Cola labels on every beverage, and these beverages are prominently visible on the television screen, you have essentially given Coca-Cola free airtime.


I do not think the network broadcasting your show would be too thrilled giving away free airtime. Additionally as a filmmaker, you may potentially create more than one film. By showing goodwill and possibly paying or asking permission to use a trademark in your current film, the trademark holder may be willing to support, or even finance a portion of your project (assuming of course the trademark holder liked the use of their product or trademark in the film). So while permission to use a logo or trademark may not always be necessary, it might make good business sense to get permission anyway.

Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over thirty years. His book Clearance and Copyright, the third edition of which was just released, is used in over 50 film schools and has become the standard reference book for the industry. Visit: [http://www.clearanceandcopyright.com]
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Nice post. Thanks for that. That makes a lot of sense, and explains why it's okay to have trademarks on display at a convenience store -- that's exactly the use they were intended for.
 
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You have a right to include the trademark in your film as long as the trademark or the product bearing the trademark is used as it was intended to be used without any consequences of its use being abnormal or out of the ordinary.
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I always wondered about use of a car by bad guys in a movie. What if it's a Ford or whatever? I guess you have to remove the logos from the car to avoid an unsavory association.
 
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Blade_Jones said:
I always wondered about use of a car by bad guys in a movie. What if it's a Ford or whatever? I guess you have to remove the logos from the car to avoid an unsavory association.
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It's less a matter of that than the fact that major studio pictures have a huge product placement department. If, say, James Bond is driving an Aston Martin and the bad guys are driving a Peugeot, you can bet both companies paid money and/or contributed vehicles to the production, regardless of the association.

By the same token, a trademark will be intentionally omitted if it represents a competing firm to one that has paid for product placement. For example, ever notice that in movies in which someone uses an Apple computer, you almost never see an HP, Microsoft, etc. logo anywhere in view? Not an accident.
 
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Your post made me go back and take a closer look at that photo. You're right about the HPs. And not only that, apparently John Lithgow was there, too
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Who is the chick way in the background in that picture??? Could she just be an intern or someone who brings the coffee? If so then she's privy to sights that nobody gets to see!
 
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