Copyright issues with franchises?

[MalcolmOng]

Hey guys,

I have a quick question regarding copyright issues for franchises if i use it in a film i make. Say I have a couple of people in the film who are huge tabletop warhammer fans, and i film them playing warhammer, etc. Are there any copyright issues for this? Would i get sued/need to pay royalties? I'm not creating a story around the warhammer stuff, but rather the protaganists in my story just happen to be warhammer fans as part of their character. Anyone have any input? Would i need to create my own fictitious franchise just to use it? (probbaly not possible)

[Captain Pierce]

Games Workshop (the makers of Warhammer) are incredibly uptight about their intellectual property, so my advice would be not to risk it. :) (And I say that not to bash GW, although the choice of words may imply so.)

[bosindy]

This is not a copyright issue but a trade libel one. The general rule is that if you use a product for it's intended purposes. (character drinking coke) you are okay. If you have a story that has coke is poisonous because they outsourced to china, no good.

I am not familiar with what warhammer is, but if it is like monopoly, and you have just charachters playing the game and they are not a group of pedophiles or murders, then I would say you are fine.

As always, it is a bad idea to take legal advice on line and you should consult an attorney in your area bc inevitably this is area of the law is fact specific.

[GenJerDan]

But only if you don't show the actual game. The screens are copyrighted. :)

Ever wonder why you don't see a Ouija board in a film?

[David Jimerson]

Ever wonder why you don't see a Ouija board in a film?


Why?

http://www.eldesvandeveela.com/desvan/caratulas/witchboard.jpg

http://www.horreur.net/img/witchboard2aff.jpg

[HorseFilms]

You can use a generic Ouija board in a film, you just can't use the Parker Bros. Ouija board. I hear they like to sue.

[GenJerDan]

Yep. Parker Bros. don't like it.

Kinda silly. Everyone assumes the boards shown are them, anyway.

[bosindy]

Yeah, but people make the Ouija board part of the story. "lets try to contact so and so." People playing a game dispassionately and discussing other things IMO is fine. We are dealing with trade libel not copyright. companies put these products in our society and have an expectation they will be viewed.

Now whether the art that accompanies it is protected under copyright (insert, poster) that likely is.

[sean90291]

No trademark should be reproduced in any commercial form, including a movie, without getting approvals or you're exposing yourself to a lawsuit. So no Coke cans, even if they drink it and say "mmm good." You have to clear the use of that trademark in your film. Ouija boards are not necessarily a trademarked property. It's an old, public domain "game" and you can make your own or find an old one. But the Parker Bros. logo and any particularly distinctive layout/art on that Ouija board would be registered trademarks and copyright.

There was a feature film at Sundance a few years ago (can't remember the name) that got offered a couple million bucks for distribution...until the distributor discovered that things like book covers and such were not yet cleared. By the time the filmmakers had cleared all the Coke cans and other labels in their movie, the heat was off and they ended up with a fraction of the distribution fee they were originally offered.

[bosindy]

No trademark should be reproduced in any commercial form, including a movie, without getting approvals or you're exposing yourself to a lawsuit. So no Coke cans, even if they drink it and say "mmm good." You have to clear the use of that trademark in your film. Ouija boards are not necessarily a trademarked property. It's an old, public domain "game" and you can make your own or find an old one. But the Parker Bros. logo and any particularly distinctive layout/art on that Ouija board would be registered trademarks and copyright.

There was a feature film at Sundance a few years ago (can't remember the name) that got offered a couple million bucks for distribution...until the distributor discovered that things like book covers and such were not yet cleared. By the time the filmmakers had cleared all the Coke cans and other labels in their movie, the heat was off and they ended up with a fraction of the distribution fee they were originally offered.

Your statement is 100% incorrect legally :smile:, but this can be your opinion. The film you speak of had issues with book covers and paintings which you do need to clear. There is no such thing as clearing a trademark.

I am a strong advocate for copyright protection and have always said clear it with issues of copyrighted material. People get confused with trademarks and that is why speaking to an attorney is a good idea. The Ouija proves the need to have your specific facts looked at. Anyone putting money into a film should always have an attorney help them create a clean chain of title to the film.

[TwistedLincoln]

Your statement is 100% incorrect legally, but this can be your opinion. The film you speak of had issues with book covers and paintings which you do need to clear. There is no such thing as clearing a trademark.


I'm glad to see others besides myself recognizing this. Companies are constantly sending cease-and-desists that have no merit in an attempt to scare people away from using their trademarks -- even if the person has a valid reason to do so.

Remember: while copyrights are designed to protect the holder from infringment, trademarks are intended to protect the consumer and to insure that the customer knows the true source of the goods they buy.

Trademarks aren't intended to make it illegal to speak a company's name or show their product in a film or other creative work.

[David Jimerson]

There was actually a case (and this is a digression) where a court ruled that when consumers want to play Monopoly, they don't care if it's from Parker Brothers or whoever, so PB's claims against a counterfeiter were dismissed.

The appeals court laughed that back to the schoolyard.

[Beat Takeshi]

Hmmmm "5B" (http://www.puffinfilms.com/FILMS_5B.html) has a Ouija board in it

[GenJerDan]

Shhhhhh..... :)

[MalcolmOng]

Well...so far this thread seems to have an equal number of people who say it is legal or illegal.... Basically I'm thinking of having the characters having a conversation over a game of tabletop Warhammer (basically, think of monopoly...you can substitute it with monopoly if you want - the concept is the same). There may be a couple of shots of the characters rooms, where i intend to dress it with lots of posters of Warhammer....But this is basically just part of the character, rather than a crucial plot point....Any input on this?

[bosindy]

At this point, you should go seek the advice of an attorney. You can't make a decision like this from just what people tell you on line. Your question above shows that you are misinterpreting a few things already said on this thread.:)

Also, pick up a book called "Clearance and Copyright" by Michael C Donaldson. all the basics are there if you really take the time to read it. He would also say though that your fact may be different than the cases decided so if complex, you should go see your own attorney.

[RokMartian]

Well, if the name "warhammer" is going to be necessary to use it in the film, I would be wary - I don't think the name Warhammer has such a critical mass that you have to use that name -- can you call it something else like "Battlehammer" ,"Police-Action Hammer" Acts-of-AgressionHammer ?
:)

[GenJerDan]

There may be a couple of shots of the characters rooms, where i intend to dress it with lots of posters of Warhammer....

And that's what'll get ya, if they feel so inclined. Assuming the posters are more artful than stark white with "Warhammer" printed across the middle, you're into copyright areas, not trade mark.

Contaact them, tell them who you are and what you're doing, and ask permission.

[sean90291]

Your statement is 100% incorrect legally :smile:, but this can be your opinion. The film you speak of had issues with book covers and paintings which you do need to clear. There is no such thing as clearing a trademark.

I am a strong advocate for copyright protection and have always said clear it with issues of copyrighted material. People get confused with trademarks and that is why speaking to an attorney is a good idea. The Ouija proves the need to have your specific facts looked at. Anyone putting money into a film should always have an attorney help them create a clean chain of title to the film.

I'm an intellectual property lawyer by training. This ain't legal advice, but I don't think my facts are wrong on this one. Trademarks can be cleared by getting approval of the mark's owner in writing. Ergo, the trademark is "cleared" for use in your film. A Coke can is a trademarked image. And a Ouija board may or may not be. Copyright may also be an issue in showing a Ouija board if there is original art included in the design (even if it's not trademarked images).

In the end, any brands, logos and art must be cleared to give assurance to distributors. There is no room for "grey areas" because the distributor doesn't want the hassles of lawsuits.

[GenJerDan]

Yep.

It's got nothing to do with the law itself. It's distributers knowing nothing about the law.