Question on Copyright/Trademark Infringement

[Scott Lovejoy]

Hey all,

A quick question as I read over a script for MonsterFest:

Part A) Does is break Copyright/Trademark, (and therefore is it illegal in terms of MonsterFest) to have someone wear a band t-shirt in a film?

Part B) If it is illegal, can a band be mentioned by name, if no pictures are used?

Thanks.

[Chris_Keaton]

It's only illegal if you get caught. But generally, unless you are naming them and they have more than a passing mention no one will complain. The only other thing would be if they object to the film they'll ask for it to be blurred. At least that's how I understand it.

[DJDecay]

Hey all,

A quick question as I read over a script for MonsterFest:

Part A) Does is break Copyright/Trademark, (and therefore is it illegal in terms of MonsterFest) to have someone wear a band t-shirt in a film?

Part B) If it is illegal, can a band be mentioned by name, if no pictures are used?

Thanks.

It's not Illegal. And it has nothing to do with Copyright. But it needs to be "Cleared" - Fair use doctrine does not apply in these cases and should be avoided. This is why a fair amount of gaffers tape goes onto logos sometimes.

If you photograph (film) a Logo or a Trademark - Such as a can of beer, Diesel t-shirt logo etc, you have two options:

1) Call up the company that owns the trademark and ask them for clearance.
They may need to see the "context" in which their trademarked product is displayed. Based on the Quality of Display and Context in which its used, they may issue you a License to use their trademark/service mark in the film. If they decline however, you'll have to use motion tracking to remove it from the shot.

2) Make up your own brand of "what-ever-product" and use that.

I don't know what specific rule applies to "speaking" the trademark in a line of dialog. But anything visible must be cleared with the owners. They have IPR (Intellecutal Property) staff attorneys that are more than willing to send you the needed paperwork and work with you. I've done this with Dell, Inc. it's a fairly easy process with about 3 emails and a fax.

If i did not read your post correctly and you meant "band" not "brand", then collectively their name/music/image/likeness is most likely property of THE BIG SIX and they license this stuff out for money and frown upon and actively peruse. - esp if its something that's not a word like "Metallica". Context for it would be "Metallica Concert" or "The New Metallica Album" so even if its a band with a name like Blur which is a word you may have issues. I would just make something up like most movies do that cannot be bothered with clearance of that sort. A Band Logo T-Shirt will cost you about $10,000 in licensing if they are signed to any subsidiary of the big six.

Obviously it depends on the context and for other things (like say beauty products) the quality of the photography displaying the trademark in question.

P.S. I'm not a lawyer, this is not legal advice.

[bosindy]

It's not Illegal. And it has nothing to do with Copyright. But it needs to be "Cleared" - Fair use doctrine does not apply in these cases and should be avoided. This is why a fair amount of gaffers tape goes onto logos sometimes.

If you photograph (film) a Logo or a Trademark - Such as a can of beer, Diesel t-shirt logo etc, you have two options:

1) Call up the company that owns the trademark and ask them for clearance.
They may need to see the "context" in which their trademarked product is displayed. Based on the Quality of Display and Context in which its used, they may issue you a License to use their trademark/service mark in the film. If they decline however, you'll have to use motion tracking to remove it from the shot.

.

this is not correct. You are free to use trademarks (generally) as long as you use the product for its intended purposes and don't commit trade libel by disparaging the product. You do not need to "clear" trademarks.

If there is art on the t-shirt you then likely would have to clear that or violate copyright.

and yes, you can mention the bands name

[cinealma]

James has it right. The classic example of what NOT to do: Don't have your serial killer enjoying a Big Mac and bottle of Pepsi before he goes and hacks some people up.

[Michael Anthony Horrigan]

This issue really confuses me? What about the short with the guy who destroys all of his Star Wars toys? If that's allowed shouldn't certain other things be allowed as well?

Nothing against the movie I'm talking about, it was hilarious.

I've seen Kellogg's cereal boxes, booze with brand labels, etc... in these fests.
What's not allowed?

MAH

[TMerry]

"Why take a chance"? is the question. If your film wins awards and is included in
a DVD distribution for any kind of $ you're hosed.

In one of my first film there was a Coke can in the background that
we had forgotten to turn around. I contacted them through the proper
chanels. They asked me submit the usage, the time, the context of the
usage, the screenplay marked where the scene using their product was
etc. etc. etc. It went on for several weeks of Paper faxing back and
forth.... DENIED!

We had to add a filter to the scene that took the product logo
out of focus.

If you are making what you believe to be a quality film that has some type of
potential , It's just not worth the hassle IMHO.

P.S.
Of course, for the right price you could have a VFX artist not only remove
the band logo, but make it into something even cooler ;-)

[Michael Anthony Horrigan]

Well, addressing the first post.... nobody here (that I know of) has ever been disqualified for the odd logo or band reference.

There's always a first time! :)

[Marlon Ladd]

If we're talking about legality, then I'm sure there could be hundreds and hundreds of issues, but I look at this situation in more simple terms. I think as long as you're not promoting a product, then you're fine. If something just so happens to be in the scene, then it's there. The only time you will run into an issue (I think), for example, is if a lead character in a film has on a t-shirt with a logo all throughout a movie and it can be recognized as promotion.

When filming something with a video camera for instance, there are things that are legal and things that aren't. Take celebrities. They are videotaped all the time in public. It's because they are in public and in public you have no "expectation of privacy," so it is legal. It's a different story if somebody videotapes you in the privacy of your own home without your permission. We can't expect for people (especially indies) making films to wear all no name and logoless clothes and drink logoless drinks. That would be virtually impossible. That's an impossible expectation, like expecting to have privacy in public. Every piece of clothing you wear is made by somebody, so who could or would ever try and clear everything from your socks to your watch, through a company.

Theoretically, I guess you could look at it another way too. I bought this product and I own it. It doesn't say that I bought it, but I can only wear it on Sunday or I can wear it as long as it doesn't appear in any video of any kind (home video, reality show, film, surveillance camera footage). If that was the case, I would've just rented the shirt. LOL. I'm going a little off the deep end, but I hope you see my point.

[bosindy]

"Why take a chance"? is the question. If your film wins awards and is included in
a DVD distribution for any kind of $ you're hosed.

In one of my first film there was a Coke can in the background that
we had forgotten to turn around. I contacted them through the proper
chanels. They asked me submit the usage, the time, the context of the
usage, the screenplay marked where the scene using their product was
etc. etc. etc. It went on for several weeks of Paper faxing back and
forth.... DENIED!

We had to add a filter to the scene that took the product logo
out of focus.

If you are making what you believe to be a quality film that has some type of
potential , It's just not worth the hassle IMHO.

P.S.
Of course, for the right price you could have a VFX artist not only remove
the band logo, but make it into something even cooler ;-)

I don't know if you are including all the facts to this but given what you stated you do not have to ask permission to have a coke logo in the background in a scene. The law is pretty clear on this.

[Dick Campbell]

just thought I'd throw this in. There was an ESPN commercial running this past weekend, and it was a view of the front of a newsstand, with all these headline popping. as they scanned rapidly around, the mag titles looked like Time, Cosmo, etc., but I clicked back through it, and every thing visible was faked up, fake logos partially obscured to look like rela logos, titles in the same font but differnt words. somebody went to a lot ot trouble to avoid copyright infringement.

(I know, I know, to much time on my hands).

[bosindy]

That is not copyright, unless there is art on the cover of the magazine. Trademarks have nothing to do with copyright. They are used for a commercial purpose and not subject to copyright like creative works are. you will see logo's blurred out on tv, not because of copyright but bc of advertising agreements that the channel has in place that might conflict or bc they don't want to diminish the value of the product placement on their channel by giving it away for free.

[DJDecay]

this is not correct. You are free to use trademarks (generally) as long as you use the product for its intended purposes and don't commit trade libel by disparaging the product. You do not need to "clear" trademarks.

If there is art on the t-shirt you then likely would have to clear that or violate copyright.

and yes, you can mention the bands name

I agree. But its better to be paranoid than pay for it later, when a motion picture is a "commercial" work.

Ultimately yes, trade libel is the proper definition, and so long as you're not committing this trade libel. There are several cases that established a precedent for trade libel. But ultimately the definition/interpretation of trade libel is up to the trademark owner and the courts, and their ability to articulate this trade libel - and while the court decides whether or not it isnt the (tm) owner can file an injuction to prohibit the film/work from being exhibited.

In the case of loss fest, Lucasfilm did not file such an injuction and did not think it was trade-libel even though the character is a star wars "nerd", which could be interpreted in a pejorative context, esp. since the main character is ashamed of his toy collection.

So in the case of say - "Supersize Me" it was indeed trade libel. It was a commercial work. I don't know how they worked that one out.

In other cases where distributors, studios and networks get slapped with lawsuits it all just depends.

It seems that the IPR lawyers at whatever brand may or may not for one or another reason contest or object, or not even have it enter into the scope of things.

But I'd bet money, that in a horror film having your victim or killer wear a metallica t-shirt and buying metallica tickets - using it as a key plot point will get interpreted as trade libel no matter what.

Typically everything in a film is cleared by the distributors. Even in documentaries. There was a famous case involving FOX and Simpsons in BG of a doco.

Unfortunately or fortunately we live in a world of perpetual copyright and perpetual patents. So film makers try to be real careful, so they would not have to pay for VFX/Rotoscoping to clean up a logo here or there. (See Crank 2 - Adult Actors Strike Scene and the missing Oprah Poster ).

And the most present argument to "clear" everything is:

Lets say the lead character of your film chews bazooka gum, he is a hero, no big deal. - Lets say the actor portaying this hero - gets into some public trouble a bit later after the film finishes production. The bazooka brand might decide that associating bad press with their product is a problem. If you had cleared the brand with them prior everything is cool and on paper. If not, they may opt to say trade libel based on who plays the character in the film, rather than who the character is.

This leap has happened before in different directions, see Tommy Chongs sentencing in Calf.

This stuff gets so out of hand that I see casting notices for background that explicitly state "no logos", where its almost guaranteed that they will be on the shallow DOF and out of focus. I guess it keeps the Props department employed which is good. (See Jercho TV series, food train full of brand x food).


Basically even though one may think that trade libel is not there while shooting, there may be (and sometimes over time, and etc..)

So clearing is not optional if your project has any chance for commercial success and mass exhibition.
The only choice is whether you clear it before you shoot, or you or someone clears it after (like lawyers from Lionsgate for example.)

Another example is "NYPD" - apparently even through things that are created by the government, are property of the people, so the CIA logo can be used in a film w/o serious clearance, after 9/11 a lot of knock-off baseball caps appeared with the letters NYPD, their offical logo diamond "Police Department City of New York" is public domain, but a trademark was granted for the four letter combination. Every film that included police uniforms had to clear the NYPD letters logo.

I don't know what they did for clearing the lines in Jennfier's Body where the two girls refer to each other as feminine hygene products, but I bet Mr. Mullen might be able to comment.

[DJDecay]

just thought I'd throw this in. There was an ESPN commercial running this past weekend, and it was a view of the front of a newsstand, with all these headline popping. as they scanned rapidly around, the mag titles looked like Time, Cosmo, etc., but I clicked back through it, and every thing visible was faked up, fake logos partially obscured to look like rela logos, titles in the same font but differnt words. somebody went to a lot ot trouble to avoid copyright infringement.

(I know, I know, to much time on my hands).

Correct, and especially commercials or promos. Magazine logos are Service Marks or Trademarks, when used to propel narrative in another ad campaign, it would get the advertising firm into hot water.

[DJDecay]

I bought this product and I own it. It doesn't say that I bought it, but I can only wear it on Sunday or I can wear it as long as it doesn't appear in any video of any kind (home video, reality show, film, surveillance camera footage). If that was the case, I would've just rented the shirt. LOL. I'm going a little off the deep end, but I hope you see my point.

Actually if you look closer, you are renting and the more shrink wrap licensing is allowed to exist the more of the virtual world will transfer into physical.

Next thing you know, your t-shirt will ship with a single user license to use the product, non transferable, without warranty of fitness etc...

You don't own a copy of a Movie on DVD. You own a license to view this Movie (that happens to be on a silver DVD disk.) They wish for you not to sell it, if you tire of owning it since you're selling a silver disk, not the license to the content on it.

I don't know how things are allowed to get this out-of-hand but they did.:violin:

[Chamber005]

Actually if you look closer, you are renting and the more shrink wrap licensing is allowed to exist the more of the virtual world will transfer into physical.

Next thing you know, your t-shirt will ship with a single user license to use the product, non transferable, without warranty of fitness etc...

You don't own a copy of a Movie on DVD. You own a license to view this Movie (that happens to be on a silver DVD disk.) They wish for you not to sell it, if you tire of owning it since you're selling a silver disk, not the license to the content on it.

I don't know how things are allowed to get this out-of-hand but they did.:violin:

I agree. I think it all started with middle men wanting a cut of something. I mean, look at organizations like ASCAP -- the opitome of a company that does nothing for no one, just pushes papers and takes a cut. At least paper pushers like SAG are a union. All of these bizarre multi-layered laws exist so that someone who had nothing creatively to do with a product can still suck a little money out of it.

I think this frustrates me most in regards to music. There's absolutely no reason that any music at any time shouldn't be able to be used in a production so long as profits are distributed accordingly. All of the red tape and massive upfront fees just degrade the entire notion of art existing as a collaberative effort. Too many paper pushers between artsists asking for a cut.

Ack! Rant, but ack!

[DJDecay]

I agree. I think it all started with middle men wanting a cut of something. I mean, look at organizations like ASCAP -- the opitome of a company that does nothing for no one, just pushes papers and takes a cut. At least paper pushers like SAG are a union. All of these bizarre multi-layered laws exist so that someone who had nothing creatively to do with a product can still suck a little money out of it.

I think this frustrates me most in regards to music. There's absolutely no reason that any music at any time shouldn't be able to be used in a production so long as profits are distributed accordingly. All of the red tape and massive upfront fees just degrade the entire notion of art existing as a collaberative effort. Too many paper pushers between artsists asking for a cut.

Ack! Rant, but ack!

Don't even get me started on music. FM Radio pays a tiny stipend 0.001 cents per mass play to the artists themselves for the playout, while a label just enjoys the free promotion of the song when played on public radio. (As stipulated)

Internet Radio pays 75 cents to RIAA and Label per listener per song directly.

Film has to pay mechanical (reproduction) to the Label and only a tinier stipend to the artist. Though in theory, the Label should enjoy free promotion when music is included in a film. Especially not in soundtrack but diagetic (playing in a car, or alarm clock) but nay.

And we'll just forget the fact that Warner/Chappel and Warner Bros Pictures are theoretically the same company, so they can pay each-other all they like.

They just don't like for you to use their music. Not them. You.

[Ted Spencer]

Internet Radio pays 75 cents to RIAA and Label per listener per song directly.

Come again? $.75 per listener?