General Is it allowed to show brands in an indy? without permission

[Francesco Dal Bosco]

I'm reading the word LAW over and over in this thread. But laws are not always fair. What about discriminatory racial laws in South Africa, in force not so long ago, for example? They were LAWS but somebody has changed them because they were not right laws. Laws are not unchangeable principles. Ask Emerson, ask Thoreau. Near the beginning of this thread there is a post from a sweden guy where you can read about some related copyright laws in Sweden. It's a good example, in my opinion, of well balanced laws in this matter, showing a dignified sense of what "public space" should mean (a sense which is almost gone in many other countries). As a filmaker I am with Lawrence Lessig (Creative Commons) who is fighting a very long and difficult battle
for a more democratic an open culture circulation.

 

[jonE5]

Always, ALWAYS do not show. More than likely you wont have a problem, BUT, if your film blows up and gets a huge amount of attention you may not be able to take it to the next level.

My professor made a film a few years ago, won several awards. She was approached by a few studios to buy the short, but they forgot to scrub someone with a Reebok shirt in it. They approached reebok but got an answer of absolutely NOT. (the film subject had something to do with child molestation).

So, do yourself a favor and scrub as much as you can. (or tilt logos away from the camera)

 

[keenast]

Me thinks with all those 'wisdoms' .... the baby drowned in the bath tub a long time ago.

Generally there's too much fear. If a logo a brand or whatever is part of the popular culture and not 'featured or defamed', go ahead and use it. Don't listen to a lawyer for crying out loud - they make money out of making your life very complicated. We're not talking 'Hollywood' production' here, right.
So why not keep things in perspective! I've worked on too many movies where the art department in perverted self-censorial mode tapes over car brands and other stupidities.

Can I have a link that proves that anybody has been sued (and lost) by showing the Hollywood sign in the innocent background? Ahh, I see, everybody and his lawyer starts googling like hell to find some ;-)

To the one who actually asked the question in the beginning: Shoot, create, write, learn....to your hearts content. Do not worry. There are issues when you're crossing over to the commercial side, until then....don't worry!

PS. I'm not a lawyer and I'm glad I ain't. I'm also not quoting goggle's or other self proclaimed wisdoms. But for sure, the more afraid you are and the more right's you give up (just for safety, right) the less you and me are going to have.

Enjoy!

 

[smelni]

my 2 cents - I am not a lawyer and you shouldnt take my advice because I am not a lawyer but I have extensively researched this

- music - never ever ever can you use uncleared music unless in the public domain. Period.

- brands, trademarks etc. You CAN always use brands, logos etc in your video. You can be sued if you defame or if they dont like how you used it BUT that is not the same as not having the legal right to use it - the law has been fairly clear in this area for awhile now.

- Art, artistic architecture etc. - you cannot use it ever without being cleared. Not even a corner, a small part etc. So posters, statues etc - do not use them without clearance.

- Buildings - you can always use a public view of a building

There are of course got ya examples that happen all the time that you need to be aware. Hollywood sign that barry brought up is a perfect example that seems ok but is actually a piece of art - just like "happy birthday" seems like a fair use song but isnt. But in broad strokes and based on a lot of my own research the above it true.

One note about brands and trademarks - if you are worried about showing a brand (and you shouldnt be) you can simply obscure a small part of the brand with another item, a persons hand, turning it slightly from camera. It is only the trademark if shown in its entirety.

One other note about trademarks. Usually you want to avoid them because of where your project might end up. if you shoot a pepsi can but want to air it on a network with a broad ad campaign with coke - they will not want to show that shot due to the conflict. So very often it is good practice to obscure brands, but not for legal reasons.

 

[Erik Olson]

Copyright applies to the music, the brands and associated logos fall squarely under trademark law.

Trademark law has specific language regarding fair use (as in parody, non-commercial and review situations); dilution or blurring of a trademark (commercial use of an identical or visually similar logo, tagline); using a given product on-screen for its "intended use" (e.g., a character drinks a Coke; drives a BMW) without disparaging the brand.

H.R. 683 speaks specifically to the question of dilution of a trademark. The bill is here: http://www.govtrack.us/congress/billtext.xpd?bill=h109-683

A good place to start is with an entertainment attorney specializing in licenses or a product integration firm. Some other things to consider. Networks and distributing studios are more likely to be averse to you unnecessarily including brands than the TM / SM holders. The reason for this is lost revenue. If the marketing department doesn't strike the integration deal themselves before the cameras roll, it is highly unlikely that a licensing agreement will be struck - and that means lost money. Furthermore, networks (national) will often pass up integration / placement deals unless the brand is also willing to purchase commercial units in and out of the resulting program's schedule.

Trademark holders are more likely to provide free product to a filmmaker, or pay for the right to have their brand included than they are to sue a filmmaker for placement that falls within spirit of trademark law. But the time to pursue placement / integration is always before you shoot.

I'm not an attorney. My suggestions are based on firsthand conversations I've had with entertainment counsel and cable networks (including all DCI networks) regarding their policy on placement and integration.

 

[davebonawits]

I'd love to hear more about the legal battle concerning Frank's beer preference in Blue Velvet. Did Heinkeken and Pabst both approve the content?

 

[Barry_Green]

I'm reading the word LAW over and over in this thread. But laws are not always fair.

Agreed, many laws are not fair. We haven't been discussing that, we've just been discussing what the law IS, not whether it's fair or "right".

Every citizen has the right to petition their representatives to get laws changed. Disney famously did, by getting the copyright laws changed to continue to protect Mickey Mouse, who would otherwise now be in the public domain.

But the point remains -- as long as the law is what it is, the filmmaker should know what the law is. Violating the law can bring consequences, and it would be best for the filmmaker to know what those consequences are, so they can balance for themselves whether the risk is worth it.

 

[Barry_Green]

Randomly my friend just got a ticket for a 70 in a 65 and the reason the officer gave was that the freeway was going through a turn and she could have killed a duck or something. Yes. A duck.

Ben, that is definitely the post of the week. :thumbsup:

 

[stip]

Randomly my friend just got a ticket for a 70 in a 65 and the reason the officer gave was that the freeway was going through a turn and she could have killed a duck or something. Yes. A duck.

A duck with grapes?

 

[Ben_B]

Ben, that is definitely the post of the week. :thumbsup:

Thanks

I'd love to hear more about the legal battle concerning Frank's beer preference in Blue Velvet. Did Heinkeken and Pabst both approve the content?

That is probably the most quoted line among everyone I know...so great. To be very Jeffery kept talking about how great Heineken was earlier in the film.

Frank is perhaps the scariest movie villain of all time.

 

[jghenderson]

This is a great post. Copyright is something that has always confused me and I actually have a question regarding a short film I will be shooting in the next month or so.

In the script, I wrote in that the character would pour himself a bowl of raisin bran. The character does not like raisin bran so in the short he would be picking out the raisins. Him not liking the cereal is important to me, but to be on the safe side should I just not show the raisin bran box? I guess I could see them being a bit ticked off that I am basically saying their cereal sucks, though to be honest I doubt anyone of consequence that works for them would ever see my short.

 

[MaxThomas]

This is a great post. Copyright is something that has always confused me and I actually have a question regarding a short film I will be shooting in the next month or so.

In the script, I wrote in that the character would pour himself a bowl of raisin bran. The character does not like raisin bran so in the short he would be picking out the raisins. Him not liking the cereal is important to me, but to be on the safe side should I just not show the raisin bran box? I guess I could see them being a bit ticked off that I am basically saying their cereal sucks, though to be honest I doubt anyone of consequence that works for them would ever see my short.

That one's easy, just come up with a fake brand of Raisin Bran. Nobody owns a trademark on Raisin Bran itself, only "Kellogg's Raisin Bran," "Post Raisin Bran," etc.

From wikipedia:

The name "Raisin Bran" was at one time trademarked, but widespread use of the term to refer to any bran-and-raisin cereal caused it to become genericized, so that it can no longer be subject to trademark protections.

http://en.wikipedia.org/wiki/Raisin_Bran

(Assuming wikipedia is to be trusted here, but it makes sense)

Edit: Here's a much better source. A book titled "Patent, copyright & trademark" cites it as an example of a genericized term, read the excerpt in Google Books.

 

[morgan_moore]

There has been no mention in this thread of the phrase

'significant portion of the image'

It is my guess (and I studied this a decade ago)

that that phrase is important

and basically defined by the question

if this XXX was swapped out of the image would the image still communicate its core message

result I imagine..

yes you can film a street scene with copyrighted items that are not a significant portion of the image

a toyota drove past - would the plot have changed if a mazda drove past - no - no permission required
Gran Torino - would the plot have changed if the car had been swapped for a mazda - yes - yes permission required

Judges make judgements - often they are sensible

S

 

[Barry_Green]

That concept is what I've been referring to as "incidental use."

 

[NoahK]

Wow- did someone actually say laws aren't fair? Welcome to the United States and gov't in general my friend. Laws are rules you get into trouble or lose money when you break. They have nothing to do with what's fair.

Noah

 

[Ben_B]

Was just rewatching Logorama....uses tons of corporate logos, some of which are used in a negative light (pringles man is a misogynist, ronald mcdonald is a psychopathic criminal, mr. clean is flamboyantly homosexual, big boy and haribo boy are dennis the menaceesque....) All logos were used in the film WITHOUT PERMISSION.

But that film didn't go anywhere and wasn't high profile so I guess it was ok...wait...what? It won an Oscar? Oh. Ok.

 

[Burritoclock]

I believe that would fall under parody... which is different than say, having a pedophile that drinks coke (logo forward) as he stalks children in a serious movie.

 

[Ben_B]

I believe that would fall under parody... which is different than say, having a pedophile that drinks coke (logo forward) as he stalks children in a serious movie.

How about a psycopathic killer in a serious movie who decries Heineken while professing his love for Pabst Blue Ribbon?

 

[davidpula]

Well how about this.

A couple weeks ago Family Guy aired an episode where Stewie and Brian were trapped in a bank vault and Stewie exclaimed that he had bought a Thom Browne sweater for thousands of dollars and needed to get out to return it. He spoke of this sweater throughout the show. Google "Thom Browne" if you have not heard of his line.



I am an acquaintance of Thom Browne's. I ran into him today and asked him about the show. Whether he had been asked permission to have his name and product be portrayed in the show.

He told me he had no idea about it until after the show had aired---until someone told him about it---and that it is NOT AN INFRINGEMENT OF COPYRIGHT. I asked him if it was an an infringement of copyright. He said no. It's fine in this sort of portrayal.

There are details of legalities which are not black and white to us laymen in these areas which we may not be familiar with unless we are entertainment industry lawyers.

A MAJOR TV SHOW SPOKE OF A DESIGNER AND HE DIDN'T KNOW OF IT. AND HE TOLD ME TODAY IT IS OK.

I don't know if every copyrighted name/company works or feels the same way about their name being depicted. But Stewie spoke of a Thom Browne sweater on Family Guy, and actually paraded this sweater on the show. THOM BROWNE HIMSELF had not known about it until after the airing of the episode; I talked with him about it today, and he brushed it off like a piece of lint.


THIS IS A MARGINAL BUT TO SOME PEOPLE (indie people like us) VERY PERTINENT ISSUE. IT IS NOT BLACK OR WHITE. UNLESS YOU ARE AN EXPERT ON COPYRIGHT I URGE YOU NOT COMMENT ON THIS ISSUE WITH CONFIDENCE, AS SOME HAVE. Frightening unwitting people about the matter without specific, informed, and detailed information is not fair.

Is it okay if someone comes breaking into your house, as long as they're a small, no-budget thief?

Um, no.

So, okay, here's the deal: if you are taking someone else's property, you had better have their permission. Whether it's music, artwork, a trademark, a service mark, any copyrighted material, it doesn't matter.

That concept is what I've been referring to as "incidental use."

How many millions of Youtube videos are there with all sorts of copyrighted material?



Mr Green, I have bought your DVD's and have learned things I otherwise may never have discovered. I respect your opinions and observations and critiques maybe more than anyone else's. I eagerly read all of your comments. I look forward to any of your future writings.


However, comparing a penniless young (or geriatric) filmmaker inadvertently (or not) depicting a Coke can in their video or reel, to breaking into a person's home, is not reasonable.



Again-----this marginal, subworld of no-budget filmmakers would be impoverished of a substantial amount of knowledge if it weren't for you, Mr Green. I need to make this clear. You have, I am confident, commented on posts where I was unclear on certain subjects, and taken your time to offer your help.

I read a comment recently on here where a user called "snp" disparagingly spoke of you, and I in no way intend to do the same. I simply want to make clear to the uninformed public what I have learned.



With all due respect,

David

 

[Barry_Green]

A couple weeks ago Family Guy aired an episode where Stewie and Brian were trapped in a bank vault and Stewie exclaimed that he had bought a Thom Browne sweater for thousands of dollars and needed to get out to return it.

But -- this isn't the same thing at all. First of all, Family Guy is an animated series, so any depiction of a logo or whatever is not going to be a usage of the original, it's going to be a charicature. Secondly, you can talk ABOUT anyone's product, all you want. That's never been in dispute. The question was whether you can take someone's product and show it without their permission.

and that it is NOT AN INFRINGEMENT OF COPYRIGHT. I asked him if it was an an infringement of copyright. He said no. It's fine in this sort of portrayal.

Of course it isn't an infringement of copyright. Nothing about what you described would have anything to do with copyright law.

A MAJOR TV SHOW SPOKE OF A DESIGNER AND HE DIDN'T KNOW OF IT. AND HE TOLD ME TODAY IT IS OK.

Of course it is. What about it could possibly be illegal?

We've been talking about using copyrighted artwork, which is protected under copyright. A sweater isn't a copyrightable item, so it by default wouldn't fall under copyright. Furthermore, an animated representation of an item by default isn't going to be a copyright infringement. It might get close to trademark infringement, but not copyright.

THIS IS A MARGINAL BUT TO SOME PEOPLE (indie people like us) VERY PERTINENT ISSUE. IT IS NOT BLACK OR WHITE. UNLESS YOU ARE AN EXPERT ON COPYRIGHT I URGE YOU NOT COMMENT ON THIS ISSUE WITH CONFIDENCE, AS SOME HAVE. Frightening unwitting people about the matter without specific, informed, and detailed information is not fair.

Haven't we already said that? The question is what the law is. The law is what the law is. As to whether anyone will care, that's a whole different matter.

How many millions of Youtube videos are there with all sorts of copyrighted material?

Millions and millions. And every time the copyright owner complains, youtube removes those videos.

However, comparing a penniless young (or geriatric) filmmaker inadvertently (or not) depicting a Coke can in their video or reel, to breaking into a person's home, is not reasonable.

It is reasonable if you consider that one is breaking the law, and the other is breaking the law. I am using an allegory to drive home the point. I am not saying that they are comparable levels of breaking the law, but I am pointing out that if you're asking what the law is, the law is what it is, and there aren't exceptions given as to whether you were penniless or not.

Furthermore, inadvertently should fall under the incidental use clause I was talking about. Where someone runs into issues is more likely when they purposely and deliberately violate the copyright law. And that, yes, is more appropriate for comparison to someone purposely entering someone else's house, or taking their wallet, or ... well, look -- it all comes down to property rights. You either have the right to take and use someone else's property without their permission, or you don't. Typically US law says you don't.

But even then, there are exceptions. See squatter's rights, or fair use in copyright, or the very concept of something falling into the public domain...

I simply want to make clear to the uninformed public what I have learned.

No problem at all, we're all about sharing information here. That's really the point of this site. And we do crack down on misinformation. I prefaced my comments here by saying i am not a lawyer, and that what I have laid out here is my understanding of how it works. And there are all sorts of exceptions to copyright law, and the Disney thing that Ben_B pointed out is an excellent example. However, it's also very misleading -- because that film, while technically within the provision of copyright law, seems to make people think "well, if they can use Disney clips, then so can I" and that just isn't the case. Not unless you're doing a journalistic/teaching documentary using very tiny clips, etc. For 95% of the indie filmmakers here on this site, that just isn't relevant.

There's an old saying that goes "there's the way things is, and the way things out to be." I'm not talking about the way things ought to be. I'm just explaining the state of the "way things is", as I understand them.