Logo in the shot. Ok? Indie Film

S

Sneakle

Well-known member
Not sure where this should be posted but;

Shot a scene in a small airplane today where the headphones have a clearly visible logo/name. I usually think to block out or tape over logos but I missed it. My thought is, would any product vendor really mind their product showing up in a shot as long as it's not anything that would reflect badly on their company? Companies sometimes actually pay for product placement. Do you know of any instances where you got into trouble for a logo visible in your shot?
 
Sneakle said:
Not sure where this should be posted but;

Shot a scene in a small airplane today where the headphones have a clearly visible logo/name. I usually think to block out or tape over logos but I missed it. My thought is, would any product vendor really mind their product showing up in a shot as long as it's not anything that would reflect badly on their company? Companies sometimes actually pay for product placement. Do you know of any instances where you got into trouble for a logo visible in your shot?
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First off... while 'companies' do pay for their brands and logos being used, they also charge for such use, and whether it is pay for use, or being paid for use, that is taken care of before shooting...

However, in your case, as you describe it, it sounds more like a 'fair use' issue. That is if the headphones are just something the actor is 'using', and it doesn't seem like you are focusing on Brand X headphones, it is the same class of use as if you capture the aircraft manufacturer's 'name' while shooting, or had your camera panned over to the airport parking lot, and a couple of BMW, Mercedes, Fords, were 'identifiable' in the shot.

But as always, these sorts of questions are for lawyers to answer... and bux to be paid just for hearing such answers...
 
j1clark@ucsd.edu said:
First off... while 'companies' do pay for their brands and logos being used, they also charge for such use, and whether it is pay for use, or being paid for use, that is taken care of before shooting...

However, in your case, as you describe it, it sounds more like a 'fair use' issue. That is if the headphones are just something the actor is 'using', and it doesn't seem like you are focusing on Brand X headphones, it is the same class of use as if you capture the aircraft manufacturer's 'name' while shooting, or had your camera panned over to the airport parking lot, and a couple of BMW, Mercedes, Fords, were 'identifiable' in the shot.

But as always, these sorts of questions are for lawyers to answer... and bux to be paid just for hearing such answers...
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You're right, a company could make a fuss about it if they wanted; but my prepared response will be that we can change it in post to their competitor's brand.
>But as always, these sorts of questions are for lawyers to answer... and bux to be paid just for hearing such answers...
Well put jiclark.
 
I wouldn't sweat it too much. I doubt the headphone company will want to start a lawsuit against an indie production over something as minor as that.
 
Of course my indie flick will be the next Paranormal Activity, so as Warren Zevon said: Bring lawyers, guns and money.
the logo
logo.jpg
 
If they make a fuss they will NOT sue from the start. They will send a nastygram giving you the option of removing the logo (or not). Your lawyer will most likely tell you to ignore them.

Logos are not removed because it's illegal to show them, but because the company refused to pay for their appearance, or due to a marketing contract issues (like your lead actor has a contract with Bose).
 
You could just politely ask the company? So long as the headphones aren't given any negative connotations (e.g. worn by a guy who tortures kittens :) ) and you promise to give the company a nice thank you in the credits (hey, doesn't cost you anything) then they may be perfectly relaxed about it. Personally I'd rather know sooner than later if there is going to be a problem - depending on how long that scene is, blurring/replacing the logo probably won't be a quick job.
 
It may not even be a question of whether or not the owner of the logo would sue. Your distributor may reject your film outright if you can't provide proof of clearance.

clang's advice is good. Contact the company and ask for permission. If that route doesn't appeal to you, then consult a qualified attorney. Don't make legal decisions based on the opinions of relative strangers on an online forum.

Good luck!
 
I just saw this screen grab, just remove the logo in post, his headset is black in the first place. Typically something not cleared is turned into black in VFX, so you're almost golden. - No one is going to miss it, it does not add or remove any artistic value to that shot nor your narrative.

How many frames long is that shot?

I think it would be faster to take that logo out than discuss the implications of leaving it in.

But if you do feel like reading what I think about brand clearance (aside from the fact that I think it got out of hand lately.)
Here is a link.
http://www.dvxuser.com/V6/showthread.php?t=184740
 
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Sneakle said:
You're right, a company could make a fuss about it if they wanted; but my prepared response will be that we can change it in post to their competitor's brand.
>But as always, these sorts of questions are for lawyers to answer... and bux to be paid just for hearing such answers...
Well put jiclark.
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Not funny. This is the kind of attitude than can give filmmakers a bad rep. No one owes you the right to do whatever you want just because you're a filmmaker. If you had to ask about it now, you should have known to take care of it then. Manufacturers have the right to take care of their brand and profit from it.

Indie doesn't have to mean amateur.
Asking for forgiveness rather than permission is for kids.
 
jimpatro said:
Manufacturers have the right to take care of their brand and profit from it.
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And the law allows for 'fair use'. But many companies pay rather than fight for their rights. The consequence is that the rights, under law, are deluted.

This happens all the time in patent cases. A lawyer firm will buy up the patent assets of a defunct company, then send 'stand and deliver' mails to anyone they can find that 'may' be using the patented element. Often companies will pay, because the payment is cheaper than the lawyers to defend. This gives further credence to the claim of the patent holder, whether the company was infringing or not.

And needless to say, the original patent developers, the one's who should have gotten the benefits of their labors, are no where in the money chain, as many bankrupt companies are sold for 'pennies on the dollar'.
 
This is so different from a patent infringement case, it's not even worthy of making comparison. And even further removed from the scenario you describe.

I watched an online tutorial last night on how to do motion tracking with Adobe After Effects. The tutorial showed how to completely remove a sign from a street scene shot, replacing it with just a black square. Seems to me the best thing to do in this situation is try to find someone who can do that with this logo.

"It's easier to get forgiveness than permission" is just a saying. It's one of those things that sounds good, but really has no meaning. It's certainly no way to run a professional organization.

Do the right thing. Secure permission. If you can't get it, then edit out the logo. Be honest. Your personal and professional integrity are among your most important assets.
 
chapelgrovefilms said:
I watched an online tutorial last night on how to do motion tracking with Adobe After Effects. The tutorial showed how to completely remove a sign from a street scene shot, replacing it with just a black square. Seems to me the best thing to do in this situation is try to find someone who can do that with this logo.
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Correct, the fastest thing to do.

- Easiest thing to do is compositing to black.
- Harder thing to do is get clearance. (But also acceptable)
- Foolish thing to do is to wait for Brand X who did not sue when you monetized your film to be purchased by Brand Y that does.
 
DJDecay said:
- Foolish thing to do is to wait for Brand X who did not sue when you monetized your film to be purchased by Brand Y that does.
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Very important point!

Also, some filmmakers think, "They won't sue me, they'll sue the distributor." Which is why the distributor isn't going to take any chances either. And if something does slip by and the distributor gets sued, you know he's going to turn right around and sue YOU to recover his losses.

I'm always amazed to hear filmmakers say, "Let 'em sue me. They won't get much." They don't realize that if they lose the lawsuit, they can have all future earnings taken away to satisfy the settlement. That's a nasty business.

But more important to me is doing the right thing. Even if I was sure I could get away with it, I'd still want to do the right thing. It's just my moral DNA. That way I never have to worry about the 'what ifs'.

Do what's right. Don't do what's wrong. If you can't tell the difference, you've got bigger worries my friend.
 
Can you name just ONE logo-clearance lawsuit?

I'll help you. Here's a list of recent film-related permissions-clearing lawsuits. How many do you see for using a logo in a film? (Answer: None.)

Why?

FAIR USE.

http://www.publaw.com/fairusetrade.html

http://www.chillingeffects.org/trademark/faq.cgi#QID740

http://en.wikipedia.org/wiki/Fair_use_%28U.S._trademark_law%29

Generally, the use by an author of a trademark in a fictional work to describe or identify particular goods or services, such as "driving in my Ford", "eating a Hershey bar", "playing with my Beanie Baby" will not be considered an infringement as long as the use does not confuse the reader with respect to who actually owns the trademark. Trademark law also permits an author of a non-fiction work to include content that is favorable and/or critical of a trademark owner's products or services. In this type of work the author should only use the trademark to describe or identify the trademark owner's product or service and should be careful not to confuse the reader as to the actual provider of the trademark owner's products or services.

An author's use of a trademark for the above-referenced situations should be considered a non-confusing "nominative use" when it meets the following requirements: (1) the trademark owner's product or service must be one that is not readily identifiable without the use of the trademark; (2) the author only uses as much of the trademark as is reasonably necessary to identify the trademark owner's products or services; and (3) the author does nothing that would, in conjunction with the trademark, suggest to the reader sponsorship or endorsement by the trademark owner.

A trademark owner by choosing a descriptive term as its trademark must live with the result that an author remains free to write about or use the trademark in its "primary" or descriptive sense. Legal doctrine defines fair use of a trademark as the "reasonable and good faith use of a descriptive term that is another's trademark to describe rather than to identify the user's goods, services or business".
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Check out this article. Philip Morriss is PLEADING to Hollywood not to show its products in films. It's not threatening to sue, or banning the use of their trademarks -- because they CAN'T.

"We do not want our brands or brand imagery depicted in movies and television shows," reads an ad running this week in Variety, The Hollywood Reporter and other industry publications. "We appeal to, and encourage, those in the entertainment industry to eliminate depictions of our brands and brand imagery in their work."
...
Stanton Glantz, head of the Centre for Tobacco Control Research and Education at the University of California at San Francisco, pointed out that Philip Morris was not threatening Hollywood with any legal action, and that the appeal was essentially hollow.
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If anyone has the power to sue, Philip Morriss does.

I've already said it and I'll say it again: The only reason logos are blanked out are contractual (performer is under contract by a competing company to use only their products), artistic (director doesn't want any logos seen), or monetary (company didn't pay-up, so their logo was blanked or replaced with a competing company's logo). There is NO legal reason other than contractual.

Filmmaking is hard enough without making things up, so stop it with these stupid lawsuit scare threads.
 
First off, your point could be made without

SCREAMING

at us, okay?

Second, what you quoted referred to PRINT work. As in WRITING that "I was driving my Ford." This would be equivalent to a character in a movie SAYING "I was driving my Ford", which is completely different from SHOWING the Ford logo, which is a licensed trademark.

The fact that Philip Morris ran that ad rather than suing is NOT explicit proof that they CAN'T sue if they want to.

Best bet for anyone concerned about these matters -- ask a qualified attorney. Don't risk taking legal advice from non-legal people on a public forum. (Including me.) :)
 
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I would have used BLINK if they had it. :-)

Media is media whether it's print or video or psychic projections.

You didn't read the articles. I suggest you read them.

You don't need an a lawyer to tell you the obvious. All it takes (in this case) is reading skills.
 
Well... Phillip Morris is a bad example, they are on some sort of a P.R. campaign - they were the ones that made cigs ubiquitus in movies, now they want to take them out, but, they just cannot, the evil media corporations won't remove the marlboro brand from the silver screen. Lies damn lies.

Read the title of this film and tell me they did not clear it, let alone paid for it: http://www.imdb.com/title/tt0102005/

Oh and the main characters are not on a Harley the other one was an Icon for Phillip Morris.

QUOTE: "
The company says it has been moved by recent studies showing that smokinghttp://www.independent.co.uk/news/w...dont-use-our-cigarettes-in-films-424649.html# in movies is the number one factor prompting teenagers and young people to take up smoking. The adverts associate the company with a trademarked concept it calls "Youth Smoking Prevention".
Industry critics and anti-smoking advocates, however, think the initiative has a lot more to do with future lawsuit prevention than concern for the welfare of young Americans. Stanton Glantz, head of the Centre for Tobacco Control Research and Education at the University of California at San Francisco, pointed out that Philip Morris was not threatening Hollywood with any legal action, and that the appeal was essentially hollow."
 
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@pmark23: Here is a link from your list of lawsuits regarding a Coffee Can http://reporter.blogs.com/thresq/2009/04/watchmen-coffee-product-placement-lawsuit.html

Warner Bros. vs. Chock Full O' Nuts. - RE: Trade Libel, real logo not even in the film, (tm) infringement related to merchandising - a similar to the real logo is.

Quote: "In a new complaint filed in Virginia District Court, the maker of specialty coffees accuses Warner Bros., DC Comics, and the Organic Coffee Cartel of trademark infringement associated with a scene in "Watchmen" featuring superheroes serving coffee to recently-saved victims of a tenement fire. "

6a00d83451d69069e201156ff2767a970b-pi


Also See: Arrested Development vs. FOX
Fox vs. Al Franken
Some Real-Estate firm Suing "CSI" for god knows what.
Fox vs. Tribune (red-eye logo)

I guess the noise in the signal comes from all these studios trying to trademark and monetize all you see onscreen. Thereby legitimately violating someone else's trademark.
 
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@pmark23: Actually I now agree with you. After some exhaustive searching - Even though a dangerous case has set precedent on libel (including trade libel) in Nooan vs. Staples for the motion picture producers, the lack of lawsuits seems to be stemming from another pile of junk.

"Advertising Injury Insurance"

Apparently all these (tm) owners are dying to collect against an advertising injury policy under general liability. What the underwriters will do against the offending party(s) is for the future.

In 2004 fair use for trademaks was re-entered before the 9th circuit, their decision is the last non-precedent setting lawsuit in supreme court on "Fair Use".

Interesting piece of reading is this thing: http://www.bitlaw.com/source/15usc/ as in 2004 case - it went up against the 1st amendment.
And their notes on "innocent infringement".

According to the 15 USC SEC. 1125 under dilution i find only these exemptions:
Does using Marlboro in a motion picture constitute "non commercial use" - no clue.
---
The following shall not be actionable under this section:
(A)

Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. (B)

Noncommercial use of a mark. (C)

All forms of news reporting and news commentary.
​
 
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