Logo in the shot. Ok? Indie Film

[j1clark@ucsd.edu]

@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.

I can only imagine what 'advertizing injury' might be... in the case of the afformentioned use of a brand of coffee... Did Dr. Manhatten stir the freshly brewed, with trademarked logo clearly visible, coffee with his wiennie... and isn't that a trademark infringement in and of itself... shouldn't Oscar Meyer be jumping on the 'injury' bandwagon, as the good Dr.'s... ehhem... member could be construed to be 'whistle' shaped... or in any case 'blown'... by someone somewhere...

And heck... where does Dr. Manhatten's use of 'blue'... leave the Blue Man Group...

 

[DJDecay]

I found the original 4 count filing against Warner Brothers, DC Comics and OCC. And its more with them subletting and "trade dress" than a grossly similar product. - Weird stuff though.

http://www.scribd.com/doc/14104114/Complaint-Nite-Owl-Coffee

"Trade Dress Infringement" - "Trademark Violation" - "Dillusion" - "Unfair Competition"
Trial by Jury Demanded.

I think what made them angry is the OCC (tm) appearing in the film (par 24 or 26) on top of the Watchmen Can, which clearly in the graphic novel was modeled after Chock-Ful'O-Nuts.

 

[Ted Spencer]

I found the original 4 count filing against Warner Brothers, DC Comics and OCC. And its more with them subletting and "trade dress" than a grossly similar product. - Weird stuff though.

http://www.scribd.com/doc/14104114/Complaint-Nite-Owl-Coffee

"Trade Dress Infringement" - "Trademark Violation" - "Dillusion" - "Unfair Competition"
Trial by Jury Demanded.

I think what made them angry is the OCC (tm) appearing in the film (par 24 or 26) on top of the Watchmen Can, which clearly in the graphic novel was modeled after Chock-Ful'O-Nuts.

I'm no lawyer, but I read through the relevant parts of the case and it sure seems to me like a copyright violation. Like you said, they copied a Chock Full O' Nuts coffee can design except for the name/logo style where they substituted "Night Owl", which is another real coffee brand made by a different company. The rest of the can looks *almost exactly* like a Chock Full O' Nuts can, including the colors, shapes, text and the iconic checkerboard stripe logo. Very, very dumb, if you ask me, and I wouldn't be surprised if the filmmakers lost the case.

It seems to me it would have been one thing to simply include an actual Chock Full O' Nuts can, intact, in an innocuous context. But a Frankensteined version of it labeled with a different, real coffee company's brand name? Oy vey.

They might as well have been asking for it...

 

[DJDecay]

But its the fact that they decided to merchandise this coffee - with real coffee in the can (tm), that was the problem. Through the Organic Coffee Company or somesuch, that's how Warner and DC got into the lawsuit, by licensing this faux brand of coffee (as a tie in) to a real manufacturer, but not for having it in the film. This is why I'm leaning towards the opposite view (in general) - agreeing with 'pmark23' more.

But I would never just put a product in myself w/o clearance.

 

[Ted Spencer]

But its the fact that they decided to merchandise this coffee - with real coffee in the can (tm), that was the problem. Through the Organic Coffee Company or somesuch, that's how Warner and DC got into the lawsuit, by licensing this faux brand of coffee (as a tie in) to a real manufacturer, but not for having it in the film. This is why I'm leaning towards the opposite view (in general) - agreeing with 'pmark23' more.

But I would never just put a product in myself w/o clearance.

Ok...I thought OCC was an actual, preexisting coffee brand rather than one created after the fact to market the product.

So it's much worse, no?

 

[DJDecay]

PMARK23 is 100% right on this one. (Just one small detail - Don't Defame or Abuse the Product.)

Talked to two IPR lawyers today, said I had a debate about logo's and trademarks in this very forum.

They said as long as the logo is not used in any defamatory way (e.g. This product sucks...) you can go ahead and use it. Even if your serial killer is wearing the logo on a product. - But this does not apply to bands or band-names/band-logo's or other "creative" works. Just plain products. So a Bugs-Bunny shirt on your serial killer == Lawsuit. A GAP Shirt == No Lawsuit.

DISCLAIMER: I am not a lawyer, this is not legal advice. - They are lawyers, but they were not retained to advise you so if you do get sued, neither I, nor the two of them are liable for anything.

So yes your murdering psycho killer can like Yoohoo! or Bubblelicious. Just don't show how to kill people using "Drain-o" I guess (though they would prob appreciate it for all the safety concerns they have).

 

[clang]

Interesting - I'd have thought a GAP shirt on your serial killer might indeed lead to a lawsuit - I'm not saying GAP would win (or that the case would even get to court), but that's little comfort if you end up with a hundred thousand dollar legal bill

 

[DJDecay]

Interesting - I'd have thought a GAP shirt on your serial killer might indeed lead to a lawsuit - I'm not saying GAP would win (or that the case would even get to court), but that's little comfort if you end up with a hundred thousand dollar legal bill

Apparently only if the killer says GAP makes him want to KILL - GAP tells him to KILL - if he says he only wears GAP when murdering, that's cutting it close. Otherwise it's legit. So dress your serial killer in Rolex, GAP, Gucci or whatever, just don't call them the "Gucci" killer in your screenplay since he only kills women wearing Gucci or something.

But yes, just like with all the cases, the one that has the most money wins, someone could sue you into financial ruin just on the sheer amount of lawsuits they can file and maintain. But most of the time it would only make sense for a HUGE company to sue a HUGE studio, since the huge company also has to pay their lawyers a hefty sum to prep and litigate the lawsuit.

P.S. Warner Bros. has more money than Chock-Full-O-Nuts, so no injunction relief was provided, and the other coffee in its limited run of 10,000 cans is selling as we speak.
When they get done with their 10,000 coffee cans. So be it... they won't care, they're done.

 

[DJDecay]

Describing fair-use in plain english: As far as the law is concerned fair-use is actually interpreted "innocent infringement" (no I'm not kidding). And although the owner of the trademark, brand or whatever has no legal merit to sue you the independent film-maker. There is another set of rules stemming from

Distributors, Networks and the likes of Getty Images where this legal litmus test does not apply.

--- Enter exerpt about John Else ---
Jon Else is a filmmaker. He is best known for his documentaries and has been very successful in spreading his art. He is also a teacher, and as a teacher myself, I envy the loyalty and admiration that his students feel for him. (I met, by accident, two of his students at a dinner party. He was their god.)
Else worked on a documentary that I was involved in. At a break, he told me a story about the freedom to create with film in America today.
In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus was stagehands at the San Francisco Opera. Stage- hands are a particularly funny and colorful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage.
During one of the performances, Else was shooting some stage- hands playing checkers. In one corner of the room was a television set. Playing on the television set, while the stagehands played checkers and the opera company played Wagner, was The Simpsons. As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene.
Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. For of course, those few seconds are copyrighted; and of course, to use copyrighted material you need the permission of the copyright owner, unless “fair use” or some other privilege applies.
Else called Simpsons creator Matt Groening's office to get permission. Groening approved the shot. The shot was a four-and-a-half-second image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produces the program.
Gracie Films was okay with it, too, but they, like Groening, wanted to be careful. So they told Else to contact Fox, Gracie's parent company. Else called Fox and told them about the clip in the corner of the one room shot of the film. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox.
Then, as Else told me, “two things happened. First we discovered . . . that Matt Groening doesn't own his own creation—or at least that someone [at Fox] believes he doesn't own his own creation.” And second, Fox “wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of . . . entirely unsolicited Simpsons which was in the corner of the shot.”
Else was certain there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. He explained to her, “There must be some mistake here. . . .
We're asking for your educational rate on this.” That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told.
“I wanted to make sure I had my facts straight,” he told me. “Yes, you have your facts straight,” she said. It would cost $10,000 to use the clip of The Simpsons in the corner of a shot in a documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, “And if you quote me, I'll turn you over to our attorneys.” As an assistant to Herrera told Else later on, “They don't give a s..t. They just want the money.”
Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera.To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before.

 

[j1clark@ucsd.edu]

Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera.To reproduce this reality was beyond the documentary filmmaker's budget. At the very last minute before the film was to be released, Else digitally replaced the shot with a clip from another film that he had worked on, The Day After Trinity, from ten years before.

Well, there's a use for all those movies that have fallen into Public Domain status... used as filler...