Saying "Facebook" or "Ebay" in indie films

MrSeth

MrSeth

Well-known member
Hey guys,

I was wondering what the legalities are if I have a character in my film saying "Facebook" or "Ebay"? Will these companies sue me? What if I'm not insulting the company or defaming them but just mentioning them in a funny dialogue or a small line?

Will I need to pay them for mentioning them?
 
haha

haha

No problems, you can mention whatever you want like that as long as it's not defamatory. That's how you can get away with Star Wars jokes, mentions of people, places, whatever. Even if it is defamatory it's fine for the most part, like a reference to Paris Hilton as a slut. Good luck with her suing you. Now it'd be different if it was a blatantly untrue statement perhaps, but not just run-of-the-mill stuff.
 
Jonathan and GrippagePlus are correct MrSeth. You should be fine, if it is a brief reference. It falls under "fair use" statutes for parody/crticism/humor/satire etc.

Now of course, there is no gurantee you won't get sued. Some companies, like the folks at the company with the mouse for the mascot, tend to sue for just about anything, and figure the paper trail or a cease and desist letter will scare you away.

If you have any doubts, contact a suit with a lawbook... :-)
 
Yes

Yes

This is correct, and a good point to make -- companies can sue you even when they are TOTALLY and COMPLETELY wrong, and even they know they have no case whatsoever. If they believe you don't have the money or energy to defend yourself. It's really quite unfair, and bullying to the extreme, but it does happen unfortunately.

There have been cases where small business owners get sued over a domain name for instance that is rightfully theirs, being used for their business in connection with their name or whatever, and some bigger company has sued them over the domain name. With no justification at all. And let's face it, most people don't have the cash to defend against a team of lawyers, so sadly it's easier to just give it up and get a new domain name or whatever. It's definitely uncool, though. Best thing to do in that case I would say is fight it with PR coverage, like you'd e-mail and call EVERY local paper, national paper, blog, radio stations, whatever, and spread like wildfire that this company is bullying you unfairly and disclose all details. The PR will be so terrible for that company, you at least stand a fighting chance of having them drop the suit, lol.

Sad world, sometimes.
 
...like saying "Kleenex" instead of "tissue"?.......hell, i think a coupl of Facebook and Twitter-isms made it into the Oxford Dictionary for 2010.
 
maestro1d said:
Jonathan and GrippagePlus are correct MrSeth. You should be fine, if it is a brief reference. It falls under "fair use" statutes for parody/crticism/humor/satire etc.

... :-)
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He's fine, but not for the reason you mention. "Fair Use" applies to the use of copyrighted material and is a defense mounted in a suit alleging infringment of copyright. But words like "eBay" and "Facebook" are not copyright, they are trademarks. Trademark law is a whole different critter with a whole different set of rules and there is no such thing as a fair use doctrine there. But it wouldn't prohibit characters from merely speaking the names.
 
Eh

Eh

Steve House said:
He's fine, but not for the reason you mention. "Fair Use" applies to the use of copyrighted material and is a defense mounted in a suit alleging infringment of copyright. But words like "eBay" and "Facebook" are not copyright, they are trademarks. Trademark law is a whole different critter with a whole different set of rules and there is no such thing as a fair use doctrine there. But it wouldn't prohibit characters from merely speaking the names.
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Right and wrong. I've read numerous books on copyright / trademark law. It is essentially a part of fair use, because using trademarked names in that type of manner is considered "non-commercial, editorial use" in published works, for instance, like non-fiction books, even if those works are in fact commercial works. It doesn't matter. You are allowed to use all trademarks when discussing such entities, even in a negative light. Otherwise you couldn't write an article about Coca-Cola stock prices or how the company is doing a bad job with such and such products compared to Pepsi, whatever.

So when you're talking about film, and characters mentioning things like that, yes it's essentially fair use and is very similar. It's no big deal, that's the bottom mine.
 
JonathanLB said:
Right and wrong. I've read numerous books on copyright / trademark law. It is essentially a part of fair use, because using trademarked names in that type of manner is considered "non-commercial, editorial use" in published works, for instance, like non-fiction books, even if those works are in fact commercial works. It doesn't matter. You are allowed to use all trademarks when discussing such entities, even in a negative light. Otherwise you couldn't write an article about Coca-Cola stock prices or how the company is doing a bad job with such and such products compared to Pepsi, whatever.
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No, he's totally right. "Fair use" is a doctrine which applies only to copyright, and is codified specifically in copyright law; it refers to things which ARE infringements but have been carved out as "fair." What you're describing about trademark is the limits of the scope of trademark protection, i.e, trademark protection simply doesn't extend to those things. Copyright and trademark exist for very different reasons and are very different in application.
 
As for the topic, they handled it in a clever way on "Castle" -- one of the characters, the grandmother, said something about posting on "MyFace." The granddaughter went to correct her, but Castle stopped her. It was clever because she could have been referring either to MySpace or Facebook, and they dodged the topic altogether. Plus, it also was a pretty good description of what she did on the site, because it centered around the ethics of posting her face.

Sometimes handling things creatively like that can be much more satisfying, and it eliminates any potential infringement issues -- or at least weakens them considerably.
 
In fact, Paris Hilton should pay you to mention that she's a slut because according to her own words, "any publicity is good publicity". :P
 
Copyright and Trademark issues for films

Copyright and Trademark issues for films

David Jimerson said:
As for the topic, they handled it in a clever way on "Castle" -- one of the characters, the grandmother, said something about posting on "MyFace." The granddaughter went to correct her, but Castle stopped her. It was clever because she could have been referring either to MySpace or Facebook, and they dodged the topic altogether. Plus, it also was a pretty good description of what she did on the site, because it centered around the ethics of posting her face.

Sometimes handling things creatively like that can be much more satisfying, and it eliminates any potential infringement issues -- or at least weakens them considerably.
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Interesting thoughts in this thread. Yes, trademark as opposed to copyright gets sticky, indeed. Also, are we talking trademark, or printed service mark? And can they be casually referred to in conversation? I would think no problem, unless it is unusually defamatory.

But for a case like first Transformers movie, where they mention ebay over and over, and even show the site- that is clearly a product placement that they payed for. But if one character merely says to another - "hey, did you check ebay?" I don't think that would be a problem. But then again- that's what errors and omissions insurance and other legal coverage is for in a motion picture.

Best to have the legal stuff lined up before your distributor starts asking about deliverables... again, consult a suit in pre-production or you may be looking at a reshoot of a scene(s).

Where it gets really sticky is filming buildings... Public buidlings like federal buildings or courthouses etc should be okay, as long as you don't get arrested by homeland security for suspiscion of terrorism WHILE filming them. LOL. But if you make it to the editing suite, you should be okay, unless of course you are filming sensitive or classified military buidlings- then you could be in trouble.

But private buildings are even more sticky... building interiors on private property require owner permission (location agreement time). However, EXTERIORS on private property, even big buildings, are generally okay (check this out) if the building cannot reasonably be physically covered and is within public view. In other words, if you can't throw a tarp over the Chrysler building, then it's fair game. BUT HANG ON- you still can't show the corporate LOGO on a building with out clearance, cause now you are back to service/trade mark infringement. An example would be this: you can probably film the exterior of the Coca-cola building in Atlanta for your movie, as long as you don't show the Coca-Cola logo on top. LOL. And if you go inside the lobby to shoot, you need the paperwork...

Remember to always get clearances of people when you shoot- ESPECIALLY children (signed releases from parent or guardian). You WILL almost always get sued (eventually) when filming children without a release, even with verbal agreement. Get it in writing.

And let's not even go into music clearance and copyright here. We are talking sync license, mechanical licenses, needledrop fees, etc.

Ahh... the legal joys of being a producer... Hopefully the message that is clearest in this thread is... when in doubt, consult an entertainment or copyright attorney.
 
maestro1d said:
...
But for a case like first Transformers movie, where they mention ebay over and over, and even show the site- that is clearly a product placement that they payed for. But if one character merely says to another - "hey, did you check ebay?" I don't think that would be a problem. But then again- that's what errors and omissions insurance and other legal coverage is for in a motion picture.

....
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Just to be clear ... product placement is not when a producer pays a company for permission to use their product or logo in the film. Product placement is when the COMPANY actively seeks to have their products prominently featured in the film, perhaps even underwriting part of the film financing, in return for the advertising. Many years ago I worked for a major international airline and we had a dedicated product placement office within the marketing department whose entire job was to convince film and TV producers to feature the company logo and aircraft in their productions and to make available company facilities - airport terminals, ticket counters, boarding gates, aircraft, etc - as locations (usually at no cost to the production company).
 
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