How much is too much?

Thunderclap

Thunderclap

I'm not sure where to post this so since I'm working on setting up distribution I figured here.

Okay... as we all know you technically can't show a product or logo that is trademarked. A work around is by obscuring part of the product. In my feature we use a well known propane lantern (at least here in the States). Here are two frames from the film, the two that I consider the most problematic.

Should I be concerned about releasing the film with these two shots (frames) or do you think I'll be okay?

Frame 1
Frame 2
 
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By asking, you are giving them veto power that the law does not afford them, AFAIK.

A film sequence shot on a city street, might reveal any number of trademarks, on cars, clothes, storefronts, etc. ... where do you draw the line?

I do take some offense at the suggestion that I would disrespect anyone's property. I don't agree that having a Levi's logo show up on a pair of jeans is somehow mistreating the company's property. It would not damage Levi to have their products shown, being used as they were intended. If it was my company trademark, I'd think of it as free advertising to see my products being used or worn in a feature movie. I do respect the rights and interests of others, and I resent any insinuation otherwise.

I also understand that this entire issue may be in the hands of the distributor. However, I am speaking more in the hypothetical, and just wondering if anyone else saw anything wrong with this picture. Apparently I'm completely out of my element here. I will defer to those with infinitely more experience than I, but I'd appreciate some respect, in that I'm not suggesting that anybody's property (physical or intellectual) be misused or abused.

(please do not read any hostility or animosity into this post, none was intended ... just trying to be succinct)
 
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If you are showing the product as it is intended to be used, then you are safe - according to what I learned at this seminar. If the product is heavily featured, then contact the manufacturer and get them to give you permission. When I approached Nikon for permission to use their cameras in my film, the only thing they wanted to know was the exact product(s) that would be used, who would be using them in the film (I had to give them the names of my actors - I would imagine they did some rudimentary background check to make sure my actors weren't child killers or something) and who would be distributing the film (me). They signed off no problem. Now, I don't know what would need to happen if my film was picked up by another distributer (won't happen, but 'what if...') or if a cable show wanted to broadcast it or if I posted it on YouTube. I would imagine I would need to inform Nikon. But would Nikon cause problems? I doubt it. Can you say free advertising? They also signed over permission for me to use their logo in any advertising for the film, anywhere, on my website, in any press releases, posters, etc. I was surprised at that. So, point is... don't underestimate the power of film and the free advertising you offer. I would think if you had your serial killer/molestor/drug addict walking around with an ipod, that might be problematic, but maybe not. Take a chance and call an entertainment lawyer and see if s/he'll talk to you for a minute about it.
S/he might give you some free advice - you could turn into a million dollar client one day.
 
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Hypothetically, perfect world...everything should be available for us to give a realistic presentation and have actors not have to pick up containers in certain ways to hide labels.

I tend to be more of a pragmatist, a question like this could be something to make a film about to open a dialog about it, but as far as the situation exists now...we are slaves to the end goal of our product. If you will be self distributing and are willing to take the risk of including whatever product...go for it...you'll more than likely have no problems...but what if one product owner decided to sue, what is your financial exposure. It's a gamble. How much are you willing to spend to defend your right to use the product correctly per the law? Right or wrong, you lose financially. At least if you are in the same financial situation as me for filmmaking.
 
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Mr. Knightly. I'm in agreement with you. As I said way back, I understand we all need to eat and pay our bills, and we can't afford to be too idealistic. I know you are right. For me to argue with you would be like a 4 year old telling his grandpa how things should be. Like everyone, I pick my battles carefully, but my goal is to live up to my principles as well as I can, because you can't put a price on a good night's sleep.

Thanks for the discussion, anyway. Let me say to anyone reading, nothing I've posted was meant as sagely or legal advice for shooting a movie. I was just thinking out loud, about how much control we really want to give up, where the lines are drawn, and how the law works to protect the rights of everyone involved. If this decision really belongs to the distributor, then so be it.

Douglas Toltzman
 
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As I've stated in the past, on this and other boards...discussion is the hallmark of an advanced community. These are important issues and need to be discussed.


which of us is the 4 yr. old?
 
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If something like a quick shot of a lantern is a serious issue for the distributor, then they are just too wimpy. Coleman most likely doesn't care and/or appreciates the free advertising.
There is something in the US called the first amendment which carries more weight than a quick shot of a trademarked product! - No matter what corporations would like to have you believe.
Even if they do complain, they are unlikely to win anything, they will look bad in the process, and they will spend money on pointless litigation.
Do you remember the film "Coca Cola Kid"? The entire film was about coca cola. Coke realized they'd hit too much bad press if they attempted to litigate.
 
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clive said:
Actually I completely agree with you -- it's a farce that film makers should have to worry about trade mark infringement.
Click to expand...
It's a farce until YOU are defending your trademark. Then it's your livelihood.

What if: You go the movies and two characters are watching TV and they are watching a movie YOU made. They discuss it (all good, of course) as a story point. But the producer didn't ask you for permission. I assume if you aren't making a living with your movie you might say, "Any exposure is good." But if licensing that movie is one of the ways you earn a living, you might wish to have, al least, been asked.

filmscheduling said:
If something like a quick shot of a lantern is a serious issue for the distributor, then they are just too wimpy.
Click to expand...
This may be. And if Thunderclap (or any filmmaker) is willing to take the chance, that's fine. But if a "wimpy" distributor choses not to distribute your movie because you don't have all the legal clearances, that's money YOU lose. All of the distributors I use are VERY wimpy - but they pay.

"The Coca-Cola Kid" is a great example. Proof that not getting clearances can end up in the filmmakers favor. But the director and the prodCo (Smart Egg) already had a fairly good track record. Precedent shows Thunderclap and the distributor would win if Coleman chose to fight. Is that a gamble worth taking? It might be.
 
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Again, even if you win...if it goes to court, you may lose your livelihood pursuing a verdict that says you're right...that's the gamble...morals/ethics are irrelevant except for the sake of open discussion for this topic.

Should doesn't matter if you go broke and can't pay your rent/mortgage.
 
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There's always at least one pragmatist in the crowd!

As a counterpoint, though ... a high price has been paid for our right to free speech, and a filmmaker's career is dependant on protection of that right. Someone has to be willing to take some risks, or our rights and legal protections will just continue to be whittled away.

Did Morgan Spurlock get permission from MacDonalds to use their trademark in "Super Size Me" ? Somehow, I doubt it. On the other hand, if you don't aspire to make that sort of movie, it isn't such a big deal. I have plans to make a movie about pointless destruction and thoughtless consumption of natural resources. I'm sure that will offend a lot of people, but I honestly don't care. It's a not-for-profit project, so there's no telling how long it will take me to finish it. Then you can all laugh and say "I told you so".

Knightly, I know you're right, and I know I'm going off on a tangent with this. However, I think we should always take these issues very seriously. After all, people have given their lives for the privileges we enjoy.

Douglas Toltzman
 
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I don't have any dependants, so I cannot say what risks I may or may not take if I had them.

In any case, this particular case of the Coleman label wouldn't be worth even a nominal risk, since it's so easy to fix in post, and it wouldn't alter the story or message in any way. This discussion would be far more meaningful, if we were discussing a substantive change. Also, I think if I were going to "fix" a potential trademark issue, I would fix it before anyone made an issue of it. That way, nobody will see it as a victory, and be encouraged to demand other edits. After all, if nobody sees it, it was never there.
 
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One major issue is (and a friend of mine had this) he wrote to Miramax asking for permission to have a Pulp Fiction poster in teh background. Now this film and the poster would never have been an issue but because he raised it they told him he had to write to Tarantino's compnay and get permission from them.

In the end it cost him close to £1k just for one poster which would never had been noticed anyways. The lesson here is sometimes beging totally upfront isn't always the cheapest option!!!
 
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Now this film and the poster would never have been an issue...
Click to expand...

I wouldn't bet on that. Using copyrighted images, music, etc. in a commercial product is really dangerous ground. Your only legal defence is "fair use", and the use you cited probably wouldn't qualify, so the penalties could be steep. In this area, the law is not on your side, so I think your friend did the right thing.
 
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Here's the bottom line (as I have researched this).....

If you ask permission it is proof pisitive that on that date you asked, you believed that you needed permission. Even a request loaded with hedge words and disclaimers is a request. So DON'T!!!!

You have every right to make a realistic film. Therefore all the trademarks and product names that show up in a realistic scene are fair game. As long as the products are used properly and safely, as the manufacturers intended you may use them without obtaining permission.

Other questions you might ask:
1) Amount and substantiality of the portion used
2) Will the public think less of the product
 
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I'm with you on this, Blade. I also subscribe to something that was said in the article that Knightly linked; if you don't use it, you lose it ... referring to the rights granted by fair use. I think the same could apply to our rights regarding "fair use" of trademarks, as they appear around us everyday (try taking a photo at a ball game that doesn't include a trademark).

However, your bottom line doesn't take into account what you are going to do if you need a distributor for your film, and no distributor will assume the risk. From what I've read here, and in other sources, that is a real probability.
 
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True. It appears as though this guy's use of the Coleman product is harmless and therefore fair, but distributors are paranoid.
So wouldn't a distributor contractually make YOU assume the risk of any suits pertaining to copyright infringement? Or would they still be too afraid?
 
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