Legal Question: Board Game in Short Film?

Dave Blackhurst · July 26th, 2009, 01:54 PM

Quote:

Originally Posted by Chris Davis

Even here the odds of getting sued are astronomical for unauthorized use in a small film (you probably wouldn't get sued, you'd instead get a cease and desist letter... and even that's a very small chance.) What we try to avoid is the possibility we have to reshoot because some pencil-pusher gets pissy.

I'll only note that the recession has also put quite a few attorneys out of work too... not the time I'd be looking to "make work" for them.

"Small film" is relative anymore, when an unknown with a handycam can shoot a video that goes "viral" and gets millions of views and national (international?) attention.

I think the problem arises in that an IP holder is required by law "prosecute" infringement in order to protect their rights, otherwise a precedent is set, and that IP holder is in the unfortunate position of losing the control of their IP.

IP is still PROPERTY, the same as a car, house, computer, DVD player, etc... the owner has a right to control the use as they see fit.

I know that most scenarios brought up here are rather innocent, but you have to think a little bit about the potential - what if a whipped cream maker has objections to being prominently featured in an "adult entertainment small film" and wishes to put a stop to it, but because they didn't object to its use elsewhere when it was used in in "family small films", they are in the position of having a less viable claim in Court? That's why they have to at least show a paper trail of enforcement and licensing/permission.

For the producer of a video, the risk MAY be small, but if the IP holder has a legal department that is concerned with protecting the IP, they might find it "easy work".

There's no easy answers in the new age of digital media.

Paul Tauger · July 27th, 2009, 09:02 PM

Quote:

Originally Posted by Chris Davis

Fake game = no trouble guaranteed.
Real game = maybe trouble, maybe not.

I know that the US is famously litigious but what possible reason could you have trouble? What is the difference between featuring a board game in a video & any other object from everyday life like a car, a laptop or a mobile telephone? All are designs that are protected by copyright but can be used in a video production without problems.

[/quote]Cars, laptops and mobile telephones are, generally, not protectable in copyright (exceptions include components that are severable, e.g. the winged lady sculpture on a Rolls Royce. Game boards are protectable in copyright.

That's only the copyright issue. There is also a trademark concern.

With all due respect, American intellectual property law is not something that is readily susceptible to a common sense analysis.

Quote:

I do realise that there may special cases where denigrating the product or falsely implying that e.g. the product is dangerous or that the manufacturer endorses terrorism would not be acceptable.

That, however, is not an intellectual property concern.

Paul Tauger · July 27th, 2009, 09:04 PM

Quote:

Originally Posted by Dave Blackhurst

I'll only note that the recession has also put quite a few attorneys out of work too... not the time I'd be looking to "make work" for them.

"Small film" is relative anymore, when an unknown with a handycam can shoot a video that goes "viral" and gets millions of views and national (international?) attention.

I think the problem arises in that an IP holder is required by law "prosecute" infringement in order to protect their rights, otherwise a precedent is set, and that IP holder is in the unfortunate position of losing the control of their IP.

IP is still PROPERTY, the same as a car, house, computer, DVD player, etc... the owner has a right to control the use as they see fit.

I know that most scenarios brought up here are rather innocent, but you have to think a little bit about the potential - what if a whipped cream maker has objections to being prominently featured in an "adult entertainment small film" and wishes to put a stop to it, but because they didn't object to its use elsewhere when it was used in in "family small films", they are in the position of having a less viable claim in Court? That's why they have to at least show a paper trail of enforcement and licensing/permission.

For the producer of a video, the risk MAY be small, but if the IP holder has a legal department that is concerned with protecting the IP, they might find it "easy work".

There's no easy answers in the new age of digital media.

Yep. What Dave said. ;)

Jim Andrada · July 28th, 2009, 12:12 AM

Particularly the part about "no easy answers"?

Funny - every time I asked my company's legal guys if it was OK to do A, B, or C, I never got a "yeah, go for it answer" or a "you'll wind up in jail" answer. Admittedly I was never proposing anything blatantly illegal.

Then one day, while I was muttering about how I never could get a straight answer out of him, one of the legal guys told me that I was the business guy and it was my job to decide what to do and do it, and his job to make sure I understood the legal risks of actions A, B, and C before I did whatever I was going to do. But that regardless, there was nothing with zero risk.

From which I learned that since anyone can sue anyone else at any time for almost anything, there is no "safe" answer, just (in the US at least) varying probabilities of getting into trouble.

But the most important point I believe was that there was no such thing as zero percent probability of getting into trouble.

In the extreme, let's supose you make up a game - I bet somewhere there's someone who could come out of the woodwork and claim that he made up the same game, no matter how ridiculous. Is this a serious risk - well, probably not

Also, what if you showed someone playing Monopoly? Certainly you haven't attempted to sell a copy of the game, or otherwise appropriate it for your own ends. or pretend or imply that you're the owner of the game, or that you're using the trademarks etc - it's just an incidental shot of a couple of people playing a game and to the extent that there's nothing particularly relevant about the game being Monopoly (ie it could just as well have been tic tac toe) how much risk do you think there is?

Is it zero - probably not - it never is. Is it high enough to worry about? Ask your attorney to help you figure it out. Probably depends on your degree of risk aversion as much as anything else.

But I doubt you'd get a clear cut "yes it's OK" or "hell no don't do it" response.

Of course, what do I know - I'm not an attorney, never wanted to be one, still don't want to be one, and at my age I'd probably be dead or delusional or both before I could graduate from law school even if I DID want to be one.

Just sharing a personal perspective.

Dave Blackhurst · July 28th, 2009, 11:19 AM

You can wake up, step out of bed, pull out of your driveway and crunch your cranky neighbors mailbox, your tree can grow over that same cranky neighbor's fence, or you can cut some branches of of his tree that's grown over your fence... lots of "potential liabilities", most of which never happen or are inconsequential until it happens and "someone" has either the money or position of power/authority to make an issue of it, and decides to.

If you drive over the speed limit, you broke the law, but unless a flashing red light comes on behind you, it's not an issue... and then maybe it is, or maybe you get off easy... if you do get a ticket and go for your day in Court, you've got a whole other universe of potential outcomes...

Life is inherently fraught with "danger", unless one stays in bed (with it's own set of dangers, I suppose). To make it more interesting, there are hundreds of thousands of laws, statutes, regulations, conditions, contractual agreements (you did get a cell phone right? do you know what you signed?), and even "social agreements", which can become the subject of disputes. Oh, and did I mention OPINIONS?

Sometimes things come down to whether people are decent and "do the right thing" (whatever the "law" says), or whether someone want to see how much power, rights or authority they have (then the "fun" begins).

As a practical matter, "law" tries to keep civilization from falling into anarchy, and for the most part succeeds if everyone sticks with the program. It's when someone decides that the law doesn't apply to THEM, or that there is a flaw in the law that requires revision (there ARE times when "the law" is simply WRONG) that it gets interesting.

We wouldn't have civilization without law, yet too many laws or improper enforcement will crush a society or individuals therein, tis a delicate balance. Attorneys live in that world, the rest of us try to do something else for a living, to each his own!

For the OP, the simple thing is to avoid the POTENTIAL IP infringement if possible, just in case. If there's a "c" in a circle, an "R" in a circle, or a TM, either clear the rights or find an alternative. There's no way of knowing if 10 people or 10 million will see the OP's film, and better safe than sorry.

Jim Andrada · July 28th, 2009, 11:50 AM

Well, I did after all suggest Checkers or something.

Or maybe Cribbage.

Whoops - the cards might be copyrighted. In fact they almost certainly are. And what if the players are wearing Nike shoes that accidentally get into the shot. Or maybe Levis jeans, - or G-- forbid a brand name shirt or cap. Or maybe wearing a Rolex watch, or carrying an Apple iPhone. Of course, we can only hope that nobody has a NY Times or Stephen King novel or Time magazine on the table. And come to think of it, even the checkerboard might have a copyright mark on it somewhere.

And eyeglasses are probably branded as well. Hopefully of course there won't be any reflections of your camera in the shot from which somene could guess what make it is. And what about all those cars and trucks in the background with their brand names showing? To say nothing of someone swooping through the shot on their (branded) skateboard.

And hopefully no robbers will swing by carrying their trademarked pistols or knives or baseball bats.

Well, let's only use naked actors - probably another law against that.

If the US can grant a patent on the wheel (they did, but to be fair it was an improved bucycle wheel) can anybody be safe from the invasion of the branded and copyrighted products?

Generics unite! Let's all live in a world of black and white cans - whoops I think some fonts are protected. As probably are the shapes of some cans

Let's all close our eyes, burn our cameras, assume the fetal position, and wait for it to be over!

Seriously, it's all about risk assessment.

July 28th, 2009, 12:12 AM	#19
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	Particularly the part about "no easy answers"? Funny - every time I asked my company's legal guys if it was OK to do A, B, or C, I never got a "yeah, go for it answer" or a "you'll wind up in jail" answer. Admittedly I was never proposing anything blatantly illegal. Then one day, while I was muttering about how I never could get a straight answer out of him, one of the legal guys told me that I was the business guy and it was my job to decide what to do and do it, and his job to make sure I understood the legal risks of actions A, B, and C before I did whatever I was going to do. But that regardless, there was nothing with zero risk. From which I learned that since anyone can sue anyone else at any time for almost anything, there is no "safe" answer, just (in the US at least) varying probabilities of getting into trouble. But the most important point I believe was that there was no such thing as zero percent probability of getting into trouble. In the extreme, let's supose you make up a game - I bet somewhere there's someone who could come out of the woodwork and claim that he made up the same game, no matter how ridiculous. Is this a serious risk - well, probably not Also, what if you showed someone playing Monopoly? Certainly you haven't attempted to sell a copy of the game, or otherwise appropriate it for your own ends. or pretend or imply that you're the owner of the game, or that you're using the trademarks etc - it's just an incidental shot of a couple of people playing a game and to the extent that there's nothing particularly relevant about the game being Monopoly (ie it could just as well have been tic tac toe) how much risk do you think there is? Is it zero - probably not - it never is. Is it high enough to worry about? Ask your attorney to help you figure it out. Probably depends on your degree of risk aversion as much as anything else. But I doubt you'd get a clear cut "yes it's OK" or "hell no don't do it" response. Of course, what do I know - I'm not an attorney, never wanted to be one, still don't want to be one, and at my age I'd probably be dead or delusional or both before I could graduate from law school even if I DID want to be one. Just sharing a personal perspective.

July 28th, 2009, 11:19 AM	#20
Dave Blackhurst Inner Circle Join Date: Feb 2007 Location: Apple Valley CA Posts: 4,874	You can wake up, step out of bed, pull out of your driveway and crunch your cranky neighbors mailbox, your tree can grow over that same cranky neighbor's fence, or you can cut some branches of of his tree that's grown over your fence... lots of "potential liabilities", most of which never happen or are inconsequential until it happens and "someone" has either the money or position of power/authority to make an issue of it, and decides to. If you drive over the speed limit, you broke the law, but unless a flashing red light comes on behind you, it's not an issue... and then maybe it is, or maybe you get off easy... if you do get a ticket and go for your day in Court, you've got a whole other universe of potential outcomes... Life is inherently fraught with "danger", unless one stays in bed (with it's own set of dangers, I suppose). To make it more interesting, there are hundreds of thousands of laws, statutes, regulations, conditions, contractual agreements (you did get a cell phone right? do you know what you signed?), and even "social agreements", which can become the subject of disputes. Oh, and did I mention OPINIONS? Sometimes things come down to whether people are decent and "do the right thing" (whatever the "law" says), or whether someone want to see how much power, rights or authority they have (then the "fun" begins). As a practical matter, "law" tries to keep civilization from falling into anarchy, and for the most part succeeds if everyone sticks with the program. It's when someone decides that the law doesn't apply to THEM, or that there is a flaw in the law that requires revision (there ARE times when "the law" is simply WRONG) that it gets interesting. We wouldn't have civilization without law, yet too many laws or improper enforcement will crush a society or individuals therein, tis a delicate balance. Attorneys live in that world, the rest of us try to do something else for a living, to each his own! For the OP, the simple thing is to avoid the POTENTIAL IP infringement if possible, just in case. If there's a "c" in a circle, an "R" in a circle, or a TM, either clear the rights or find an alternative. There's no way of knowing if 10 people or 10 million will see the OP's film, and better safe than sorry.

July 28th, 2009, 11:50 AM	#21
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	Well, I did after all suggest Checkers or something. Or maybe Cribbage. Whoops - the cards might be copyrighted. In fact they almost certainly are. And what if the players are wearing Nike shoes that accidentally get into the shot. Or maybe Levis jeans, - or G-- forbid a brand name shirt or cap. Or maybe wearing a Rolex watch, or carrying an Apple iPhone. Of course, we can only hope that nobody has a NY Times or Stephen King novel or Time magazine on the table. And come to think of it, even the checkerboard might have a copyright mark on it somewhere. And eyeglasses are probably branded as well. Hopefully of course there won't be any reflections of your camera in the shot from which somene could guess what make it is. And what about all those cars and trucks in the background with their brand names showing? To say nothing of someone swooping through the shot on their (branded) skateboard. And hopefully no robbers will swing by carrying their trademarked pistols or knives or baseball bats. Well, let's only use naked actors - probably another law against that. If the US can grant a patent on the wheel (they did, but to be fair it was an improved bucycle wheel) can anybody be safe from the invasion of the branded and copyrighted products? Generics unite! Let's all live in a world of black and white cans - whoops I think some fonts are protected. As probably are the shapes of some cans Let's all close our eyes, burn our cameras, assume the fetal position, and wait for it to be over! Seriously, it's all about risk assessment.