Brands in Fiction Film

[Joel Guy]

Are there any legal issues using a brand image in a fiction film? For example, showing a McDonalds sign, a Nike shirt, etc.

I wouldn't think this would have to be cleared in any way, considering these things are so much a part of our world now, but I just wanted to check.

Thanks.

[Dylan Couper]

Originally Posted by Joel Guy

I wouldn't think this would have to be cleared in any way, considering these things are so much a part of our world now, but I just wanted to check.

Thanks.

And yet you do.... :)

Do a quick search in this section on trademarks, and you'll probably have more than enough reading material to last the night.

[Marco Leavitt]

Near as I can tell, this issue has rarely been tested. I've yet to hear of a single filmmaker who has been sued or denied entry into a film festival because he or she neglected to tape over the logo on a McDonald's cardboard cup, or other similar situation. Still, unless you want to be the first test case, it's better to be safe than sorry isn't it? It would sure be helpful to know where the line is though. I'm intensely curious about this myself. If anyone knows any real information that's helpful, let's hear about it.

[Joel Guy]

If it is true that you cannot use brands without threat of lawsuit, how does someone like Morgan Spurlock make a movie like "Supersize Me" and get away with it? One could argue that his film was "journalism", aided by the fact that it was a "documentary", but who is really drawing these lines? (By the way, was he sued by McDonalds?)

It's impossible to drive down a highway in America without being bombarded by fast food signs and billboards, etc. Or to walk down the street without seeing someone wearing a Nike shirt. So, if you shoot in real places, and you want those places to look like they really do, I don't understand why I can't film them that way.

McDonalds, etc. bombards our public space with their logos, so I would think it would be my right to film those logos in that public space, whether they are trademarked or not....

If this is not true, something seems horribly wrong about that...

Does anyone have any further insight into the legality of all this?

[Marco Leavitt]

It's a mean old, unjust world isn't it? Going to extraordinary lengths not to film any logos is surely the wisest course, but it strikes me as a little unsatisfactory as well. I think you would do well to avoid ever drawing undue attention to a particular product or logo. As far as exterior shots, obviously nobody would ever be able to film in Times Square if they had to get clearances for everything, so I guess there's some wiggle room. If you're looking for hard information, I suspect the only way to get it is from a lawyer hired by you to research it. He'll probably just tell you to play it safe anyway, thanks for the thousands of dollars.

[Keith Loh]

To add more fuel to the fire, did Sophia Coppola have to get hundreds of releases (or sponsorship agreements) for showing the marvellous night scenes of Tokyo in "Lost in Translation"? They must have shown many dozens of glowing neon street signage.

[Dylan Couper]

Originally Posted by Marco Leavitt

Near as I can tell, this issue has rarely been tested. I've yet to hear of a single filmmaker who has been sued or denied entry into a film festival because he or she neglected to tape over the logo on a McDonald's cardboard cup, or other similar situation.

I agree, however when it comes to actually selling the film is when you will encounter the problems.

I think in general it is pretty easy to keep logos out of frame, simply by taping over them, turning them away, flipping shirts inside out, etc... Only when you are working in public does it become trickier.

[Paul Tauger]

There are three concerns using trademarks in films.

1. Trademark infringement. This arises if there is a likelihood of consumer confusion as to source, sponsorship or affiliation. If there is no likelihood of consumer confusion, there is no infringement.

2. Trademark dilution. This occurs when, with respect to famous marks only, a non-confusing use results either in lessening the source-identifying characteristics of the mark, or tarnishing of the mark.

3. Copyright infringement. Some logs are protected by copyright. ANY use of them, without permission, and outside the context of fair use, would result in infringement.

[Joel Guy]

Thanks, Paul! That helps quite a bit.