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Am I allowed to show brands?

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Phorland
Am I allowed to show brands?
on Sep 28, 2007 at 10:51:24 am

Hi,
Am I allowed to show brands in my film?
In other words, can I show the DELL logo on the laptop used by one characters? Can I show the brand and model of the vehicle they drive or it's a no-no?
Thanks
Phil


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Steve Wargo
Re: Am I allowed to show brands?
on Sep 29, 2007 at 1:12:19 am

Some people think that you need to block out everything. In the real world, why would you have to?

We see brand names on everything. I have shot several times in Times Square and how could one possibly get an OK from every corporation represented. If something is put out into the public for public display, you have to be reasonable about seeing it in the shot. When a feature film or tv show has a scene in a grocery store, do you think that they have to turn every bottle around? If you have a close up and there is product right next to somone's face, you'll want to disguise that a bit but common sense has to prevail somewhere. How many Harley's have you ever seen in a movie with tape over the brand name.

If your project is not negative or demeaning (porn), why would anyone care?

I am simpy raising issues and questions and by no means am I attempting to give anyone legal advice.

contact http://www.bzrights.com

Steve Wargo
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Phorland
Re: Am I allowed to show brands?
on Sep 29, 2007 at 1:20:23 am

Thanks for your answer. Common sense tells me the same thing, but in this land where everybody sues everybody I just need to know. But what you says is what I thought, but like yours, my thoughts are not legal truth
Phil


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Todd at Fantastic Plastic
Re: Am I allowed to show brands?
on Sep 29, 2007 at 2:56:23 pm

Again, not really legal advice...

But I think your thinking is about right on track. Unless it was a project shot entirely on stage under very controlled condtions, there would be no almost no way to eliminate brands.

You see it in movies all the time... every time a car drives by, a character walks down a city street, or goes to the store, there are countless brands visible. You just know there would be no way those would all have been cleared.

I would say this would be a decent rule of thumb: If a brand appears and it is purely INCIDENTAL (a character walks down a street and there is a Coca-Cola machine on the sidewalk, drives a Mercedez and you can see the grille emblem, a woman carries a Louis Vuitton purse), then I wouldn't sweat it a bit, no doubt you are totally in the clear.

BUT... if a product or brand is shown in a DEROGATORY light (a guy downs half a bottle of Jack Daniels then kills someone in a drunk driving incident, or a character chainsmokes Malboros through a movie only to be diagnosed with lung cancer in the end), then I would be VERY careful. Those could be actionable.

OR... if a brand isn't necessarily presented in a bad light but is VERY prominent and germane to the story (say a guy loves Heinz ketchup so much that he paints his house red and names his dog Heinzie), well... hmmm, I'd say that's a gray area. I'd consult an entertainment attory.

If a brand is featured prominently AND shown in a GOOD light, well hey, you might be able to get some product placement dollars :)

It's wise to err on the side of caution when possible I think.... take a look at this commercial spot we did for a bottled water company which is sort of a "Corona" commercial parody...

http://fantasticplastic.com/media/beach.mpg

In that case we decided to play it safe since we were basically saying "choose our product" rather than one of the other brands... so all the products are actually fake props created by our art director... (the beer is actually "Cordoba," the soda that looks a bit like Dr Pepper is actually "Mr Poppin," the Gatoade lookalike is actually "Crockassist," etc.)




T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com






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blub06
Re: Am I allowed to show brands?
on Sep 29, 2007 at 3:12:20 pm

Unfortunately corporate lawyers have created this nut house mentality of incessant self protection from law suits.

I have had my run ins with the new mentality and it is always the legal department of a company that is demanding sensitivity to these issues. Yes the fear of a suit is the motivation and lawyers have a job to not just fight suits in favor of their company but to prevent them in the first place. I think its completely nuts and the lawyers probably think its great that they get to stick their fingers in the film making pie, even if it does not make the product better, its fun!

There is an insurance policy called Errors and Omissions which tries in some way to cover this but the language has changed and like so many insurance policies it makes every effort to seem like its covering something but it really does not.

I would use an Errors and Omissions policy only because lawyers understand that and in their minds is seems to infer that you made an effort to protect yourself which they actually respond to. Its as if you are stating that you know how important lawyers are and here is the proof, you stepped into their world for a moment and spent some money. Nothing turns a lawyer on more then letting them think that they are important.

Chris


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Nate Graham
Re: Am I allowed to show brands?
on Sep 30, 2007 at 2:19:45 pm

I shot a short film with a news photographer a while back. We had a shot of a character walking along a sidewalk on a busy street lined with businesses. We could see all of the big signs for the stores in the background and were a little worried. The news photographer told us that as long as the camera is on public property anything it can see is okay. Again, this isn't legal advice but I thought it was interesting seeing as the ENG guys always get businesses in their shots and don't seem to have a problem. When they're talking about the murder/robbery at the 711 and show a shot of the place they never seem to get in trouble. It's usually because the media is shooting from a state owned street and not from private property.

Maybe if you place the laptop outside and shoot from the street, you'd be safe to show it's logo? That make for an interesting scene . . .


Nate


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AlexHuber69
Re: Am I allowed to show brands?
on Sep 30, 2007 at 9:19:26 pm

[Nate Graham] "The news photographer told us that as long as the camera is on public property anything it can see is okay"

Unfortunately that is not true. Also must remember that news crews operate by a different set of rules (or sometimes, a lack of). Projects deemed to be "in the public interest" would function differently than commercial projects. For example, you probably could not (at least not without their consent and release) shoot a person eating at a back table at a restaurant from a camera located on the street. That person is not on public property and has a "reasonable expectation of privacy."

Think about all the reality TV shows you've seen (I even saw this on an episode of MTV's "Jackass" just the other night). There were several instances of people wearing tee-shirts with logos, and they had taken time to blur out the logos. Several instances had people on the street, and their faces had been pixelated. This was done for a reason, not just everything on the street is fair game. However most of the other guidelines seemed correct. When in doubt, consult a MEDIA attorney, there are plenty of them just a phone call away in NY and LA. They will charge you for their time and opinion of course, but it will be a pittance compared to avoiding a lawsuit.





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Phorland
Re: Am I allowed to show brands?
on Sep 30, 2007 at 9:56:51 pm

Yes, I believe that the last poster might be right.
Phil


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Steve Wargo
Re: Am I allowed to show brands?
on Oct 1, 2007 at 1:05:12 am

And he probably is. Be cautious of taking advice from a news person or an employee of some kind. They have nothing to lose by their actions. Again, think about the difference between things intentionally placed in the public vs. everything else.

News has an entirely different set of rules.

Steve Wargo


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Bob Cole
Re: Am I allowed to show brands?
on Oct 1, 2007 at 1:54:19 am

You've hit a sore point with me. I know firsthand that a certain mouse-ridden film company which also specializes in overpriced amusement parks will threaten you with legal annihilation, if you plan to shoot an image with one of their trademarked "characters" anywhere in it, even on a sweatshirt. (memo to Mme Bovary, Huck Finn, etc. -- I apologize for using the word "character" for this co's plasticky creations)

[AlexHuber69] "There were several instances of people wearing tee-shirts with logos, and they had taken time to blur out the logos."

I've also seen blur applied to posters on the wall. But at the same time I've also seen plenty of shows in which there was no blurring at all.

I would love to hear from some producer who has been involved in such matters. In particular, as some have suggested here, I'd like to know whether the problem is some actual violation of trademark, or an overly-developed fear of being maybe, some day, sued just because a trademarked item appears in the frame.

And, what's the worst case if a co. attacks? I won't know what the mousy company would have done because I just cut the shot. Their lawyers are staff; I'd have to hire my own.

Bob C

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Bob Cole
Re: Am I allowed to show brands?
on Oct 1, 2007 at 2:15:45 am

I think this is called "incidental use" in debates about "Fair Use."

Here are a couple interesting web pages:

http://en.wikipedia.org/wiki/Fair_use
http://dvinfo.net/conf/showthread.php?t=70012

The consensus, as I see it, is that a lot of people think incidental use SHOULD be considered "fair," but the law is unsettled -- hence all the blurring.

And then you hear stories about product placement, when big consumer goods co's pay to have their trademarks on screen.

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Steve Wargo
There has to be...
on Oct 3, 2007 at 12:15:06 pm

With all that has happened, there has to have been a court case that established some sort of guidelines. We produced a video on an off-raod racing event in 1985 and titled the tape The Mint 400. We got a cease and desist letter from the Dell Webb Corporation. Went to see the lawyer and we sat down to watch our 2 hour epic. After 20 minutes, they asked if we slammed them in any way or had any negative content. We replied "No" and they gave us a legal document granting us the rights to use their "Marks". They also gave us a disclaimer to put on the front of the program. I asked them about the hundreds of logos appearing in the video and their reply was "We can't control the world. What's in the public view is in the public view". Granted, this is only their opinion but this was their top attorney for trademark and copyright infringement, two terms that I had very little knowledge of 22 years ago. Like many others, I considered it free advertising. We now charge for that when possible.


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Steve Wargo
More...
on Oct 3, 2007 at 12:17:48 pm

The following year, 1986, we produced a more vigorous program and a lot of companies asked how their logos could be seen more often. It seems like sporting events are a different breed and have to be separated from other catagories.


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steve goldberg
Re: More...
on Nov 2, 2007 at 11:19:58 pm

This is somewhat unrelated, but I'm curious what people think. I'm editing a video for an insurance company that granted a "free video" to a local fire department on fire safety that will be distributed for free to the residents of the neighborhood. There is a section on "Disaster Kit" and the footage has a lot of products like bottles of water, cans of food, flashlight, bandages, etc. We're about to reshoot all of this and take the labels off all the items and turn the boxes around so that the "brand" isn't showing. Is this necessary? Since this is a big corporation, we're being extra careful, but I'm wondering if we're being overly paranoid.

Nothing is shown in a bad light in any way.

Steve


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Bob Cole
Re: More...
on Nov 2, 2007 at 11:24:41 pm

Two things:

The insurance company may have existing or potential relationships with various vendors, and it doesn't want to offend any one of them by featuring their competitors in a sponsored video.

Showing a specific brand, as opposed to a generic description of the contents of a bottle/package, may be considered distracting and misleading. A viewer who can't get XYZ Brand Rubbing Alcohol may think she needs to find THAT BRAND, whereas all she needs is Rubbing Alcohol.




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KC Allen
Re: Am I allowed to show brands?
on Mar 25, 2008 at 5:09:56 am

If you're doing a documentary, some of those news rules can apply. Here are a couple of websites I found regarding this issue.

http://www.centerforsocialmedia.org/resources/fair_use/
http://www.photosecrets.com/tips.law.html

Here's a nice download for doc producers too:

http://centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf


KC Allen
Allen Film & Video

"Who's the more foolish? The fool, or the fool who follows?"


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