Keeping it real

I don’t give my kids an allowance.  Nor do I pay them for doing the household chores I ask them to do.  We’re all members of a family, with rights and responsibilities, and I don’t feel anyone should be paid just for merely being.  Now hold your breath for this leap:

Why should trademark owners have the right to extract permission and remuneration from movie or television producers who simply want to use real products in their productions?  Can’t you argue that the use of a product to convey a certain idea is part of the writer’s creative process and thus should not be subjected to the vagaries of commerce?

I just watched the episode of Entourage where the flight to Cannes is canceled.  This show is absolutely littered with product placement: iMac, Cisco, Gucci, Chanel, you name it.  But for the canceled flight?  It was scheduled on “France Airways.”  ARE YOU KIDDING ME?  Every week, this show juxtaposes real characters (in this particular episode alone, Anna Faris, Kanye West and the ever-amazing Sydney Pollack appeared as themselves) with fictional ones to achieve the verisimilitude of “real Hollywood.”  Moreover, the show’s excruciatingly materialistic characters are completely defined by the clothes they wear and the cars they drive.  Virgin Airways appeared to have no problem allowing its name to be used;  nor did Marquis Jet.  But with no Air France to fly LAX to Cannes, the entire episode, in my humbly biased opinion, never made it off the runway.[i]

Here’s the thing: When Stephen King writes a novel and refers to a person who smoked Herbert Tareytons and drank Jim Beam, he’s creating a certain image and conveying meaning about that character precisely through the use of those particular brands.  Should the owners of those trademarks be compensated for that mention?  I doubt anyone would argue they should.  But if you change the context to a movie or television program, why do the rules change?  Just try, without permission or a license, to have a character be a Yankee fan who won’t even shower without his Yankee cap on.  Why do you have to blur out a Nike logo on a t-shirt worn by a reality show participant unless you get permission from Nike?  If it’s reality, why can’t we show it?  And if it’s a fictional version of reality, again, why can’t we show it?  Isn’t this nominative fair use?  Why should you get paid for fulfilling your intended role?

I recognize that the idea that trademarks should be free for use not as source indicators but as indicators of the very things they are[ii] is not necessarily a popular one.  (Maybe it’s a relic of my socialist past.)  I just don’t think that the old circular argument of “the public believes that a license is required to use a mark, so that’s why we require one” really holds up to scrutiny.  On the other hand, it appears that some large trademark owners actually publicly acknowledge that the use of their brands in movies or television is fair use.[iii]  I think it’s time to rein in the juggernaut of trademark rights in gross, in the name of art if nothing else.  I don't purport to have started the discussion, but I’d like to continue it.

[i]I saw a striking contrast to the trend of product placement bombardment in the movie 13 Going on 30.  Instead of using the logos of familiar brands, something you’d expect in a film focused on the female teen demographic, the film showed what appeared to be logos for fictional products.  The result was a movie where we (the collective average filmgoer) focused on the movie and not on the stuff, while the trademark lawyer watching the movie wasn’t distracted by thinking about all the different licensing agreements or restrictions on the type of use made of the licensed logos.  On the other hand, in a movie like Talladega Nights: The Legend of Ricky Bobby, the product placement bombardment itself is intentional and irony-ridden.  And funny too, what can I say?

[ii] Or as Wallace Stevens aptly phrased it, “Not Ideas About the Thing But the Thing itself.”

[iii] Yes, I know their reasons for making that assertion are as bottom-line focused as the reasons of companies that do insist on product placement fees.


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  • 9/3/2007 1:03 PM br wrote:
    As far as Entourage goes, is it possible that companies actually pay to have their products included in the show? If so, they wouldn't try to rely on nominative fair use, because if they use any brands that they weren't paid for, it could create the impression that those companies have "endorsed" the show as well. (And they potentially wouldn't be able to command as much money for product placement.)

    On the other hand, if there is payment for product placement, but the public doesn't know that it's actually paid-for, how would the public even know that some brand mentions were paid for and others were not. And the whole "public perception" issue is the wildcard that makes the question of "Do I need a license?" such a mess.

    I've seen name-brand products displayed in plenty of movies where I cannot imagine that the film producers actually got licenses. And very obviously there are situations where logos are blurred even though it's almost certain the use of the logo would qualify as nominative fair use.

    As such, I'm really curious to know what percentage of the time (even a rough estimate) filmmakers get licenses for the products they show. Do you have any guesses based on your practice experience?
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  • 9/4/2007 8:21 AM Jessica Stone Levy wrote:
    The whole thing is a mess, I agree.  I couldn't even hazard a guess about how often filmmakers get a license for product placement, but I'd say you can guess the ones where they do simply based on the prominence of the placement.  So in Entourage, definitely, because the camera lingers on the logos more than is perhaps artistically necessary;  same with The Sopranos, where you'd see Tony grab the orange juice container from the fridge just clearly enough to see the logo (though right now I can no longer remember whether it was Minute Maid or Tropicana).  I'd say in a lower budget movie or show maybe they don't.  I guess I'll have to watch some more television and movies to provide some more educated analysis!
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  • 9/4/2007 10:34 AM Bob Cumbow wrote:
    I don't think that trademark owners have an inherent right to expect payment when their marks are shown (especially incidentally) in a movie or TV show; but the increasingly complex business of product placement is creating some interesting and self-contradictory variations in the world of what ought to be trademark fair use.
    Some shows--like Entourage--are in the product-placement business. Trademark owners don't demand license fees for use of their marks on such shows; instead, they PAY to have their products positioned to a relevant public. Air France evidently didn't pay, and neither did any other airline, so the show used a fake one.
    On the other hand, many shows are NOT in the product placement business, and some get permission and even pay a license fee in order to use a trademark--just as they would with copyrighted material--largely to make sure they won't get sued.
    A third variant is this: Unlike a Stephen King novel, movies and TV shows are shown on television, where they are interrupted by commercials. If you identify a specific product in a movie or on a TV show, it's unlikely that competitors of that product are going to buy ad-time when your show airs on TV. So some movies and TV shows use made-up or masked-out product names in order to maximize TV ad revenues, and to avoid the appearance of product placement where no such placement deal has actually been made.
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  • 9/4/2007 11:18 AM Jessica Stone Levy wrote:
    I do agree that the nature of the television medium and commercials suggests different treatment from a novel.  And I am confident that the advent of TiVo has prompted advertisers to seek every possible opportunity to ensure that their brands get (ew, I can't believe I'm going to use this word) "mindshare."  Still, I can't help being frustrated where the situation demands reality, and if it's real, why should you have to pay for it?

    So here's a question: You're a movie director shooting a scene in the Metropolitan Museum in NY   The movie's protagonist is wearing a Nike swoosh-emblazoned jacket and is standing in front of Office in a Small City by Edward Hopper, surreptitiously nibbling at a bag of M&Ms.  Do you seek rights?  From whom?  Why?    And if you're the copyright or trademark owner, do you sue?  Why?  Good exam question?  Bottom line is I just find that mixing the real and the "ooops, couldn't get the rights for that, let's make a fake" on either the big or small screen, when an accurate depiction of reality is the goal, is disorienting, particularly since the legal basis for requiring permission is so wobbly.  I know, I should try suspending disbelief, but my trademark brain won't work that way.
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  • 9/11/2007 12:54 PM Daniel Chmielewski wrote:
    My first thought would be they wouldn't want to negatively portray a company by product placement.

    Items in the background (clothing, coke, etc) are passive, but if a plot relies on an airline getting the characters to France... and then the airline botches up the flight I don't think the company would be happy with the negative image despite it being fictional.

    Just my $0.02
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  • 9/11/2007 1:47 PM Jessica Stone Levy wrote:
    I agree that they may not be happy with the portrayal, but the question remains whether they have the right to forbid it altogether, and on what grounds.
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  • 9/12/2007 6:22 AM Daniel Chmielewski wrote:
    Could it be considered libel/slander if it's a fictional account? As it may impact public opinion of the company and therefore perhaps reputation...

    That'd be interesting if they have no right to forbid it hehehe... could start a company that negatively product-places brands into shows/movies and extorts companies into paying if they don't want their brands portrayed in negative light =)
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  • 9/18/2007 8:27 AM CassieG wrote:
    I was wondering if payment was actually the issue. For a show like Entourage, these products are reaching a ready-made audience via free advertising. I'd be curious to know whether the product sellers are paying for such positioning or if there are licensing deals being made.
    Reply to this
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