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?
[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.