Why do some TV shows not mention real-life brands, yet others do?

May 29, 2013 5:01 PM

Some TV shows (and movies, and novels) go out of their way to avoid mentioning real-life brands. This video shows countless mentions of faux social networks: Friendbranch, Facefinder, Friendnet, etc etc, rather than Facebook. But others freely portray real-life companies when they want to. How come?

The most obvious counter-example is the film The Social Network, which is not only all about Facebook, but also about real life people! A more innocuous instance is Hannah Hovarth using Real Twitter in 'Girls', whereas the protagonist in 'Awkward' uses a fictional platform.

What's the rationale here? I used to think it was about how the brand is portrayed (e.g: using Google to find a restaurant = fine vs using Google to stalk and harass someone = lawsuit-attracting) but it seems like that can't be it. I'm just curious what the law is, and why some productions take different routes to others. Incidentally, I'm in the UK, but interested in the law both here and in the U.S.

posted by so_necessary to Law & Government (27 answers total)

The real brands you see are paid product placements.
posted by ceribus peribus at 5:28 PM on May 29, 2013

Well, if you're painting a brand in an unflattering light, you probably don't want to risk being sued so you'll use FacePlace instead of Facebook. If you're just mentioning a brand, like Twitter, and it's neutral, hey, why not?

Now, some shows are featuring actual brands--brand placement. For example, I just randomly have a terrible show called The Middle on. In it the family goes to Red Lobster, and a scene takes place in the restaurant. Interestingly there were ads for Red Lobster during the show. It also featured a kid petitioning for an iPad. I didn't see an Apple commercial, but hell, they don't really need one, now do they?

With DVRs and downloading, companies are experimenting with placing products within shows to see if that drives consumption.
posted by Ruthless Bunny at 5:29 PM on May 29, 2013

It's a matter of getting the correct clearances -- see here for a basic guide to what that means and what it entails. Basically: If a show or movie is using a name like 'Facebook' verbatim, it means that they got permission to do so (and in fact sometimes were paid to do so, a la product placement.) It's not just for brands, either -- you need clearances for music clips, for names you think you made up for people and companies but that might be really real, etc.

If they didn't get permission, they might be sued. It might be a perfectly legal fair use, but the terrain of fair use of trademarks is so embattled that most companies would rather not even raise the question, hence the blurring-out of t-shirts with logos in reality shows, and your litany of made-up brands like Facefinder and Banana Computers.
posted by Andrhia at 5:29 PM on May 29, 2013

I believe in some cases, it's something called product placement, where companies such as Pepsi or Ford will pay for their product to be prominently featured in anything from a photo shoot, tv show, or movie. For example, I think it's on American Idol that the judge sit with giant red plastic cups of Coca Cola in front of them. And the contestants in later rounds will act in car ads singing along as they drive around in Fords. And in movies, it might be really obvious - for example, an actor awkwardly holding a can of beer so that the logo can be seen by millions of viewers.

Without permission, then tv shows, movies, etc. cannot use a copyrighted product.
posted by HeyAllie at 5:29 PM on May 29, 2013

In the US, it has to do with each particular network (for which, read "giant media conglomerate") and its particular internal policies on the matter. There aren't really laws about it, in the sense of criminal statutes, aside from the basic laws about copyright and trademark that apply to everything. If I want to show a bag of Cheetos on my TV show, Cheetos has to agree that it's OK. If permission isn't secured, the company is liable for damages.

Relevant to the video in your link, NBC and its gigantic family of media outlets, which includes several cable channels as well as at least two film studios, have a company-wide policy against "product placement", i.e. the exchange of promotional consideration for the use of company names, logos, brand identity, etc. It's perfectly OK for an NBC show to show a real company logo if permission is granted with no financial compensation or product placement deal. But there are no blanket deals, no formal relationships with specific companies, and any kind of payment or promotional consideration is heavily discouraged by the network.

For instance I worked on an episode of Law & Order Criminal Intent that used really real real life Craigslist, which involved me actually getting to talk to the Craig on the phone! This was OK because we weren't paying Craigslist to use their name, and nor were we making any promotional arrangement. We just asked if it was OK, and they said yes, so we used it.

Other networks are more forgiving on this and encourage product placement deals. In other cases (in my experience, with ABC/Disney) the company carefully scrutinizes all use of real logos to determine whether it would be appropriate in that specific instance. I got a lot of emails from Disney legal saying things like "OK to use, but props should keep in mind this is not a Coke commercial." I've also worked on movies where there was a person with the specific job of cutting promotional deals with companies, for money, that required us to place specific items in specific scenes, basically just like a commercial. So it can be all over the map, really.

I have no idea whether the above post is coherent or not to someone who doesn't work in the media and doesn't live in the US, so please feel free to memail or ask for clarification if you want to know more.
posted by Sara C. at 5:31 PM on May 29, 2013

Useful comments so far, thanks! But how do you explain The Social Network? It's pretty unflattering for all portrayed - I assume it wasn't made with Mark Zuckerburg's or Facebook's blessing!
posted by so_necessary at 5:32 PM on May 29, 2013

Here's a better link about clearances. To quote:

For example, if a FedEx delivery truck pulls into the background of an exterior shot, you must get clearance from FedEx. If you don’t already have clearance from FedEx, I highly recommend that you stage the shot somewhere else or wait until the truck moves because it is risky to count on getting clearance after the fact. If you don’t get clearance, you won’t be able to use that scene in your final cut.
posted by Andrhia at 5:32 PM on May 29, 2013

The real brands you see are paid product placements.

This isn't necessarily true and it heavily depends on the project, the studio and/or network, and the product in question. A lot of the time, no money changes hands.
posted by Sara C. at 5:33 PM on May 29, 2013

On The Social Network in particular, they didn't have permission and it was a gamble whether they would get sued. There was a lot of analysis about it, and Sorkin's response seemed to amount to "they couldn't sue us because it's not defamation if it's true."
posted by Andrhia at 5:36 PM on May 29, 2013

But how do you explain The Social Network?

Well, The Social Network wasn't fictional. I'm sure they vetted everything with lawyers and used other dodges such as composite characters.

You're allowed to depict real things (within limits of libel law). It's just that when your purpose is telling a story about something else as light entertainment, there's no reason to step on a real brand while doing so.

I would hesitate before assuming all such mentions are paid placements, because that's far from true. It's definitely more likely in certain circumstances -- for instance, reality TV, or the way the Bond movies have long done tie-ins with luxury brands.
posted by dhartung at 5:38 PM on May 29, 2013

Regarding The Social Network, since they were telling a more or less real story, whoever sold them the rights to the story presumably has the right to use the name. Or agreed to hold them harmless for any claims made.

Also, it's hard to sue someone based on things they did that are more or less established facts. We all know KFC was founded by Harlan Sanders, so a biopic about Harlan Sanders has to mention KFC. Nobody is harming anyone if they don't say anything that can tarnish the trademark. And telling a story that might be negative about the people who founded the company isn't necessarily sullying the "Facebook" trademark.
posted by gjc at 5:41 PM on May 29, 2013

A follow-up question is: *why* do you need clearances?

Let's say a FedEx van is parked in the street while two TV show characters walk past.
Let's even say the characters are discussing their upcoming bank heist while they do so.

What's FedEx's claim for damages? That their trademark being visible makes it look like they've endorsed the TV show? That people will associate FedEx with bank heists? Or is it a design copyright / IP thing, like using music in a soundtrack? That they should be compensated for the value their van has added to the scene, in the same way you'd (presumably) pay a musician for a track playing in the background?
posted by so_necessary at 5:42 PM on May 29, 2013

Yes, product placements aren't necessarily always paid. TV networks and production companies have different rules, and it can even be situational. If I am doing something where the actor needs a cell phone, I'll probably call Apple and try to get some free ones to use. If they say no, I'm probably going to make darn sure nobody can possibly think that my character is using an Apple product.
posted by gjc at 5:43 PM on May 29, 2013

Here's the guidance from Ofcom for UK produced programs. It doesn't apply to imports, obviously.
posted by ambrosen at 5:44 PM on May 29, 2013

I assume it wasn't made with Mark Zuckerburg's or Facebook's blessing!

This is a little bit different, because going into development on a project like this, there are two things that have to be arranged before the movie can happen:

1. Mark Zuckerberg's life rights. This is different from other kinds of permissions or "product placement" or any of the stuff I talked about above, and has to do with the use of real elements from a living person's life. It's more typically an issue in biopics of a living person or "based on a true story" projects like Erin Brockovich. If you've seen the new episodes of Arrested Development, the whole subplot where Michael has to go around getting family members' signatures for the movie is him securing their "life rights". Which is why, every time he shows up at Ron Howard's office, Ron asks, "did you get the signatures?" Getting the life rights of the subject of your movie is the very very first thing you MUST do before you can spend any money at all. Because without that permission, the movie isn't going to happen.

As far as why Mark Zuckerberg chose to give permission, who knows? I know the film is based on a long form article from, I think, The New Yorker, and his involvement might have come through any involvement he had with research for that article. If he cooperated with the original journalist and was OK with the way he was portrayed there, that might have made it easier to get his blessing. It might be a business thing, a marketing thing, or even a personal thing. It's really hard to say without knowing much about the development phase of The Social Network, though I'm sure people have looked into it and there's probably information about it floating around out there for folks who are curious. (If that's you, googling "The Social Network film development" might help.)

Another good example of the "life rights" principle is the film The Rose, which is for all intents and purposes a film about Janis Joplin, except that the character's name isn't Janis Joplin, and important details are removed from the story. Probably because the filmmakers were not able to secure Janis Joplin's life rights from her estate. (Though honestly I don't know much about the development of The Rose and why they chose to do what they did.)

2. The Facebook name, logo, branding, trademarks, etc. This is more along the lines of your standard permissions or product placement. I guess it's possible that a movie could be made about the Facebook story, with Zuckerberg's life rights but without permission to use Facebook. They'd just have to be careful about what they could show on screen, since usually referring to brands in dialogue is not subject to any kind of permission. I can say, "Hi, I'm Mark Zuckerberg and I invented Facebook!" on camera without needing Facebook's permission at all. I need permission when I show someone using Facebook, or when one of the sets is the Facebook corporate offices and we want to show the Facebook logo at reception, have people wearing Facebook t-shirts, etc.

Just like I don't know why Zuckerberg chose to cooperate, the same goes for Facebook. My guess is that this is a more straightforward transactional thing. The filmmakers were prepared to pay Facebook a certain amount of money for the right to use their trademarks, that amount was satisfactory, Facebook agreed. But there could have been a thousand reasons why Facebook was interested, how the negotiations went down, how much Mark Zuckerberg personally had to do with it, etc. Again, this probably would have happened in the development process or very early on in pre-production as the art department figured out what they wanted to show onscreen.
posted by Sara C. at 5:48 PM on May 29, 2013

For background stuff, it's mostly just out of an abundance of caution. They don't want FedEx to even try to sue them, because they don't want to be bothered.

It's not so much about intellectual property, as much as it is about branding. If a story requires a delivery truck to be late with a delivery, no real company is going to want to be associated with that, and depicting a real company could definitely adversely affect the company. It's along the same lines as libel.

Plus, there is the added complication that if you hold a trademark, you HAVE to defend it as diligently as possible, because knowingly letting someone off the hook can affect your ability to recover damages in some future case.
posted by gjc at 5:49 PM on May 29, 2013

TVTropes: "Brand X"

It says that in Canada and the UK, product placement is against the law.

Also "Bland name product"
posted by Chocolate Pickle at 5:50 PM on May 29, 2013

What's FedEx's claim for damages? That their trademark being visible makes it look like they've endorsed the TV show? That people will associate FedEx with bank heists? Or is it a design copyright / IP thing, like using music in a soundtrack?

More the latter than the former, though the other stuff can come into it. It's funny you mention FedEx, because I once worked on something where the writers wrote DHL into the script. So we called DHL and tried to secure permission to use their logo on a box.

DHL wanted to see script pages* in order to vet what we were implying about them or what kinds of associations people might make. The scene was an innocuous one that didn't really have anything to do with DHL, but it happened to be a crime scene. Which DHL felt would imply bad things about their company, make people associate DHL with murder, cause viewers to wonder if the DHL delivery guy did it, etc. All completely bullshit, but definitely their prerogative.

So they didn't grant permission, and we didn't use DHL, we made up a fake shipping company instead.

*More frequently, it doesn't ever come to this because the company doesn't care. But if they ask, we comply, and if that causes them to have second thoughts, well, that's life in clearances.
posted by Sara C. at 5:53 PM on May 29, 2013

It also featured a kid petitioning for an iPad.

This probably had nothing to do with anything. I guess it's possible that there are some corporate deals that go beyond the clearances and product placement people and are there at the level of the writers, but it sounds really unusual to me. It's definitely not a part of Apple's standard deal they offer productions.
posted by Sara C. at 5:54 PM on May 29, 2013

@ Sara C.: In case of portraying the USPS or the IRS or something similar, do the same rules apply?
posted by travelwithcats at 6:13 PM on May 29, 2013

I don't know.

I've had to clear parks department logos and such, though it really just means getting to the relevant person and having them sign off on a clearance agreement.

In other situations, we've made something ourselves. Though those situations might be "we spent a day trying to get this one guy on the phone and he's impossible to reach", or "legal doesn't know what we should do", or "it turns out the actual name of the department is Health And Mental Hygiene, not Health Department, and it's complicated, so let's just make a Health Department thing and move on," or "their real logo is ugly".

In still other situations, we've confirmed that official seals, flags, etc. are public domain and used them without obtaining official permission.

Anything that's obviously IP, though, like logos, advertising materials, websites, etc. we would probably need clearance on.

This may be something that differs by studio/network, since it's really a matter of company policy more than anything else.
posted by Sara C. at 6:39 PM on May 29, 2013

if you hold a trademark, you HAVE to defend it as diligently as possible,

This.
posted by SMPA at 6:58 PM on May 29, 2013

It's also possible that with the Social Network the film-makers were reasonably sure there wouldn't be a lawsuit because the unflattering fictional details that were added weren't things that the real people involved wanted endlessly repeated in the media in the course of a suit. The filmmakers took some pretty big risks - they insisted, over and over, that details they had made up which were very unflattering to the people involved were "essentially true!" - so they were clearly pretty confident about this.

The most unflattering bits in that movie were (as I understand it) almost entirely based on documents from people suing Facebook, with details of Zuckerberg's personal life totally made up...but how much would Mark Zuckerberg want to spend years telling the press, over and over, "No, I didn't start Facebook because I wasn't able to sustain any relationships with girls in college!" How would it benefit him or Facebook were he to do so?

The most obviously negative insinuations in the film actually were actually about Zuckerberg's now-wife, Priscilla Chan. While she doesn't exist in the film per se, and isn't named, the film does contain a parade of women filling her role, some seemingly cast to look like her, all portrayed as sexually-available, not very bright, and only interested in Zuckerberg after Facebook's success. The filmmakers and their lawyers may have gambled on the idea that, weirdly enough, some amount of privacy for her is apparently important to both her and Zuckerberg.
posted by Wylla at 2:09 AM on May 30, 2013

It says that in Canada and the UK, product placement is against the law.

FYI it's actually legal in the UK now, but only commercial stations will do it (i.e. the BBC won't), and if you have product placement in your show you have to display a "P" logo at the start and after every ad break.
posted by EndsOfInvention at 3:10 AM on May 30, 2013

The Simpsons are really inconsistent in this fashion, many times using the real name of a person or product ("Mountain Dew or Crab Juice?", Bill Gates and goons coming in the bust up Homer's startup). And then other times using a fake (Mapple and Steve Mobs, which produce the MyPod). And then a mix (Dick Cheney:"I've got a MyPod full of Lee Greenwood"). It's Rainier Wolfcastle in the show, but they used Arnold Schwarzenegger in the movie. In conclusion, product placement is a land of contrast.
posted by 445supermag at 7:11 AM on May 30, 2013

It's also possible that with the Social Network the film-makers were reasonably sure there wouldn't be a lawsuit because the unflattering fictional details that were added weren't things that the real people involved wanted endlessly repeated in the media in the course of a suit.

This doesn't have anything to do with "clearing" Facebook, which would only be getting permission for the use of logos, brand identity, and other actual IP owned by Facebook.

In some situations, a company granting such permission might want access to the script and base their permission on whether their company was portrayed in a good light.

But as long as you don't use the Facebook logo, site, etc. you are welcome to make a film that is critical of Facebook without needing their permission at all. You can even say "Facebook" in dialogue as long as you're not issuing libelous statements. And the fact that The Social Network was based on a preexisting work probably made it easier for the studio to green light the project without worrying about libel suits. Which, again, have NOTHING to do with whether it's OK to show a product/logos/trademarks/IP onscreen.
posted by Sara C. at 7:50 AM on May 30, 2013

Re The Simpsons: this is possibly a stylistic choice, and possibly for Reasons. I don't know how any of this works in animation, because by nature you're not using the IP of whatever company and it all comes down to verbal references.

Again, using people is different from using IP. The difference between using Bill Gates and using Steve Jobs has to do with whether those actual individuals granted permission. Though, again, you can say "The CEO of Apple is Steve Jobs" in dialogue without needed to secure any kind of permission. So it may also depend on what The Simpsons wants to do. You can say "I have Lee Greenwood on my iPod" all you want. The problems start when you want to depict a likeness of Lee Greenwood or an iPod.
posted by Sara C. at 7:57 AM on May 30, 2013