Legal ability to use brands in movies without permission

August 28, 2020 4:38 PM

I'm making a movie and want people drinking Coca-Cola or driving a Porsche. Do I legally need permission?

This came up indirectly in a post below on a fake candy bar brand, but it'd derail the thread to pursue there and I remain curious. Note my interest is in legal requirements. Not what the common practice is when making a movie or what's smart if you don't want to get hassled by a megacorporation's lawyers with nuisance suits.

My understanding was basically "no," subject to enough caveats you could get an annoying lawsuit anyway if you did piss off a brand. I posted this link as an example. It's not the only one saying this and fits my prior belief--so possibly I'm insufficiently skeptical of it.

Another poster pointed me to this Guardian article, which definitely shows companies successfully controlling their placement. But it doesn't explicitly say this is based on legal rights, so doesn't quite settle the issue for me.

Any MeFites have deeper knowledge of the particulars?

posted by mark k to Media & Arts (8 answers total)

Best answer: That first link that you posted to answered your question in great detail.

Their legal right is based on trademarks covering the name, logo and/or product design. Companies do have the right to prevent you from using their marks in ways that might make others think they were the source of the film, endorsed etc. or ways that interfere with their rights as the owner of the mark. (See article for the details!) Whether the way that you are using it in your particular film violates their rights would have to be settled in court - the article points out some defenses which the film maker can use.

So, what are you still wondering about?
posted by metahawk at 4:57 PM on August 28, 2020 [4 favorites]

IAAL, but not your lawyer (or an IP lawyer), and this isn't legal advice, of course. If you're actually thinking of doing this, no one can guarantee it for sure up front without knowing more facts, and even then you are still at the mercy of what you can convince a court. There's no cut-and-dried answer because the standard is very fact-specific (would someone reasonably be confused and think you are associated or affiliated with that brand?) but as a basic rule of thumb, I think your basic answer of "no but you could still get sued" will be right most of the time.

As an aside because I want to share a delightful thing: If you're dealing with intellectual property that counts as copyright rather than trademark (e.g., you play a strain of a pop song during a scene) then you're in a different legal world. This comic book is actually published by a law school and written by a law prof, and it's my favorite treatment of fair use in film making.
posted by alligatorpear at 6:03 PM on August 28, 2020 [12 favorites]

You can be sued even if the use of a brand is completely innocuous. The trademark owner might disagree that your use is harmless, and they have the right to have the matter decided by a court, because it is their brand and not yours. This doesn't mean you will be sued, only that you can be.

The only thing you can do to guarantee you won't be sued is to get permission up front, which will probably require that you adhere to how they want their brand presented. The good news is that if being featured in your film is desirable to the brand's owner, they may pay you, rather than the other way around.

If being sued by a large company with lawyers on retainer would be a problem for you, then either don't do it or get permission.
posted by kindall at 8:14 PM on August 28, 2020

Best answer: I'm not a filmmaker or lawyer, but my understanding is that there are two separate issues. First, would you ultimately lose a lawsuit if it got all the way to that point? As others have said, the first ink you gave goes into some detail on the considerations that would apply, and it depends on a lot of different factors about how you're using the trademark (many uses of a trademark on packaging will involve use of a copyright as well, so that would also have to be analyzed). There's a difference between a second-long clip in a documentary of someone getting into a Porsche during a newsworthy event and a feature film where Portia The Talking Porsche is a major character.

But the practical issue a film has to deal with is what the production's Errors & Omissions insurer will allow you to do in the first place, since they're the ones who would have to deal with said lawsuit. There's an elaborate clearance process in which every piece of intellectual property in a film is scrutinized and rights obtained. The insurer will likely want a legal opinion for fair use situations, and that's ultimately where the decision gets made.

This article from an entertainment lawyer is instructive:

Despite these cautionary recommendations, filmmakers may rely on fair use to depict trademarked products or to use the name of such products and services in dialogue. A trademark owner cannot automatically stop a film company from showing its brand name in a scene. If the trademark is said or depicted accurately, the use in the film will not give rise to a successful legal action. Using trademarks without authorization will raise concerns for the insurance company, however, and could make eventual distribution more difficult.

But read on:

Particular care must be exercised when a trademarked product is used in a dangerous or offensive manner. Manufacturers may feel compelled to take legal action to show their displeasure and send a message to the public that such use is unauthorized, even if there is only a weak legal basis for the action.

For example, in a 2006 episode of the NBC drama Heroes, a character mangled her hand in a garbage disposal on which the In-Sink-Erator brand name could be seen lightly etched into the metal. In-Sink-Erator claimed that the scene “casts the disposer in an unsavory light, irreparably tarnishing the product,” when in fact such a dangerous act would injure any person. NBC ultimately chose to digitally alter the shot to remove the trademark rather than face litigation. While NBC had done nothing legally wrong, and would very probably have won the resulting lawsuit, the costs required to defend the suit would have been higher than the costs of editing the episode prior to rebroadcast or DVD sales.

posted by zachlipton at 10:32 PM on August 28, 2020 [3 favorites]

Response by poster: Thanks for the answers. To clarify, this is a completely hypothetical question, and I was curious about theoretical rights of the trademark holder. What I'm getting from the answers is that Apple could not, in fact, win a lawsuit based on the fact that "they don't think villains should be using iPhones." They'd have to make some other legal claim.

@metahawk, I was told the first link was wrong and done by lawyers who didn't practice in that field, so confirming the info is essentially correct is a useful answer.
posted by mark k at 10:38 PM on August 28, 2020

This is the lawyer whose piece you quoted. He might have done lots of legal research but not real-world experience.

If you want to show a can of Coca-Cola in your scene, then get a deal for product placement.
If you want to crash a Porsche, you’ll be getting the car from a prop rental outfit that specializes in stunt cars and all the retrofitting for safety, not from a Porsche dealer.
If the car is a main character or an important plot point, then why would you want to give the brand free advertising? Major studios want to make money, not give it away.

Product placement
case studies from a firm that specializes

Fair use matters more in documentary than in scripted.
posted by Ideefixe at 8:32 AM on August 29, 2020 [1 favorite]

What I'm getting from the answers is that Apple could not, in fact, win a lawsuit based on the fact that "they don't think villains should be using iPhones." They'd have to make some other legal claim.

Sure, but that claim would be based on their legal right to their trademark/logo/product design. Their feelings could be "We don't like villains using this" and then their actions would be "...so we are going to go after you for using our logo/trademark/product design" which they are legally allowed to do but might not otherwise if their feelings weren't "We don't like how you did that"
posted by jessamyn at 11:25 AM on August 29, 2020 [1 favorite]

Apple’s choices aren’t based just in feelings but also on potential decreases in sales. If the brand can be considered to be a favorite of unsavory or evil characters, Apple’s marketing dept could argue that sales would drop. If White Supremacists are shown using iPhones, then those who abhor White Supremacists would not want to buy iPhones.
20007 study
2018 study, somewhat related
And for fun, bad product placement.
posted by Ideefixe at 11:25 AM on August 30, 2020 [1 favorite]