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Everything I Know About Trademarks in Movies

May 31, 2012

Here’s what I know, which is what everybody knows, about trademarks in movies: nobody knows anything (stolen out-of-context from William Goldman).

Here’s what I think I know about trademark in film, from a slightly educated and largely figuring it out as I go along point of view. First off, we’re talking about narrative fictional films. None of this applies to documentaries, which have a whole different set of rules (which are largely summarized by – show any logo you want in a documentary).

The common wisdom in low-budget filmmaking is that you have to clear every trademark that you use in your film. If you show a bottle of Mug Root Beer in your film, you need to clear it with The New Century Beverage Company so you don’t get sued for using their trademark without permission. You either have to get permission, or you can’t show their logo. I once got paid pretty well for blurring out the logos on trucks that drove by in the background of scenes.

If you ask a lawyer or a filmmaker about trademarks, most of them will tell you that this is what you need to do, except for the ones who will tell you the exact opposite – that you’re (mostly) free to use trademarks in your films.  Lawyers (the more expensive, the more often) will especially tell you that it’s all right as long as you’re not disparaging the product. So if you have someone drinking Coke, that’s OK, but if you have someone dying from the poison in Coke, that’s iffy, and if you suggest the Coke in its natural form is the poison… don’t do that.

So who’s right? In this case, I think everybody. The expensive lawyers will tell you to go ahead and use the trademark, and they’re right. You probably can. Here’s the problem. No one’s really going to sue you for using their trademark because the Coca-Cola Company doesn’t have to sue you. They’ll send you a cease-and-desist letter if they want to, and you’ll remove the scene or the shot or do something to obscure their trademark, because you can’t afford to go to court. How do I know you can’t afford to go to court? Because you’re reading my blog about trademarks instead of talking to your lawyer.

This is why the higher end lawyers tell you it’s OK in their seminars and books, and why no one listens to them. The expensive lawyers work with clients who can afford them to send a letter back to Coke, and continue arguing it as long as it takes. The longer the better, since the lawyers get paid by the hour. But you and I can’t afford to have an outstanding legal issue like a cease-and-desist letter when we’re trying to sell our film to a distributor.

You probably can use the trademarks legally, but no one in our budget range wants to risk that, so you don’t.   Or you get clearance from the company, even though you probably don’t need to. It’s not that you can’t use their logos –  it’s that you choose not to have the hassle.

The other reason to avoid trademarks is because you want your work to be salable. If you have a series of trademarks throughout your film, it’s one more reason for a TV channel not to put your film on their network – so as not to give free advertising to people who might be competing with their own ads. For about 30 seconds we considered trying to get someone to buy advertising on Table at Luigi’s and buy a block of time on the Food Network, but then we realized the number of conflicts we’d have in our product placement within the film.

But all this is just my opinion – I’m not a lawyer, just someone who’s dug into this and come up with an opinion. And you know what those are worth…

By the way, here’s link to Logorama, an awesome animation that uses a lot of trademarked logos in very disparaging ways. The rumor was that some festivals were afraid to play it because they worried about the potential lawsuits. This is easily one of the most defensible uses of a trademark, ever – it’s obviously satirical and critiquing the corporations (and their constant use of logos and mascots) – the filmmakers are so in their right to use the logos, it shouldn’t even be a question.  Also, it won 2010 Animated Short Oscar.

  1. May 31, 2012 at 8:27 am

    It’s like being back in school again. Though it just wasn’t the same without seeing you tick off each point on your clipboard and finish with a sigh of completion. Thanks, Joe!

    • June 4, 2012 at 12:35 pm

      I’ll put up a shot of me and a clipboard sometime this week. :)

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