trademarked phrases
 

Using Donald Trump's idea to trademark the phrase "You're fired." as an example, are there any legal issues with using trademarked phrases in a movie? In other words, if I wrote a scene in an office, and the boss fires an employee, would I have to worry about getting permission to say "You're fired." in the scene? Or does this just apply to t-shirts and stuff like that?

Also, on a similar note, would there be a need to get DC Comic's permission to talk about Batman? I'm guessing the logo could not be used without the proper releases, but how about just a conversation about the character? Or maybe, and I promise this is the last one, showing a recognizable action figure on screen or a character wearing a Batman shirt?

I know these seem like corny questions, but I'm actually trying to get a feel for what flies and what doesn't. It seems like legalities are just a lot of "well yeah, but..." kind of situations that may never attract the company's attention, or could easily squash a little guy like me. I just like being educated on what I'm getting into and what should be avoided.

You can certainly talk about aspects of popular culture without permission. Logos however are generally a no-no, even if they're incidental to the scene.

The whole "you're fired" thing is so stupid to me. Not from a legal standpoint, I mean just personally. But no, Trump cannot stop you from having a character say "you're fired" to another. He can trademark the phrase insofar as it represents him or that show, however.

Thanks Peter. I have a few more questions if you don't mind.
Does showing logos in the video follow the same rules as people in the video? By this I'm referring to "if you can't recognize them, you don't require permission." What I'm getting to is that on Seinfeld, Jerry had a Superman statue in his apartment that was always far enough away that the symbol wasn't recognizable, but the statue was easily recognizable as Superman... who is trademarked. Did he/would I have to get permission to do this?

Thanks again for the help, Peter.

I'm not sure that he had to but I'd take a big bet that he did, reason being there's a LOT of superman references in Seinfeld. Remember the race episode? They actually used the Superman theme.

I remember doing some research once on this sort of issue in the context of copyrighted paintings in movies, or showing people watching a movie in the movie. As I recall the issue was far from clear cut, but the trend seemed to be that permission was required. I don't know the specifics of how it works for trademarks but just seeing as how rarely you can see prominent logos in movies, it seems to be something to be avoided. Now, obviously, you don't have to get permission from every car company whose cars are in your shots, or from the makers of the clothes people are wearing, etc, so there's a line to be drawn at some point and I'm not sure exactly where but I'm sure other people here would have a better idea.

Trademark infringement results when there is a likelihood of consumer confusion as to source, sponsorship, endorsement or affiliation. There can also be a concern with dilution, which either lessens the source-identifying character of a trademark, or causes tarnishment. With all that said, a trademark like, "you're fired" _if_protectable_at_all (and I'm not convinced that it is, not withstanding The Donald's efforts to do so), would not be infringed, simply because a character said it in a movie. There are a couple of applicable doctrines that would permit it: descriptive fair use allows use of trademarks in their non-trademark sense, e.g I could use the words "best buy" in an advertisement without infringing the electronics retailer of the same name if I were to say, "You'll find the best buy for your dollar at Smith's Department Store." Another concept which would apply is functionality -- you can't monopolize a common functional phrase like "you're fired." The idea is similar to allowing someone a trademark in a letter (though I once had Kellog's send a cease-and-desist to one of my clients in an unrelated business because they had a trademark something like "Big K" or "K Line" (I don't recall now). Kellogs was wrong, I told them so, and they went away.

No and Yes. If there is a chance that consumers would think DC Comics endorsed or sponsored your film, then yes. Otherwise, no, but only in the context of trademark. Including the Batman character image, however, would infringe the copyright. There is also a judicial gloss on trademark law (meaning an unwritten, judge-made rule) that says, "If it's dirty, it's infringing." The best example I can think of is Debbie Does Dallas, the producers of which were found to infringe the tradedress of the costumes of the Dallas Cowboys Cheerleaders. If the film wasn't "dirty," I think the decision would have gone the other way.

Me, too. Whatever protection that mark would get would be extremely narrow, e.g. you couldn't use it in connection with a reality television show in which characters got dismissed, etc.

No. See above, re: likelihood of consumer confusion. If the use isn't confusing or dilluting, you don't need permission. However, this is a determination which a layperson should _not_ attempt to make, as the test for likelihood of confusion is complicated and arcane.

Probably not, though that particular use wouldn't result in consumer confusion and therefore wouldn't have infringed the trademark. It was, however, copyright infringement, albeit de minimus.

And for that, they had a license.

While we're on the topic of Batman and statues, discuss this one amongst yourselves:

http://www.benedict.com/Visual/Batman/Batman.aspx (this site has some interesting IP case backgrounds)

An excerpt:

"Warner Bros. claimed that since the film crew had permission from the building owner to film at the site, they had a right to include in the shots the sculpture which was located on the grounds.
However, mere possession of copyrighted material does not confer any of the copyrights upon the possessor [...] the producers of Batman Forever would be obligated to seek a license from the copyright holder. Consequently, permission must be obtained from the copyright holder in order to reproduce images of the sculpture. Warner Bros. did not get a license to publicly display this work, and consequently Andrew Lester filed a multi-million dollar against Warner Bros. for copyright infringement."

There are other extenuating circumstances in this case (the scupture was also reproduced for a secondary set), but the basic gist is interesting --- although the site doesn't mention whatever became of the case...

"The best example I can think of is Debbie Does Dallas, the producers of which were found to infringe the tradedress of the costumes of the Dallas Cowboys Cheerleaders. If the film wasn't "dirty," I think the decision would have gone the other way."

What ever happened to the first amendment? Sheesh.

"It was, however, copyright infringement, albeit de minimus."

That doesn't make a difference, does it? As I recall (it was awhile ago), even things like paintings in scenes could be actionable.

<<<-- Originally posted by Peter Moore :As I recall (it was awhile ago), even things like paintings in scenes could be actionable. -->>>

See my post above yours, regarding an object of art appearing in a film

What became of the case is what I'd like to know. :)

Possibly still in limbo...

Quick search on the subject finds:

1996 decision: http://www.usc.edu/isd/archives/la/p...ackground.html

1998 update: http://list.msu.edu/cgi-bin/wa?A2=in...jmc&F=&S=&P=54 (search page for "Leicester")

2000 Appeal: http://caselaw.lp.findlaw.com/script...ase&no=9856310 (Uh, you might want to make a pot of coffee before clicking on this one. I'm too tired to read it right now...)

Ok, so they wound up holding the sculptures were part of the architecture.

I'd still, for my own sake, be interested to know the rules about copyrighted imagery appearing in movies in general, like paintings, posters, etc. I mean, surely you can't be expected to obtain permission for every single minutia of copyrighted material that shows up in a picture, from the smallest images on clothing or boxes on down.