Brand names - is this illegal?

[Marco Leavitt]

Pretty much every chain has official policies against taking pictures in their stores. There's a big difference between chasing people off with cameras and suing after the fact. Like I said, the one who's really at risk here is the manager who gave permission. When I say Starbucks isn't going to care, it's because so far as I know nobody has ever been sued over a situation like this. Sure, you never know when a corporation is going to make an example of somebody, but how realistic is that? You're way more likely to be sued by one of your own cast or crew members no matter how many forms you have people sign, and yet that doesn't keep people from shooting. I would add that if I were making a feature film that I had serious aspirations of actually trying to market, I'd be a hell of a lot more careful. But come on, most of us are working on shorts and features that are destined, at best, to limited release in obscure film festivals. Most of them will only be seen by family members and friends. Shorts, no matter how good they are, have almost zero commercial potential unless you were commissioned to shoot them in the first place, and if that were the case you wouldn't have to deal with issues like this because you'd have a genuine budget. We're so far below the radar a seismograph couldn't detect us. Sometimes I think the only reason a lot of filmmakers even debate topics like this is because it makes us feel like we're a genuine part of the film industry, which sadly, many of us aren't, myself included. The fact is, nobody really cares what we're up to.

To put this another way, I think the risks are minimal, and so are the stakes. Starbucks isn't going to try and bankrupt you. They aren't. Maybe they could kill your movie, but unless you spent your life savings on this thing, is that really worth worrying about, given the miniscule risk? I just think there's more to gain here than lose.

[Dylan Couper]

<<<-- Originally posted by Marco Leavitt :
To put this another way, I think the risks are minimal, and so are the stakes. Starbucks isn't going to try and bankrupt you. They aren't. Maybe they could kill your movie, but unless you spent your life savings on this thing, is that really worth worrying about, given the miniscule risk? I just think there's more to gain here than lose. -->>>

Ah, now we are getting somewhere interesting... Risk vs. Reward! One of my favorite.

Reward:
-A free coffee shop to shoot in. Realiticaly, you could get this from any Mom 'n Pop coffee shop though. The fact that it is or isn't a Starbucks isn't part of your plot/story (I assume).
-Shooting in a Starbucks may lend credibility to your film, as people will think "Oohh, he got permission to shoot in a Starbucks, he must be bigger than we thought he was."

Risks:
-Starbucks sues you. Regardless of the amount, you have to declare bankrupcy because you lose all your money just fielding a lawyer to defend yourself. I think the chances of this are pretty small.
-Starbucks can shut your film down without sueing with a "show it and we sue". A little more likely, but possibly a long shot if you never go outside small festivals. You don't lose any money, but you lose all your time and the cash you put into the film. All the cast/crew hate you because they put all this effort in and have nothing they can show for it.
-The manager gets fired. Well, unless he is your friend, you may not care.

SO here is our choice... The risks are small, but significant. On the other hand, the rewards IMHO are basically nothing you couldn't have with a little footwork to find a different free coffee shop.

[Marco Leavitt]

At least we're agreed that if any response from Starbucks is going to come, it will most likely be in the form of a mean letter from some law firm. Even in that scenario, which I still say is so unlikely as to not be worth worrying about, odds are you could still just recut the movie or reshoot the scene.

[Richard Alvarez]

Marco.

The mean letter is the first thing that comes from a law firm. It's fast, efficient, and usually works. It's the 'shot across the bow' before the suit is filed. It's pretty much standard procedure to show that the corporation or firm was not 'unreasonable' by sending you a nastygram first, before starting the legal process.

So you can run the risk of getting the nastygram, and hope that all they request is a 'cease and desist'. That they don't ask for your 'negative' or original tapes and that they don't file some sort of injunction against further activity on your part.

The sort of thing that is absolutely routine for a large corporation or law firm. The sort of thing they do ten times a day every day of the week, the sort of thing that is so routine and so practiced, that they have forms they fill in to make it quicker and easier to push stuff through the courts. Hey, it's nothing personal, writing letters to stop infringements is necessary to protect the client. They won't lose any sleep over it.... That's what their IP attorneys do. They scour the internet, they look at film festivals, they hunt out infractions, they hire investigators to buy products, and photograph their packaging.... because if they don't - then the mark will slip into 'common usage'. It's why XEROX takes out big ads in trade magazines informing writers "You can't use the term XEROX as a verb... you must use the term 'photocopy'"

You keep speaking from the 'likelihood' of getting a letter or having someone file suit, and you suggest to them that they should take the risk.

I am speaking from the KNOWLEDGE that this is what IP lawyers do for their clients. I know, I've seen it. Paul will probably attest to much the same. I have sued someone for theft of IP. And there wasn't a lot of money involved.

But perhaps I am speaking out of turn. Perhaps you have first hand knowledge of utilizing trademarks, or trade dress in a film that achieved some sort of notoriety. And you were able to stare the corporation in the face and say "Go ahead and sue me, I'm stone broke and therefore judgement proof".


Of course the safest thing to do, is to make such a film and hope beyond hope that it is so bad that nobody will want to see it or show it in a festival, and you can't afford the server space to post it on the internet. In other words, your safe if you feel you have no talent or abilities, drive or ambition.

[Marco Leavitt]

I said earlier that if you were working on a feature that you felt had real prospects for a distribution deal, you'd probably want to be extremely careful. It would be foolhardy to take a risk that could jeopardize your project's future. But most of the movies people are working on are shorts, and are never intended for that kind of wide release. I'm just saying people should keep things in perspective. It's unclear that anyone has ever run into legal trouble for the scenario that we've described. I'm not saying that it has never happened. I'd be very interested in reading about cases where it has. The few cases I can think of where a corporation has swooped down with the full weight of their legal armada, it's been in response to pretty obnoxious behavior, not unauthorized footage in a coffee shop for a 20 minute movie intended for the festival circuit. It would be useful to compile as many horror stories as we could find. That would probably be the most useful barometer for what you can or can't get away with. The rest is just speculation.

Richard, you seem to have the most first-hand experience with this stuff. Can you think of any intellectual property lawsuits that would be relevant for us? I say that out of a genuine desire to know, and I hope this debate is staying friendly. I certainly don't mean to be confrontational. This is an issue that comes up all the time, and I think it's worth looking at both sides. I'm especially curious about accidental product placements. For example, we've got a shoot coming up in a bar and there are probably 200 bottles on display. If we had to tape over every Beefeater and Johnny Walker label, the location just wouldn't be feasible. These are the type of low-level incidents that I'm talking about. I certainly wouldn't advise anyone to go around picking fights with major corporations over trademark infringements.

[Richard Alvarez]

Marco,

Not meaning to be confrontational at all, (hope it didn't sound like that) and really it's about a persons comfort of 'exposure'. As a matter of fact, I know a group in a film school situation that did, in reality, shoot in a Starbucks. The film was shown in the classroom and critiqued. That was the extent of the film ... an excercise in the classroom. The potential exposure to the students? Aproaching nil. Of course, the students also used copyrighted music they had no rights to. The film, as good as it was, was a dead end as it existed.

In that sense, your question about 'how likely are they to sue?" becomes relevant. The better you are at what you do... the more likely they are to sue! (Again, in broad terms.) If all youre doing is showing your film to your family and friends, it's probably a non-issue.

But in this day and age, with the power of the internet... distribution of a three minute film to , well -potentially millions of viewers, changes the game a wee bit.

I think that Paul would probably say the best thing to do, is spend a bit of money on an IP attorney, who will look over your idea and give you an idea of your 'exposure'. From there, you make your decision about how comfortable you are with the level of exposure, but at least you're informed. Admittedly, I have an advantage, I can just ask my wife!

(Okay, I could start a whole different thread on being married to an IP attorney.)

And belive me. I do ask her. I am dealing with cutting a documentary I recently shot "American Jouster". I have legacy footage that I may or may not be able to use, musical performances that float in and out of scenes shot at a renaissance festival, live action shows produced in closed venues... It's a can of worms. I'd hate to have to pay her what she's worth.

(Start punch-line here.)

[Pete Bauer]

Richard,
Thanks for trying to keep this thread on a more factual level. Seems these Intellectual Property discussions are prone to devolve into personal opinions on how far someone else could go without getting sued.

All,
I'd like to reiterate and comment further on two related points that have already been made in this thread:

1. Daniel specifically asked about legal issues, NOT what he can get away with. And although nobody here is going to go so far as to provide formal legal advice via internet, I'm sure there are lots of anecdotes and info to share that don't involve IP rights violations, or at least portray them for what they are. I applaud him for caring enough to ask about how he can do things properly/legally. Heck, if we don't care about doing things honestly, we don't really have much to write about here...just go do it and cross your fingers!

2. DVinfo is a friendly, honest place (if I'm deluded about that, fill me in so I can scram!). Yup, there are plenty of grey areas worth discussing. But advocating willful violation of intellectual property rights is not appreciated, whether or not one can "get away with it." A lot of people on this board make their living by creating IP, so that kind of discussion is sorta like bringing a six pack of beer into your AA meeting.

Thanks for reading.

[Dylan Couper]

<<<-- Originally posted by Pete Bauer :

2. DVinfo is a friendly, honest place (if I'm deluded about that, fill me in so I can scram!). Yup, there are plenty of grey areas worth discussing. But advocating willful violation of intellectual property rights is not appreciated, whether or not one can "get away with it." A lot of people on this board make their living by creating IP, so that kind of discussion is sorta like bringing a six pack of beer into your AA meeting.
-->>>
mmmmmmm beer.....
err, anyway...

One of the problems is that 90% of the people out there either know nothing about IP law, or are completely misinformed about IP law.

The other problem is that the offenders don't consider it wrong, or illegal, like downloading music or software. And those that do really just don't care, or are too lazy to take the proper steps to do it legit. (I think that's the case for most offenders).

[Marco Leavitt]

Okay, I'm feeling chastened. I hereby repent my evil ways. Any Starbucks executives out there who may be reading, please take note. :)

[Bob Costa]

<<<-- Originally posted by Marco Leavitt : I'm especially curious about accidental product placements. For example, we've got a shoot coming up in a bar and there are probably 200 bottles on display. If we had to tape over every Beefeater and Johnny Walker label, the location just wouldn't be feasible. -->>>

The reality is that you just do the best you can to minimize aggravation in your life. Sure you can't tape over every liquor bottle, but you could have a couple of assistants spend five minutes and turn all the labels towards the wall (or away from the camera). You turn off TVs and radios, paste up a piece of chroma over the TV screen if you need it to be turned "on", so you can add some public domain or fake footage in post. You keep your eyes open as best you can while scouting and shooting. You will get good eventually at spotting logos in a room in 1.3 seconds. Its always a matter of degrees. If you make every effort, you will probably be okay. If you have to ask us, you should probably ask the trademark owner. WIth Starbucks, if you had asked the store manager to SIGN a location release (verbal permission to shoot means nothing later on), you would have found out that he/she was not going to sign anything and you had to talk to someone higher up the corporate chain. If you think you can "get by" you may get surprised later when you make this great movie and film festivals reject it for lack of clearances.

There are more lawyers than filmmakers in this country. Just keep your life simple so you can make movies instead of feed lawyers. When in doubt, leave it out.

[Dylan Couper]

As Pete said, we are all friendly. :)
Let's carry on.

[Joe Carney]

btw, what most of you are discussing is why you should get errors and omissions insurance, in fact if you don't have it, you probably won't get distribution. And if you have any corporate logos or visible trademarks in your film, you will be expected to have release forms or contracts permitting them or you probably won't get distribution. Distribution companies do not want to get pulled into a lawsuit that you caused.

And even with all that, someone might sue you anyway. Apparently it's gauranteed if you make a bunch of money.

[Pete Bauer]

Joe,

That's something I wonder about, having never had occasion to buy one of these kind of policies. The insurance must provide SOME reasonable amount of protection for "stupid mistakes" or hardly anyone would buy a policy. But, putting myself in the insurance company's place, I'd probably write my policies so I wouldn't end up paying through the nose for every idiot who decides to use an entire Beatles album for their soundtrack because they figure the big ol' insurance company will protect 'em ... the policies must have some pretty significant limits and exclusions? Anyone with experience with these policies have any stories to share?