Beer signs in the bar
 

I know that the question of getting releases for people to be in your films and also that the question on putting copyrighted music in your films has both been asked. I'm asking a new question (i think). Please point me in the right post if not though.

I will be filming inside a local bar. I've got permission from the owner and will be getting them to sign a location lease. I will also get anyone in the bar at the time who wishes to be in the short to fill out a release form as well.

What about the beer signs though? I know when I watch TV they always fuzzy out the logos and such, but I never see that in films. Do I need to worry about getting a Bud Light sign in my film?

Product Placement.
 

The main reason you see products buzzed out of the shot is because they have not paid or contributed product to the show in which they are being used.

Usually in a movie, if you see a product that is prominently displayed on the screen instead of an incidental glance such as a billboard, sign or business in the background, it is because the company has cut a deal with the producers to provide product and/or money to the company in exchange for the exposure otherwise it would pretty much amount to free advertising.

An example would be Reese's Pieces in "E.T.".

In films, sometimes you will see products that you recognize from the packaging design but if you look closely, instead of saying Coors, for example, it will say Beer. Sometimes the name will be altered in some way so that it is not recognizable. This is known as "Greeking". (I guess it comes from the saying "It's all Greek to me"!

We've checked with our Legal Bureau and have been advised that there is no harm in using a product prominently as long as the product is not being shown in a negative light.

Good luck.

RB

I'd check again. That's a bizarre comment to make. You're suggesting that anyone can use, for example, the "Budweiser" trademarked logo at their discretion "as long as the product is not being shown in a negative light"?
Absolutely No Way. Anheiser-Busch gets to say when and where their logo is shown. Not getting explicit permission is playing Russian roulette with your film. If they see it and decide they want it out, you'll have to take it out in post and possibly face legal action anyhow.
NOT TRUE. When you see a product name or logo masked out, it's most often because the filmmaker did not have permission to show it. Unless you're making a large budget feature film with an established cast and director, no one (with any sense) is going to PAY to have their product shown. You will have to get their permission, and possibly pay THEM a small fee.
DON'T use any trademarked products or logos without permission. It's an indefensible infringement, and eventually you'll get slapped hard.
Not sure who this "Legal Bureau" is, but their advice is dead wrong.
But don't take my word for it. When you take your finished film to a distributor, they'll ask to see your releases, including those for the beer signs...

Bizarre? Legal who?
 

Sorry to disagree with you there Dan but, if I have to take legal advice from an "Indie Filmaker" or a stack of lawyers (Legal Bureau) who represent and protect a major metropolitan police department, I think my choice is obvious.

I guess that your way of thinking also pretty much rules out shooting anywhere outdoors where anyone's sign is visible whether it is a billboard, gas station sign, Coke sign, McDonald's, Taco Bell, etc...etc...etc... Oh my GOD, what if a jet liner flies by or a taxi drives into the shot and by some stretch, I can see the company's logo? Jeez...is that a Polo shirt, there's the little guy on the horse...a LaCoste...I can see the Alligator, clear as day!

Catch my drift?

But, since I've only been on a couple of sets in my career and neither of us are lawyers, perhaps Adam should retain a professional for any real legal advice.

RB

Dan,

On this one I'm pretty sure your wrong. If you take Buds logo and use it for promotion that's one thing, but if your in a bar and their sign is in sight that should not be a problem.

I know someone will straighten this out. Hugh?

Mike

Retaining an IP attorney is the most sure advice, definitely!

Rick, I'm not sure about how much this extends to local/county/state jurisdictions, but despite definitely NOT being a lawyer either, I have in the past found and read references indicating that the federal government and bona fide educational institutions have somewhat more latitude under "fair use" for internal use of copyrighted material that otherwise would require the explicit acquisition of rights...it is still an infringement by the government, but the statutory and case law limitations tend to keep authors from claiming against the government. Not at all sure how that might apply (or not) to trademarks.

Is it possible that the legal team's advice in your jurisdiction is affected by a governmental limitation? In other words, if you're doing video for the police department, perhaps anything you shoot is covered under "fair use" whereas if you took the same shot for your personal indie, you'd be at more risk (liable either way, but with greatly different risk levels)?

I'm under the impression that trademark law, which is more the issue here, is a whole different kettle of fish than copyright...and we really need the lawyers to chime in! Here's the nearest I could find in existing threads on trademark, and it was less than a complete and definitive review of "Trademark Law for DV Enthusiasts":

http://www.dvinfo.net/conf/showthread.php?t=40588

My only advice: first, listen to your IP attorney, second, err on the side of caution. Third, then sleep well at night!

Hi Pete.
 

I was addressing Adam's initial concern of filming somewhere where the signs are in the background, not being prominently displayed in the shot or being treated as a "product shot".

The case I cited with my department was not for internal use only, it was for air and it involved, in a tight shot, of all things, a box of Krispy Kreme donuts! (OK, I'll wait for the laughter to die down.)

We are very aware of the "Fair Use Laws" and the parameters that we can work with and this had nothing to do with Fair Use.

I understand the point of actually "featuring" a product in a film, but shooting in a location where there are multiple signs whether beer, soft drinks or otherwise would be impractical if you had to get a release from every copyright holder as far as the eye (or the camera) could see.

WHERE'S PAUL TAUGER WHEN YOU NEED HIM??? :)

RB

In fact I'm 100% right about this. If you pay attention to professional movies and TV shows, you won't see many product logos; those you see will have been cleared. In many cases, the trademark owners may not feel it's worth it to go after you, but it is infringement, and if they want to, they can.
By the way, if you get sued, it won't be your lawyer's house they take, it'll be yours.
Yes, it's a total pain to shoot in a public place and not show trademarks--but you have to do it--that's the way it's done.
There is just no loophole or wiggle room here. If you use someone's trademark without permission, you are infringing (outside of the very narrow 'fair use' area, which wouldn't apply to these projects). The only thing that might save you is if the owner doesn't find out and/or bother with it. Pretty dangerous water to tread in.
But don't take my word for it, or a lawyer's. Go to a distributor and tell them you have a film and there's a McDonalds sign in the background and is that a a problem? THEIR lawyers will say YES, definitely, and tell you to get permission or lose the sign. And rightly so.

Thanks for all the responses. Halfway through the discussion I said, "Well Adam, let's just do a shallow DoF and blur them signs out!"

That should solve everything!

However, what happens when someone films a Chevy Nova which then passes a Buick, which the passes a Porsche.. and so on and so on. Does the filmmaker need to get persmission from every car manufacturer too?! I mean the logos can be seen like say a slow pan in a parking garage. The Car emblems can be seen in plain sight.

For those reading this thread, consider that Dan and Rick may be talking about apples and oranges in terms of what is being shot. I'm not sure what Rick was shooting that his lawyers were involved with and it may have considerably different circumstances than the original poster's situation. The safest course is to consult a lawyer about your individual project, but even safer still... Just take the signs down or turn them around.

I see IP attorney mentioned.. What does IP stand for? For me it stands for "Internet Protocol" but I have a feeling that that's not what that means in this situation, ;o)

Intellectual Property

Mike

[Mighty Mouse theme plays in background . . . ]

There are only two concerns in using identifiable trademarks and trade dress in film and television projects:

1. Trademark infringement results when there is a likelihood of consumer confusion as to source, sponsorship or affiliation. If a viewer is likely to believe that the CocaCola Corporation sponsored a film because a character drank a can of Coke in a scene, then trademark infringement results, and the producers of the film incur liability. Likelihood of consumer confusion, which is the touchstone of trademark infringement, is a fact-specific, somewhat involved determination involving 7 (and in some jurisdictions, 8) distinct factors. In some cases, it is a somewhat fuzzy analysis, but in others it is usually possible to make a fairly accurate prediction. However, in all cases, the cost of defense of an infringement action ranges from $100,000 (if you're lucky) to $300,000 and potentially lots more. For this reason many producers take the safe road, and either blur the mark or come up with fictional brands.

2. Trademark dilution and tarnishment do not result in damage liability (usually) but can result in issuance of an injunction. Dilution occurs when the "source-identifying character" of a mark is ameliorated. For all intents and purposes, dilution constitutes trademark infringement minus consumer confusion, and the usual infringement analysis applies. Tarnishment occurs when a mark is brought into disrepute, e.g. using it in connection with a porno film. Dilution and tarnishment actions cost just as much as infringement actions.

As Dylan suggested, the safest course of action for a producer is to consult counsel -- determination of infringement, tarnishment and dilution liability is intensely fact-specific, so there's no real rule of thumb to apply. An IP (intellectual property, not internet protocol) lawyer can assist.

Thank you, Paul!

RB

One addendum: trademarks can, in some circumstances, be protected by copyright as well, i.e. a design mark can also constitute a work of authorship. One that comes to mind is the drawing of the Smith Brothers that is used as a trademark for Smith Brothers cough drops. In that instance, all the normal copyright concerns apply, i.e. no unauthorized copies, no preparation of derivative works, etc. without permission. Of course, all the standard defenses, including fair use, would apply.

Paul,

Funny, I asked my wife (IP Attorney) those same questions this morning, after reading the thread... and I could of sworn she answered VERBATIM with the same comments.

Great minds think alike? ;)

Thank you Paul. You're getting into some pretty heavy stuff there. I will read it over again, and hopefully it will sink in.

Richard,
How much does it normally cost to consult an IP lawyer? I have sunk all of my funds into my equipment. I'm paying my cast and crew nothing. I would love to speak with an IP attorney, but only if I can afford it. Otherwise, I'll just blur out the signs with a shallow DoF or just plain take them down.

Thanks again all!!!

Adam,

Paul's advice is the best 'general' information you're going to get. If there are trademarks around, avoid em, change em, minimize em, and never defame em are all key points. So essentially, you just heard from an IP attorney when Paul posted. (Which is always good sound advice, and worth plenty)

You can get legal advice for low/no cost from "Accountants and Lawyers for the Arts" programs in some cities. Houston has one. Here in the Bay Area, there is FilmArts and BAVC that can assist you in answering questions.

The point is to get advice BEFORE you shoot. You don't want to shoot, and THEN show it to an attorney who says, "Oh yeah, that'll put your butt in a sling..." only they say it in fancy words. Well, not really... my wife would say "That'll keep you awake at night..." but you get the idea.

Awesome. Thanks a ton!

This film that I'm doing is just a short film, probably about 5 minutes long. I'm not going to be seeking distribution, but will most likely be submitting it to short film contests.

Good news though. I found a guy who composes music. I think he's going to score my films now!

What about the ambient music? Surely a bar will have recognizable songs playing in the background.

Adam, you'll have to be very careful with the Chevy Nova because just filming the car's name will cast it in a bad light if any in your audience are spanish speaking. When the Nova came out, Chevrolet couldn't figure out why the bestselling car in their lineup wasn't selling at all in Mexico until someone told them 'no va' in spanish means 'won't go'. Not so great name for a car, some might say self-inflicting 'bad light'.

I'm guessing if Adam has the permission to shoot in a bar, he has enough controll to turn off the music...?

I'm asking for myself! I will also be shooting in a bar/restaurant, and I am not sure what control I have over the music. Let's forget about continuity issues for a moment; is it legal? What about a car driving past with the radio on?

Most bars use Jukeboxes. Just ask the owner to please keep it turned off for the duration of the filming. That's all there is to it.

Plus, if you are going to add music say from a local band that wants their music put in the movie, just have the some (not all) bob their heads occasionally to the beat of the music. Or you can even play the song in the background for ambient sound and fix it in post.

Man, it seems like this debate comes up every six months or so and never feels resolved by the time it runs out of steam. By now, a couple of things seem pretty clear -- It's best to play it safe and avoid shooting logos, but corporations don't care. At least none of them appear to have ever sued an independent filmmaker over the use of their products or logos in a film. Still waiting for an example to the contrary.

But that doesn't mean you can just go around infringing people's trademarks. If your project is ever to see commercial release, supposedly there's a good chance you're going to be required to get E/O insurance. That basically protects the distributer in the event that you failed to get all your clearances. The lawyer at the insurance company is the one who will burn you. I would think this is the reason studio films and TV shows seem to be so obsessed with not showing products unless they're paid to do so.

So to me, unless you're really planning to try and get something distributed commercially, I don't see any reason to overly stress about this. Try not to have logos in your shot, but with DV's enormous depth of field this can be tough. Whatever you do, don't portray somebody's product in a bad light. You definitely don't want to show somebody getting poisoned by a can of Coke.

Marco make a good point. Risk increases with exposure. If you count on your film never seeing the light of day, don't worry about a thing. If you count on your film getting good festival distribution, possibly making it into DVD release, or becoming your 'calling card'... watch your back.

I will for sure keep all beer that is being drunk in clear glasses.

Do many 5 to 15 minute short films make it to distribution?

"Distribution" is a funny word. There's a company looking to buy two-minute movies to play on cell phones... do you consider that "Distribution"? Sure. Will they buy your film if it's got copywritten music, or defamed trademarks, or broadly visible logo's? I doubt it.

Marco's comment about never hearing about this problem, is a bit of a straw man. It's easy enough to find examples where the big companies have sued successful films... (Debbie Does Dallas is the most often cited example)

http://www.patentfla.com/articles/trademark_parody.htm
http://www.chillingeffects.org/trade...?NoticeID=1670
http://www.therightscompany.com/infcases.htm

But you rarely see small guys hauled into court. Basically that's because there are NO records of cease and desist letters. If you are a big corporation, and see an example of your trademark being used in a small film, for instance on a web site... You first send a cease and desist letter. If the webcaster (in this case, the 'distributor') is smart. They take it down. Case closed, on to the next one.

So there is an arguement that might be made by the intemperate - "I'll do it untill they ask me to stop...Or I get caught" Frankly, I wouldn't advocate that course of action. A cease and desist letter and your compliance in no way waives their right to sue.

The above link to 'the rights company' has some examples, includint the 'small guys' who used Laurel and Hardy music, and the people who were distributing videos of the STAGE production of Pygmallion. Also, I can state with absolute certainty, that schools and churches have received C&D letters from rights management houses for performing church pageants without paying for the rights to the music or plays. They had to pay restitution, WITHOUT going to trial. So yeah, little guys get hit, and have to pay WITHOUT going to trial in a law suit that gets major publicity.

Off-topic question -- please post it in a new thread. Thanks,

Cool links Richard, but I didn't see anything even remotely related to accidental product placements like the beer sign in question. I also have to question whether large companies even bother sending cease and desist letters over things like that. You'd think we'd be hearing all kinds of anecdotes if that were the case.

Marco,

See my new thread "Will I Get Caught?" for my thoughts on why you don't often hear about the little guys.

The other post speaks primarily to intentional use. Incidental and accidental use are always iffy. Like I said in my earlier post. Driving past a McDonalds, or getting into a Ford Mustang are low/no risk. SETTING the film in a McDonalds or claiming all Mustangs are hazardous are a huge risk. The devil is in the details.

Again, if you can avoid, remove, alter or minimize, do so.

On a side note, I've always wondered if Criterion had to secure a release for the very prominent use of a bottle of Johnny Walker Black in the DVD edition of the orignal version of Diabolique. You might say that product played a crucial role in that movie. ;)

if they're neon signs a little electrical tape can go a long way. Just think back to your younger days when a "B" became an "A" by just blocking out the bottom portion of the letter. Of course I never did that, but I know people who did...

Do a search on my name and "incidental reproduction." I've discussed this a lot, here. Short answer: reproducing ambient music in this context will be copyright infringement, absent a fair use defense.

Opa!
 

Hey Nick!

That's a perfect example of "Greeking"!

RB

I'm always fond of checking out the creative greeking done by the art department on the various shows I work on. I recall a massive front loader used in one scene having the brand name"Caterpillar" writ in large letters down the side; it became "Oaterpillar" with a bit of black tape...!

If you take a look at the shot from "Scrubs" on my DP reel (here), around 2:15 in or so, check out the bottle on the left side of the screen--it might look like it says "Corona", but read again...

My favourite set sign in a bar was in Blade II but it didn't appear in the theatrical cut. If you watch the DVD commentary the very entertaining Guillermo del Toro keeps on referring to a sign they had over a peep show hallway called "F---ingham Palace". It sounded like they had a gas making that movie.

That's a funny one! On "Office Space", the art department surprised Mike Judge with the sign (quickly glimpsed in the movie) of the main character's apartment complex: "Morningwood Apartments". He loved it.