Saturday, November 1, 2008

Celebrity Trademarks and Documentary Rights

Dear Rich: In 1982, I purchased all rights to a video tape from a "celebrity" of the 1970s (now deceased). With the celebrity's assistance, we used the video tape to make a documentary of the celebrity's life and times. I own copyright to the documentary. The celebrity's family owns the trademarks to the celebrity's name. The name of the celebrity is in the title of my documentary. Am I infringing on the celebrity trademark?
 I'm so glad you asked. The short answer is "probably not." As a general rule, you can use a trademark (or celebrity's name) for editorial or informational purposes without infringing. Such uses do not require permission because they inform, educate, or express opinions protected under the First Amendment. For example, "Super Size" is a trademark of a big burger conglom and is used in the title of a documentary. (Speaking of documentaries that use McTrademarks, the Dear Rich staff really loved "McLibel"). "Sinatra" is also a federally registered trademark and is used in documentary titles; ditto for James Dean and Marilyn Monroe. The laws protecting celebrity names and likenesses only go so far and you will likely  run into problems if you sell goods or services using the celebrity's name or image, or if you imply the endorsement of the celebrity for any goods or services.