Sunday, November 28, 2010

You can see trademarks in my film: Is that okay?

Dear Rich: I just got done shooting the major portion of my new short film Quick Shop, which takes place in a convenient store/meat market. There are several shots where logos and brand names are fairly apparent, and I'm wondering if I should be worried. Take this shot for instance. You can distinctly see most of the Marlboro name and logo in the back. Other shots include images of Shur Fine, Martin's Potato Chips and possibly a Pepsi logo. I did my best to cover up really obvious brand names and logos, but I guess I missed a couple. So am I going to run into any problems when I go to submit to film festivals, or is something like this OK? I mean, it's not like I was going out of my way to include this stuff. I'm pretty sure I can fuzz out these images, but I'd rather not.We'd rather you didn't fuzz them out either. As a general rule, there's nothing wrong with including trademarks in a documentary or fictional film. In both cases, your free speech rights should trump someone else's trademark rights. That was the case when Caterpillar sued Walt DIsney over use of the Caterpillar tractors and trademarks in the movie "George of the Jungle 2" (Alas, no Brendan Fraser in this direct-to-video sequel!). A district court ruled there was no trademark confusion or trademark dilution (Caterpillar might have been displeased by the fact that the bad guys in the film used caterpillar tractors). By the way, the amazing 2010 Academy Award short,Logorama,used over 3000 trademarks without permission. We should also mention, there's a case in which the makers of a film could not use the title Dairy Queen under various trademark theories (though we wonder about the logic of that case.)
Ennnyway ... Even though the law is likely to be on your side, that doesn't mean you won't run into problems. Distributors may require trademark clearance regardless of our legal explanation, and the same may be true for networks, festivals, or if the film is purchased. (Hopefully, if the film is sold, you'll be able to afford a clearance expert to help you.) At the same time, a company may feel that its trademark is being exploited for an improper association and fire off a cease and desist letter. Even though chances are good that you would eventually prevail in court, you may not be capable of overcoming the bullying tactics (and be forced into fuzzing your signage). By the way, you can further lower your risks of getting a C&D letter by avoiding any implication that the other company endorses or is associated with your film -- that is, by not using any other company's trademarks in your film's advertising, posters, and possibly even the trailers.