Trademark Law

[Stephen Boss]

Does anyone know what the law is regarding showing trademarks in films? For example, if I'm filming a documentary and one of the people being focused on is wearing a Nike t-shirt, do I need to get permission from Nike to be able to show that footage?

[Paul Bruening]

Boy, oh, boy,

 

You're in vague territories here. Theoretically, documentaries fall under the journalism standards which tolerate signage including trademarks as permissible in the frame if they are coincidental to another primary subject and/or are displayed publicly. Yet, more and more, you see those parts of images blocked out by mosaic or fuzziness when presented on TV. Since blocking out parts of a frame are easier in the digital age, I think producers are doing it just to avoid even the possibility of liability. Ultimately, it has to do with attitudes. If your production shows on such a limited basis that that company will never even know they are in it, or if you are so small fry that they won't care, or if they deem the inclusion of their TM as beneficial to them... You see, it's not very clear cut. We avoid all signage in our features but you don't always have that luxury in a documentary.

[Guest]

Even on the biggest of features you can't avoid trademarks. Try shooting in Times Square with no logos in the BG. You can't blur them all out.

 

If showing a trademark and then saying some thing bad about the company was an issue then 60 Minutes would be sued weekly.

 

As Paul pointed out you would have increased 1st Amendment protection as a doc maker.

 

The other major issue is E&O insurance. If a broadcaster won't buy your show without E&O, then you have to get it. The insurer may insist that every logo is blocked out regardless of what the 1st Amendment says.

 

It's a real can of worms. Most of the time these giant corporations send letters to people hoping for the effect of "chill." The producer will get the letter and say, "well I can't fight these guys they have so much money."

 

In my case I have received half a dozen of these types of letters from various lawyers. Total number of times I complied, zero. Total financial loss to me, zero.

 

Why? Because I send back a long letter citing case law that is on my side and my determination to fight in court if needed. Next thing you know I never hear from them again.

 

"Chill" didn't work on me, so now the company is left to go through the time and expense of filing suit and meeting their burden of proof. All of this costs a lot of money, and they have no guarantee of winning in court. If some one did win against me in court I would appeal and drag it out for years.

 

But that's just me. I haven't paid a speeding ticket in years either because I fight every one to the bitter end. They usually get tossed out because my rights to a speedy trial get violated.

 

I also took on a multi-million dollar corporation (CTV), a US bank, and the IRS two times. I won handily in every instance. Problem is it takes time and determination to win, two things most people don't have.

 

R,

[Robert Glenn]

Don't take my word but to my recollection of media law class if you hvae no control of the sound or image that is in the frame, then you are not in any way liable. If trademarks are incidental and not the intended focus of the shot, then you are not liable..