Someone will have to help me here, but I remember a
case where an eyewear company sued because a model in
a print ad was wearing their eyewear without
permission. I think it went poorly for the ad company
in the lower court at least - anyone want to fill in
and correct my memory on this case?
Otherwise I agree with you, Robert. While the isue is
different, I think the analysis in the Welles v.
Playboy case may apply. The use was in a truthful
manner.
Hope that helps,
Keith
- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
> I fail to see how, showing a coke can in a movie,
> for example, can dilute
> the coke mark. The mark is on the actual product.
> Although I have not
> reviewed the case law, I would have to believe that
> the use of an actual
> product as an incidental prop in a movie cannot be
> actionable. Further,
> most companies would WANT such use in many
> situations, as it amounts to free
> exposure.
>
> If anybody has contrary case law, I would be
> interested in a citation.
>
> -Bodi
>
> ----- Original Message -----
> From: "Safdar Jafri" <safdar01[_at_]hotmail.com>
> To: "CNI-COPYRIGHT -- Copyright & Intellectual
> Property"
> <CNI-COPYRIGHT[_at_]cni.org>
> Sent: Thursday, June 12, 2003 11:17 AM
> Subject: [CNI-(C)] Re: [CNI-(C)] Re: Movies and
> Photos With Inanimate
> Objects (orBuildings)
>
>
> > i would like to add to what professor ochoa has
> said. I think he's right
> to
> > a certain extent that trademark use must be to
> identify the source of
> goods
> > or origin or to imply the approval or sponsorship.
> But there have been
> cases
> > where infringement or passing off was held to
> occur even if the
> unauthorised
> > user seemed to create a mental connection in the
> minds of general public
> > with the actual owner of the mark and most
> interestingly, where the goods
> > had little or no connection and public was least
> likely to be confused on
> > the origin of goods. These cases were simply
> decided on the basis that the
> > unauthorised use showed a 'connection' or 'link'
> between the user and the
> > owner of the mark. What has been making the
> situation even more complex
> > since is the introduction of laws such as dilution
> and tarnishment which
> do
> > not even require that 'connection or link' for
> holding the unlawful user
> > liable. The use also may not be in the same or
> confusingly similar range
> of
> > products for which the mark is known; thus
> confusion or deception is out
> of
> > the window as well. The only two prerequisites for
> dilution and
> tarnishment
> > are: the mark involved must be 'famous' and
> 'distinctive' and that the
> > alleged unlawful use must be in the course of
> trade or in other words,
> must
> > be a commercial use. I think this perfectly fits
> the use of marks in the
> > movies and this is where, the professor is also
> right that the mere fact
> the
> > owners of marks threaten to take an action deters
> such use. I would
> however
> > add that often these are not threats but actions
> in fact are taken for
> such
> > uses and given the legal parameters, they tend to
> be successful. These are
> > just my views. I would like to hear your comments
> and any observations.
> >
> > Regards
> > Safdar
> >
> >
> > ----Original Message Follows----
> > From: Heather Vargas <hvarg[_at_]ccb.com>
> > Reply-To: "CNI-COPYRIGHT -- Copyright &
> Intellectual Property"
> > <CNI-COPYRIGHT[_at_]cni.org>
> > To: "CNI-COPYRIGHT -- Copyright & Intellectual
> Property"
> > <CNI-COPYRIGHT[_at_]cni.org>
> > Subject: [CNI-(C)] Re: Movies and Photos With
> Inanimate Objects
> > (orBuildings)
> > Date: Wed, 11 Jun 2003 11:27:01 -0400
> >
> > On the trademark issue, Professor Ochoa notes that
> he does not believe
> that
> > there is a trademark issue because the use does
> not imply sponsorship or
> > approval. I am interested in thoughts on how the
> current trend toward
> > product placement in movies (for which some
> companies pay millions of
> > dollars) and joint marketing (e.g. James Bond and
> was it Movado watches?)
> > plays into the sponsorship or approval question.
> >
> > At 05:47 PM 6/6/2003 -0400, Tyler Ochoa wrote:
> > >>>> JonMEsq[_at_]aol.com 06/04/03 06:34AM >>>
> > >Question- What kind of releases might be
> required for inanimate objects
> > >used in photographs and movies. There of course
> could potentially be
> > >trademark and copyright issues? When would
> copyright licenses [be
> > >required], when not?
> > ><<<<<
> > >
> > >Re: Trademark. In my opinion, permission to use
> an object with a
> > >trademark in a movie should not be required,
> because it is not a
> > >trademark use. A trademark use is one in which
> the mark is used to
> > >identify the source of goods or services, or on
> in which the use of the
> > >mark implies sponsorship or approval. None of
> those is true for the use
> > >of an object in a movie. Unfortunately, the law
> is sufficiently fuzzy
> > >that often trademark owners will sue anyway,
> believing (often correctly)
> > >that the mere threat of suit will have a
> deterrent effect.
> > >
> > >Re: Copyright. For buildings, there is an
> express exception in Section
> > >120(a) of the Copyright Act, which reads: "The
> copyright in an
> > >architectural work that has been constructed
> does not include the right
> > >to prevent the making, distributing or public
> display of pictures,
> > >paintings, photographs, or other pictorial
> representations of the work,
> > >if the building in which the work is embodied is
> located in or
> > >ordinarily visible from a public place." This
> section applies to motion
> > >pictures of the building. [Leicester v. Warner
> Bros.]
> > >
> > >For other copyrighted works, such as an outdoor
> sculpture or mural, in
> > >my opinion the same policy should apply, at
> least if the work is in the
> > >background or is only incidental, and not the
> principal feature of the
> > >shot. However, there is no express exception for
> other such works, and
> > >Leicester suggests that other works are not be
> entitled to an implied
> > >exception. Moreover, in Ringgold v. Black
> Entertainment TV, the Second
> > >Circuit held that a poster of a copyrighted work
> in the background of a
> > >TV show, visible for no more than 30 seconds
> total, was an infringement
> > >of the public display right. On the other hand,
> in Sandoval v. New Line
> > >Cinema, the same court held that photographic
> negatives in the
> > >background of a movie, which were out of focus
> and not clearly
> > >identifiable, were not an infringement (de
> minimis use). In addition,
> > >one also has to consider the fair use doctrine;
> but in Ringgold, the
> > >court reversed a summary judgment in favor of
> the defendant, remanding
> > >for a trial on the issue of fair use.
> > >
> > >Major motion picture studios usually get
> permission, because it is
> > >easier and cheaper to clear the rights than to
> litigate. But for
> > >independent filmmakers, rights clearance is a
> major expense and an
> > >obstacle to genuine creativity. Movie makers
> ought to be able to depict
> > >the world around us without these kinds of
> restrictions.
=== message truncated ===
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Received on Mon Jun 16 2003 - 18:51:31 GMT