actually, it isn't free. Companies pay quite a lot of money (six or seven
figures) for such a product placement.
Harold Federow
-----Original Message-----
From: Robert F. Bodi [mailto:lawlists[_at_]bodi.com]
Sent: Friday, June 13, 2003 8:44 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: [CNI-(C)] Re: Movies and Photos With Inanimate
Objects (orBuildings)
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
> 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. Unfortunately,
> >everyone wants a cut of the action; and not surprisingly, most producers
> >choose to be risk-averse to avoid potential conflict.
> >
> >Tyler T. Ochoa
> >Professor and Co-Director
> >Center for Intellectual Property Law
> >Whittier Law School
> >3333 Harbor Blvd.
> >Costa Mesa, CA 92626
> >(714) 444-4141, ext. 243
> >(714) 444-1854 (fax)
> >tochoa[_at_]law.whittier.edu
> >
> >EFFECTIVE JULY 1, 2003:
> >Professor of Law
> >High Tech Law Institute
> >Santa Clara University School of Law
> >500 El Camino Real
> >Santa Clara, CA 95053
> >(408) 554-4767
> >(408) 554-4426 (fax)
> >ttochoa[_at_]scu.edu
> >
> >
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