Placing Products in Your Production
Ever wondered whether you can show logos or products in use in your productions? Well, you can...but there are a few things that you need to know first.
How would you like to earn $15 million on your next video production merely by moving some burgers around on camera? That's what the producers of Men in Black II did in 2002 when Burger King paid them to have BK products appear on screen. Although Burger King may not be willing to give you $15 million to advertise its products in your independent movie, you can always seek smaller deals to help subsidize your production.
Product placement is a form of advertisement in which particular brand names or products are incorporated into your movie or television show. Advertisers often prefer this method of exposure due to its subtle nature as compared with explicit commercials that may bother- to say the least-potential customers. Product placement has become more commonplace as a means to subsidize increased film production costs.
However, as an independent movie creator, you may not have the luxury of receiving compensation in exchange for your depiction of a particular trademark or brand name. It is not uncommon for a trademarked item (e.g., Coca-Cola, Prada, Corvette) to be displayed in a film, regardless of whether the exposure was deliberate. If you include an identifiable brand name in your production, you should become familiar with the array of laws and regulations surrounding the matter.
You Can Use Trademarks
The Trade Marks Act of 1985 prohibits the "unauthorized use of trade marks as trade marks." Consequently, you will usually not violate the Trade Marks Act when you display a trademarked product in your production. For example, your actor may drink a cup of McDonald's coffee without infringing the McDonald's registered trademark. As long as the trademark is not represented as a "badge of origin" it will not be a cause of concern for you. In fact, if you can get Tom Cruise to drink from the cup and smile on camera, the McDonald's corporation may even pay you for placement of that product. For example, in 1982, Steven Spielberg got the Hershey Chocolate Company to spend $1 million merely to have E.T. follow a path of Reese's Pieces. (Sales of Reese's Pieces increased by 65% that year.)
Although the trademark law was implemented as protection for the manufacturers of specific goods, copyright law serves to protect the rights of owners of artistic works. The Copyright Act defines artistic work as: paintings, sculptures, drawings, engravings, or photographs.
Branded products that are the subject of copyrights may be used in videos as long as their appearance is "incidental". For example, an actor may walk past a copyrighted painting without infringing the copyright law, as long as the painting is not the focus of the scene. Whether such an occurrence is considered incidental is determined by the degree with which the copyrighted item is incorporated into the video. However, there are circumstances in which the use of a copyrighted item will not be considered incidental; such occurrences can result in legal action. For example, Tom Cruise and his movie studio are facing a possible lawsuit for the replication of Hitler's infamous globe in the production of Valkyrie. In 2007, the globe's current owner registered the globe in the Copyright Office, preventing anyone else from producing a copy of that object or a globe derived from the original. Similarly, if you wish to incorporate a well-known image (e.g., painting, photograph, sculpture) into your video, make sure to first determine whether the image or sculpture is under copyright.
It has been established that the incorporation of trademarked and copyrighted items into film is permissible if they pertain to the most common circumstances of use. However, it is unlawful to make false, disparaging or harmful statements about a branded product. The common law tort of "passing off" protects a manufacturer from a misrepresentation of its product that may damage its reputation, or "goodwill." Goodwill refers to the benefit of having a good name and a reputation of respectability in association with a brand. For example, your video cannot depict the consumption of a Gatorade drink as a leading cause of blindness, nor could you indicate a correlation between Levi's jeans and sterility. You should refrain from making fallacious statements about a trademarked product in order to avoid a Trade Practices Act claim, which is a legal action pertaining to misleading or deceptive conduct. In order to avoid such legal action, you should include a disclaimer at the onset of your production that states that it is not associated with any of the products or brands that it features.
The good news is that you can probably use other people's products in your productions; the better news is that those people may even pay you for the placement.
Contributing editor Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards. Michael Bashover is a recent graduate of Binghamton University, where he received a bachelor's degree in English Literature.