Cinema Law: Location Permission

by Gregory Korn | Published September 22, 2009

Welcome to “Cinema Law,” MovieMaker.com’s all-new blog where you ask the questions of our resident team of legal experts and, each week, they’ll provide the answers to your production queries. Have a burning question yourself? E-mail it to and your question may just be on next week’s blog! Cinema Law is presented as general information only and is not meant to take the place of professional legal advice.

Q: The trailer for my first film was recently posted online. A brief scene in the movie (which also appears in the trailer) was filmed at a local restaurant parking lot, which I never asked permission to use. Now, the restaurant’s owner, who had no knowledge of the film prior to the trailer’s release, says he’ll sue me unless the restaurant receives some sort of compensation. Does he have a case?

A: It appears that the restaurant owner believes that he has the right to compensation because his property and perhaps the trademarked name of his restaurant appear in your film. In all likelihood, that claim would fail. Obviously, a property owner has no right to compensation merely because his parking lot appears on screen. Imagine if a moviemaker filming in Times Square needed a license from every building, restaurant and store owner? This is untenable and not the law.

Similarly, although trademark owners often believe that their consent is required in order to depict their mark in a film, that is generally false as well. I would assume that any images of the name of the restaurant in your film are brief and just happenstance of the location. Such “incidental” use of a trademark should not give rise to a claim. The depiction of a mark in a film should only constitute trademark infringement where it is substantial enough that a reasonable viewer is likely to be confused as to the mark holder’s affiliation with, or sponsorship of, the movie. This “likelihood of confusion” is the standard for trademark infringement.

There are obvious examples where the use of a trademark in a film is so pervasive that the consuming public assumes some type of association between the mark and the film—Cast Away, with its blatant advertising of Fed Ex, jumps to mind. But if a trademark is depicted on screen only incidentally because the film happens to be shot in a location that has storefronts, billboards, etc., that is not likely to cause confusion and should not be adjudged as infringing. The many films showing scenes in Times Square or on the Las Vegas strip are good examples. It is almost impossible to have a scene in either of those locations without inevitably showing some trademarks. But so long as the trademarks are not depicted or used in such a way that consumers could believe there is a sponsorship of the film by that mark holder, there is no trademark infringement.

If your restaurant owner is not persuaded by the foregoing and is so litigious that he insists upon pursuing this trivial matter, the claim you should be more concerned with is trespass. Even though the restaurant is a public accommodation that invites guests—which invitation is a consent to the trespass—a claim can be asserted when an invitee exceeds the scope of that consent. Whether or not a trespass claim could be asserted depends on the circumstances. Either way, it is difficult to imagine what damages the restaurant owner has suffered because of the trespass, so one would hope that he could be persuaded not to assert this claim.

Gregory Korn is a Partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in the areas of entertainment and intellectual property litigation. He has represented actors, musicians and production companies in a variety of contract, trademark and copyright matters. Korn has also litigated numerous real estate and trust matters, including the successful representation of a trustor in a series of appeals before the Ninth Circuit Court of Appeals and California Court of Appeal. In 2007, Korn was named a “2007 Southern California Rising Star” by the publishers of Los Angeles Magazine. Korn is a graduate of the University of California, San Diego (B.A. 1996) and the UCLA School of Law, Order of the Coif, (J.D. 1999). Prior to practicing, Korn clerked for the Honorable Stephen V. Wilson, United States District Judge for the Central District of California.

The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP ("KWIKA") are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.

COMMENTS | POST A COMMENT

Comment by Chocolate on 9/23/09 at 10:03 am

I hadn’t thought about it that much before. People can sue for anything and often just defending against them is very expensive even if you win. I guess that’s why it’s good to raise enough money to have legal representation before you start the film.

Comment by whushing on angels wings on 9/25/09 at 1:57 pm

Take it str8t from the horses mouth, Being sued or suing anyone for, whatever, is not an exact science, even when you can see no way of possibly losing. It is rare that the outcome gets even close to your wildest imagination. Truly. Even if you settle out of court, they’ve made a complete wreck out of your life and never broke a sweat, while you defend your right to inhale when everybody else in your general vacinity exhaled. It really does seem that pathetic. Don’t drag it out, and don’t beat a dead horse are only sound advice that may help put more money in your pocket and, may, is the key word here. All attorney’s get his/her percentage PLUS expenses wheather you go to court or settle at the table. The expenses of a long drawn out process will astound you and attest to what a sap you’ve been. Being smart trumps trying to be smart. It gets tricky when you’ve run into someone who just wants to mow you down and you can lose a whole lot a grass in the details.

Comment by Morris on 9/27/09 at 1:26 am

Even if you settle out of court, they’ve made a complete wreck out of your life and never broke a sweat

Comment by Mark@School Grants on 1/09/10 at 11:17 am

I totally agree.  The case shouldn’t cause any confusion.  Based on advertisements inserted in films, you can immediately recognize if it’s really a part of the film or not by the time allotted for their exposure.  The longer the time is, the higher the possibility that it’s an advertisement on the part of the company.

POST A COMMENT

OUR PRIVACY POLICY | We will not publish or sell or share your email address or other personal information. Read more.

Name:
Email:
URL:

Type the word you see below:

Comment:

Remember my personal information

Notify me of follow-up comments?

SITE DELIVERY OPTIONS

Home | Latest Headlines
Screenwriting | Producing | Directing | Acting | Cinematography | Editing | Distribution | Education | Festivals | Locations
Listings | Archives | HOP Interviews | Blogs | Forums | Contests | Subscriptions | Advertising

About | Site Map | Privacy Policy | Contact

© 2010 MovieMaker Magazine

Web site design by Hop Studios