Cinema Law: Brand It or Blur It?

Q: We’ve shot 75 percent of our movie and in every scene our main character has been wearing a T-shirt with a Poland Spring brand logo on it. Do we need to do anything? Contact Poland Spring? Blur it out?

As with many legal questions, there is a short answer (“Probably not”) and a long answer (“Probably not, unless…”). Since I still have a few hundred words to spare toward my limit, it probably makes sense to expand upon the latter.

Issues concerning the use of product and/or company logos implicate the area of trademark law. In the United States, trademark (typically a symbol, ornamental design or other visual insignia) and trade dress (the “packaging” of a product, so to speak) protection is afforded to both registered and unregistered marks under a federal statute called the Lanham Act, appearing at title 15, chapter 22 of the United States Code. Thus, whether Poland Spring has actually registered its signature white-scripted letters appearing over a mountain-y oasis is rather immaterial. The purpose of trademark protection, however, is to enable a business to identify itself efficiently as the source of a given product through the adoption of a specific mark. Consequently, trademark law is designed to protect customers and the public at large from confusion about the origin or source of a product.

To cite a textbook example of trademark/trade dress infringement from the film world, look at Coming To America, the 1988 hit featuring Eddie Murphy and Arsenio Hall. In the movie, Eddie’s character moves to Queens, NY and for a while works at a fast food restaurant called McDowell’s. As explained by the restaurant’s proprietor, Cleo McDowell, “See, they’re McDonald’s… I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds.” Now, if we were to take McDowell’s and place it in the real world, Cleo McDowell would be facing an obvious trademark and trade dress infringement problem—i.e., McDowell’s menu item naming scheme and restaurant features are likely to confuse customers to think that McDowell’s is McDonald’s or somehow affiliated with McDonald’s. Make sense?

Displaying logos on a film or television program, by contrast, does not implicate the concerns of customer confusion addressed by trademark law. The Poland Spring logo appearing on your main character’s t-shirt is designed to describe Poland Spring and/or its product. Your capturing the logo on film does nothing to illegitimize this permissible use of the logo, and you do not need permission to use the logo in this manner.

Then why the “Probably not, unless…” response? Well, two things. First, there exists the (in all likelihood, slight) possibility that based on content, the use of the logo in the film could be deemed defamatory—e.g, your main character is a Poland Spring sales rep who murders innocent residents in a quiet suburban town in upstate New York. Second, a reason some moviemakers choose to “blur” product logos is for economic purposes. Approaching Aquafina as a potential investor in your film? Submitting your film for the 1st annual Coca-Cola/Dasani Film Festival? Might want to censor that Poland Spring logo. Thus, absent concerns about advertising and investment dollars, it’s unlikely you’ll want to undertake additional cost and efforts to censor the logo from your film. Hopefully that’s refreshing news. MM

Amber Holley, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, handles a broad range of complex litigation matters. Her recent areas of practice include entertainment, copyright, antitrust, contract and other commercial disputes. She has represented clients in federal and state courts, both inside and outside of the State of California. Holley is a graduate of Stanford University (A.B., 1998, Economics and Political Science) and received her J.D. from Harvard Law School in 2003. She is also a member of the Black Entertainment and Sport Lawyers Association (BESLA) and Century City bar Association.

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