Q: Is the “New York Police Department” name in the public domain?
Can I portray the police department that appears in my movie as being the “New York Police Department?” Can I show NYPD flyers and uniformed police actors bearing the NYPD logo?
A: The New York Police Department’s name and logo are definitely not in the public domain, but you nevertheless should be able to use them in your movie.
Many police departments—including the NYPD and the LAPD—have sought trademark protection for their names and logos. (You can see the NYPD’s and the LAPD’s registered trademarks here and here, respectively.) There are generally two reasons that police departments seek trademark protection for their names: First, police departments want to profit from the use of their names by licensing their logos for merchandise. According to one article, the Royal Canadian Mounted Police “have made as much as $2 million in one year in trademarked merchandising revenues.” The other big reason for police departments to seek trademark protection is to prevent certain uses of their names and thereby control their image and reputation. In other words, trademark status may allow the LAPD to prevent the sale of merchandise such as the “LAPD: We Treat You Like a King” T-shirts that were sold following the infamous 1991 police brutality case.
But all this just begs the question: Does the NYPD’s trademark registration prevent you from using its name or logo in your movie? At the outset, it should be noted that it’s always safest to ask permission. Most large metropolitan police departments have dedicated divisions that handle exactly this sort of thing. The LAPD, for instance, has a dedicated Entertainment & Trademark Unit that is responsible for administering “all Trademark Licensing Agreements, Ride-along Trademark Licensing Agreements, Access Agreements, Covenant Not to Sue and Location Agreements.” One of the biggest benefits of seeking permission is that it may save you from a PR headache down the road—regardless of whether it’s legally permissible to use the department’s name. For instance, the producers of “The Shield” changed the title of their show from “Rampart”—a reference to the LAPD’s Rampart Division—after significant criticism from the LAPD, even though Fox was almost certainly allowed to use the Rampart name.
What if the department denies you permission to use their name and logo? You should still be protected from liability. First, it’s unclear whether police department logos should even be granted trademark status in the first place. As one defendant argued in the 2005 case of City of New York v. Elovitz:
There is no legitimate reason why the City should be entitled to trademark protection for their very names and insignias of these municipal agencies… The NYPD and FDNY letters and insignia… serve a functional purpose. They do not serve as an indicia of source, which is the purpose of a trademark. These symbols were not used as trademarks by the City, but were used merely to identify the respective governmental agencies.
The Elovitz case settled on the eve of trial, so the court did not have an opportunity to actually determine the issue. But even if the names and logos of police departments such as the NYPD are entitled to trademark protection, you still should be able to use them in your movie. For a detailed analysis of this area of law, you can read my colleague Amber’s article here. This is a somewhat unsettled area of the law, but the trend is clearly to allow moviemakers to use trademarks on film. As law professor Pratheepan Gulasekaram recently put it in this article:
Even without permission, those engaged in noncommercial expression, such as filmmakers, are at liberty to reference, disparage, ridicule, or otherwise use a trademark or trademarked product in their expressive work without undue fear of trademark liability… The use of trademarks to convey expressive ideas is entitled to robust First Amendment protection that may only be trumped in clear instances when the use significantly impairs the source-identifying function of the mark—i.e., only when the likelihood of consumer confusion is high and market fraud is a genuine danger. As those instances are rare in expressive activity, artists and others are entitled to broad leeway in using, ridiculing, commenting on, or displaying any trade-marked products.
In other words, because no one is likely to confuse your movie with something produced or endorsed by the NYPD—and because there are significant First Amendment reasons why you should be allowed to make a movie featuring the NYPD—you should be protected. Indeed, it’s hard to imagine any other rule. Our police departments are some of our most important and enduring institutions, and a rule that prevented moviemakers from commenting on them through movies would be a significant impediment to free speech.
With that said, you should proceed with caution. Police departments have demonstrated a willingness to litigate these issues, and this area of the law is surprisingly unsettled. Moreover, if your film portrays extreme violence or explicit sex you will need to be especially careful. For instance, the Second Circuit Court of Appeals—which includes New York under its jurisdiction—held that the makers of the adult film Debbie Does Dallas were likely to violating the trademark of the Dallas Cowboys Cheerleaders when they put one of their actresses in a Dallas Cowboys Cheerleader uniform. MM
Image courtesy of Pixabay.
Randy Whattoff is an Associate at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and has experience litigating a broad range of complex business matters. He has recently handled cases involving professional athletes, complex real estate transactions, business fraud and other commercial disputes. Mr. Whattoff graduated cum laude from Cornell Law School in 2006. At Cornell he was an editor of the Cornell Law Review, the managing editor of Cornell Legal Information Institute and a teaching assistant. During law school Mr. Whattoff also externed with the Honorable Joel E. August in the Second Circuit Court of Hawaii. Mr. Whattoff received his undergraduate degree in Sociology from UC Berkeley in 2002. He minored in Computer Science.
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