Branding, Copyright, True Stories & The Law

I’m interested in creating a (potentially for-profit) fan site/project based on the true story of Maziar Bahari who was an Iranian-Canadian journalist detained by Iranian forces who brutally interrogated him for a prolonged period of time under the suspicion he was a spy. The story was recently publicized by Jon Stewart who wrote and directed a movie about all these real-life events which was called Rosewater.

My question is to what extent am I allowed to refer to the actual Rosewater movie in describing/advertising my own website? For example, would I need permission to write “This is a website for fans of the movie Rosewater who want to explore the facts and discuss it”? I presume it would be fine to say “this is a site for people who want to talk about Maziar Bahari and what happened to him” but in order to appeal to the greatest audience it would be advantageous to be able to refer to the movie in some places. But am I forbidden by US law from doing this?

I will assume ‘IANAL’ applies unless otherwise started and of course if I ever got super serious about the project I would pay for actual legal advice but at this point I’d love to just get a bit of background on where things stand.

Moderator Action

Since this seems to involve legal opinions and advice, let’s move it to our legal opinion and advice forum.

Moving thread from General Questions to In My Humble Opinion.

You do not need any permission to mention the name of a movie or product.

Very briefly and non-lawyery, just using the word “Unofficial Fan Site” might cover it. But it might not.

You could try asking for permission from TPTB.

ETA: If you are making some sort of profit, that will very more than likely create a legal problem for you.

Explain how.

Turning a profit off of a copyrighted work that is not yours? Do I really need to explain how?

Certainly, if it’s so nominal, it won’t be much to worry about, but you can’t expect to start printing Jurassic Park T-shirts off your unofficial fan-site without expecting Universal Studios to come knocking on your door asking you to cease and desist.

in my case, I’d like to run a kickstarter for my project. If possible, I’d like to mention “this is an unofficial fan project based on the story told in Rosewater” or that type of phrasing.

You can talk about the movie as much as you like. Anything, any aspect.

If a trailer is on YouTube you can embed that. The poster should be OK as well. Promotional materials are expected to be reproduced. Clips of the movie are probably not allowed, unless they have specifically stated they are usuable, and I’d be surprised to see that.

I’m not sure why you need Kickstarter. Funding the domain hosting?

Two questions you need to ask:

  1. How many hours of an IP attorney’s time can the trademark owner afford?

  2. How many hours of an IP attorney’s time can I afford?

Defense attorneys do not work on contingency.

If the answer to the second question is not greater than or equal to the answer to the first question, you might want to reconsider your business plan. As valuable as the insight of a bunch of armchair lawyers into what you “ought” be able to do might be, the real world answer depends on how prepared you are to fight for what you ought to be able to do.

Case in point: I know a couple who sunk their savings into a small independent pastry shop. They had the signs made up and paid for advertising. Unfortunately the first two letters of their shop’s name were the same as the first two letters of a national donut chain. The chain’s lawyers sent them a threatening letter. They then consulted an attorney who told them that they might have a winnable case. When he went over how much it would cost them to fight the chain, they realized there was no way they could pay.

It will cost you a lot less to discuss the issue with a qualified attorney before you spend any more money than it will cost to deal with the issue after the stuff hits the fan.

I don’t have time to analyze this fully but at first blush this seems like a trademark issue. Are you using someone else’s trademark to promote yourself? I would err on the side of referring to this person by his name or other generic description and referring to the title of the film in a limited and less prominent manner.

You can make as much money as you want if all you’re doing is mentioning the title of something. How do you think people publish movie reviews?

If you want to use characters or fictional story settings then you will run into trouble.

I usually defer to you on matters of law, but this statement seems wrong.

Why would trademark even be an issue? Movies are seldom trademarked. Marvel Comics’ name itself is trademarked, and some of its characters are, but its movies and movie titles are not.

And a check of the USPO trademark database shows no hits for Rosewater.

This is simply a fair use issue under copyright law. Fan sites are omnipresent on the internet. They are legal in every regard unless, as I mentioned earlier, they use elements that are not considered fair use, like clips.

Trademarks don’t have to be registered. That’s the first rule of trademark law.

The question is not a pure trademark infringement question because there might not even be an unregistered trademark titles are not by themselves trademarks ).

When I say trademark matter, I’m referring to one of the associated types of claims, such as unfair dealing or false association.

There might be a question of excessive reference to the movie suggesting a false association or otherwise free riding on its notoriety.

For there to be a copyright claim, there would have to be copying. Did I miss something? Is the OP proposing to post a copy of the movie with his promotion?

Definitely not posting a copy of the movie or using any of their content, just referring to them in order to give context to what I’m raising money for. Definitely including clear prominent disclaimers as well stating it’s a fan-project and not official or endorsed.

Yuh huh, there’s no cut and dried answer. There is an area where someone might be infringing on a copyright/trademark, so it all depends on exactly what and how he/she’s turning a dime. As for journalism and publication, most of that falls under “fair practice.”

A copyright infringement can occur if an intellectual property or work of art was copied, even in part. Again, the confines of this isn’t very cut and dry, so you just have to be careful if you aren’t seeking permission.

Then you’ll most-likely be fine, although a Kickstarter campaign might raise the hairs on the necks of the producer’s lawyers, but who knows.

Also, steer clear of using any promotional artwork or logos from the movie. That’s © infringement too.

Promotional artwork is provided for the sake of promoting the movie, and as long as the connection to the film is clear, and you aren’t trying to suggest that the logo or film are your works, it is highly unikely, IMHO, that the studio would pursue a copyright infringement claim.

Using someone else’s work to promote your work is very thin ice. That’s why I referred to the false association-type claims.

You’re safe mentioning as a fact that your work addresses the same incident or set of facts as the movie.

I wouldn’t do it more than once and I would limit it to a reference, no promotional posters, clips, logos, etc.

There are gazillions of fan sites up on the web today. When I enter movie fan sites in Google I get 188,000,000 hits. There are entire sites devoted to hosting fan sites. Check out what some of the major fan sites do.

Ascenray, do you have any case law for fan sites hit with unfair dealing or false association claims? I’d be very curious to read them and see how they were decided and what the reasoning was.

The OP didn’t say he was going to use “someone else’s work to promote [his] work.” He’s going to discuss the incident and the movie based on it. Any images, artwork, or logos from the film are clearly referencing the film and have been provided by the studio expressly for that purpose: to promote the film, which they do by appearing on his Web site.

OTOH, if he said, “Here’s a movie I made called ‘Tulupoil’” and showed a still from Rosewater (without credit), he would be misappropriating the image (and obviously lying), and might get a nasty letter from the studio’s lawyer. Likewise if he used a picture or clip to illustrate a generic story about torture without properly crediting the film.

But using Rosewater promotional material in the manner he has described is entirely within the scope of intended uses for such material. The studio could not, IMHO, pursue a viable copyright claim. Of course anyone can sue, or have a lawyer send a threatening note, for any reason. But barring extremely unusual circumstances, I don’t think the OP is proposing anything that could realistically result in even a threat of legal action.

Furthermore, even in the unlikely case that the studio did decide that his use was an infringement, from a practical point of view, the worst they are likely to do is send a take-down notice. If he complies, that’s the end of it. The chance of anything happening that would require even a call to a lawyer is vanishingly small, unless he decided to be pigheaded and refuse to obey the take-down.

(IANAL, but I publish a newsletter that covers the motion picture industry and I use film stills in virtually every issue. I have also been a party to legal actions involving claims of copyright and trademark infringement, through which I have learned a fair amount about IP law.)