# Incidental use of brands in films, and Fair Use **URL:** \ **Category:** Factual Questions\ **Created:** [April 8, 2019, 2:04pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215 "2019-04-08T14:04:10Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [April 10, 2019, 10:08am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/21 "2019-04-10T10:08:08Z")
An aside to this is the use of tattoos in film. From the site Ally Law: An interesting issue arises as to the ownership of the copyright of the tattoo artwork. While you might think you own the art emblazoned on your body, with certain exceptions the copyright in the (original) artwork worn by a tattooed person is the tattoo artist. That is, the art owner is the person with the tattoo gun who created the art on your body. In the case of tattoo art to which the copyright is owned by another – for instance, Mickey Mouse or the Batmobile – it is theoretically possible that you as the wearer of the copyrighted art could be caught in a legal fight with the copyright owner, although the owner’s remedy is difficult to imagine (mandatory tattoo removal?). To date there are no known cases in the U.S. on this issue, but it is not unlikely we will eventually see one. In the case of background actors wardrobe will generally take some trouble to ensure that tattoos are covered or obscured, sometimes using makeup to hide ones that are too obvious. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 10, 2019, 10:51am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/22 "2019-04-10T10:51:36Z")
The OP pretty much nailed the main reasons—the filmmakers want to preserve the value of paid placement, avoid any potential claim of disparagement, avoid any appearance of endorsement or association, and just legal overcaution. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 10, 2019, 10:59am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/23 "2019-04-10T10:59:19Z")
And just to be clear, the incidental appearance of brands and logos is usually fair use under trademark law, at least in the U.S. There’s also the issue that the laws in other countries might be different. Or there might be other policies to consider, such as that the BBC will not broadcast fictional works that show real brands. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 10, 2019, 11:40am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/24 "2019-04-10T11:40:14Z")
> [@Bill\_Door](#): > > An aside to this is the use of tattoos in film. From the site Ally Law: > An interesting issue arises as to the ownership of the copyright of the tattoo artwork. While you might think you own the art emblazoned on your body, with certain exceptions the copyright in the (original) artwork worn by a tattooed person is the tattoo artist. That is, the art owner is the person with the tattoo gun who created the art on your body. In the case of tattoo art to which the copyright is owned by another – for instance, Mickey Mouse or the Batmobile – it is theoretically possible that you as the wearer of the copyrighted art could be caught in a legal fight with the copyright owner, although the owner’s remedy is difficult to imagine (mandatory tattoo removal?). To date there are no known cases in the U.S. on this issue, but it is not unlikely we will eventually see one. > > In the case of background actors wardrobe will generally take some trouble to ensure that tattoos are covered or obscured, sometimes using makeup to hide ones that are too obvious. Note that, as in so many things, the issue of who owns the copyright on a piece of art changes by location. In Spain if it’s commissioned it’s the commissioner, so if you pick a design the tattoo artist has already drawn (either of his own choice, or by commission but having then obtained the right to reuse it) you don’t own it, but if you request something drawn specifically for you and unless a signed contract says otherwise, you’re the owner. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [April 10, 2019, 1:00pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/25 "2019-04-10T13:00:13Z")
> [@Acsenray](#): > > The OP pretty much nailed the main reasons—the filmmakers want to preserve the value of paid placement, avoid any potential claim of disparagement, avoid any appearance of endorsement or association, and just legal overcaution. Avoiding later association is a good point. You have a film set in a Subway shop and a week before the film is to debut the Jared scandal hits the news. Not good. Since you don’t know what future ignominy a brand might have, just play it safe. Also, in IP terms, certain things shown in a shot might be copyrighted and pose a problem. E.g., in France, the colored [lighting](https://en.wikipedia.org/wiki/Eiffel_Tower#Illumination_copyright) of the Eiffel Tower is copyrighted. If you have a shot that specificially focuses on the tower at night, you have to pay. OTOH, if it’s just part of a background then hopefully no problem. Similarly, the [Portlandia](https://en.wikipedia.org/wiki/Portlandia_(statue)#Copyright) statue in Portland is copyrighted. This lead to a problem in the show _Portlandia_ which had a brief clip of it in the opening. Some negotiations ensued to iron things out. ---
**Author:** ![Fantome](https://avatars.discourse-cdn.com/v4/letter/f/e9c0ed/32.png) [@Fantome](https://boards.straightdope.com/u/Fantome)\ **Post date:** [April 10, 2019, 3:49pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/26 "2019-04-10T15:49:33Z")
> [@mikecurtis](#): > > You’re not thinking broad enough. Product placement for a low budget indie can be something like getting to use a restaurant as a location **free of charge** as long as the actual name gets shown or mentioned. Or getting your local pizza parlor to cater craft services because their pizza box is shown in a scene. City tourism boards often have money for small films shot in their town. The possibilities are endless. And I guarantee you that the producer on your small film was doing everything she could to get ahold of some of that money! He said that he realizes that product placement is an important source of funding in some films. You nitpick that phrasing and claim he “goes wrong” here and that it’s “a HUGE source of funding in film making.” Now he’s not thinking broad enough and you make a guarantee about the film “he” worked on, which is irrelevant, as what one tries to get and succeeds in and becomes “a HUGE source of funding” are different matters. Why all the nitpicking? ---
**Author:** ![DesertDog](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/desertdog/32/11503_2.png) [@DesertDog](https://boards.straightdope.com/u/DesertDog)\ **Post date:** [April 10, 2019, 4:46pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/27 "2019-04-10T16:46:49Z")
> [@Anny\_Middon](#): > > I watch reruns of Perry Mason regularly. For a time (not very long, and I think in just one season), they had pictures of products in the closing credits. Mostly they are for products that I’ve never heard of, and assume no longer exist. But why not edit them out? > > Does their original contract require the product picture to be included whenever the episode is rerun? Or did they just decide it wasn’t worth the bother? Or what? Why spend the money editing the image if nobody cares? Until recently, Netflix had the entire run of _The Dick VanDyke Show_ to stream and a few of them, about half a season’s worth, show a package of some Proctor and Gamble product or other during the end credits. Furthermore, a couple episodes have an _advertisement_ featuring Rob, Laura, and Ritchie on the set pitching dish washing liquid. It would have been trivial to edit that out but they were left in for nostalgic purposes, I’d guess. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 10, 2019, 6:03pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/28 "2019-04-10T18:03:36Z")
> [@ftg](#): > > Avoiding later association is a good point. You have a film set in a Subway shop and a week before the film is to debut the Jared scandal hits the news. Not good. > > Since you don’t know what future ignominy a brand might have, just play it safe. > > Also, in IP terms, certain things shown in a shot might be copyrighted and pose a problem. E.g., in France, the colored [lighting](https://en.wikipedia.org/wiki/Eiffel_Tower#Illumination_copyright) of the Eiffel Tower is copyrighted. If you have a shot that specificially focuses on the tower at night, you have to pay. OTOH, if it’s just part of a background then hopefully no problem. > > Similarly, the [Portlandia](https://en.wikipedia.org/wiki/Portlandia_(statue)#Copyright) statue in Portland is copyrighted. This lead to a problem in the show _Portlandia_ which had a brief clip of it in the opening. Some negotiations ensued to iron things out. Yes, bad timing. I recall going to see the movie “Congo” and one of the characters introduces himself with the last name “Homolka”. An obscure east European name, except when the movie came out Karla Homolka and her husband Paul Bernardo were top headlines in Canada, going through a notorious trial over kidnapping, killing and dismembering two girls and also overdosing Karla’s sister when they drugged her for sex. The name got an unfortunate laugh for that line in Canadian theatres. ---
**Author:** ![TSBG](https://avatars.discourse-cdn.com/v4/letter/t/77aa72/32.png) [@TSBG](https://boards.straightdope.com/u/TSBG)\ **Post date:** [April 10, 2019, 6:25pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/29 "2019-04-10T18:25:10Z")
Congo came out after the trial. The name may have been a deliberate and unfortunate joke. ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [April 10, 2019, 6:34pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/30 "2019-04-10T18:34:20Z")
> [@Fantome](#): > > He said that he realizes that product placement is an important source of funding in some films. You nitpick that phrasing and claim he “goes wrong” here and that it’s “a HUGE source of funding in film making.” Now he’s not thinking broad enough and you make a guarantee about the film “he” worked on, which is irrelevant, as what one tries to get and succeeds in and becomes “a HUGE source of funding” are different matters. Why all the nitpicking? I am trying to make the point that it’s an important source of funding in almost all film making (not just some) and it’s not confined to well known brands like Coke or Apple, or just to big budget films. It’s become such an ubiquitous part of film making that it’s taught in film schools, and the larger production companies have departments solely dedicated to it. mc ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 10, 2019, 7:29pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/31 "2019-04-10T19:29:32Z")
> [@Bill\_Door](#): > > An aside to this is the use of tattoos in film. From the site Ally Law: > An interesting issue arises as to the ownership of the copyright of the tattoo artwork. While you might think you own the art emblazoned on your body, with certain exceptions the copyright in the (original) artwork worn by a tattooed person is the tattoo artist. That is, the art owner is the person with the tattoo gun who created the art on your body. In the case of tattoo art to which the copyright is owned by another – for instance, Mickey Mouse or the Batmobile – it is theoretically possible that you as the wearer of the copyrighted art could be caught in a legal fight with the copyright owner, although the owner’s remedy is difficult to imagine (mandatory tattoo removal?). To date there are no known cases in the U.S. on this issue, but it is not unlikely we will eventually see one. > > In the case of background actors wardrobe will generally take some trouble to ensure that tattoos are covered or obscured, sometimes using makeup to hide ones that are too obvious. Who was it, Mike Tyson, who sued the hangover filmmakers about copying his facial tattoo? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 10, 2019, 7:35pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/32 "2019-04-10T19:35:56Z")
> [@md2000](#): > > Who was it, Mike Tyson, who sued the hangover filmmakers about copying his facial tattoo? It was the tattoo artist who sued, I believe. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [April 10, 2019, 10:05pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/33 "2019-04-10T22:05:49Z")
> [@TSBG](#): > > The answer isn’t so much a hard and fast line having to with settled law, but one having to do with risk tolerance. For example, the sports leagues are notoriously litigious, so most productions will go to great lengths to avoid jerseys, logos, and other marks (unless it’s approved by the league)–even if they could “win” a resulting suit, it’s not worth the money. Crowd shot on the streets for a documentary and someone in the throng has a Lakers shirt on? Probably okay. Crowd shot for a fiction film? May not be okay, because the production has control over what the extras wear. I understand that, and it makes sense to not use pro team logos so as to avoid unnecessary litigation, but by what theory could the pro teams win? If the pro team sells jerseys, hats, etc with their logo on them - and they do, and I’ve bought my fair share of such merchandise - wouldn’t any such lawsuit be easily slapped down, and be sanctioned as a frivolous lawsuit besides? I’m dreaming I know. Intellectual property lawyers make their bones being big and bad and threatening people with lawsuits that people don’t want to mess with them. ---
**Author:** ![TSBG](https://avatars.discourse-cdn.com/v4/letter/t/77aa72/32.png) [@TSBG](https://boards.straightdope.com/u/TSBG)\ **Post date:** [April 10, 2019, 10:17pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/34 "2019-04-10T22:17:40Z")
> [@zamboniracer](#): > > I understand that, and it makes sense to not use pro team logos so as to avoid unnecessary litigation, but by what theory could the pro teams win? If the pro team sells jerseys, hats, etc with their logo on them - and they do, and I’ve bought my fair share of such merchandise - wouldn’t any such lawsuit be easily slapped down, and be sanctioned as a frivolous lawsuit besides? > > I’m dreaming I know. Intellectual property lawyers make their bones being big and bad and threatening people with lawsuits that people don’t want to mess with them. It isn’t about whether you’d win, it’s about what it would cost to win. Is it worth $10, $20, $30 million to litigate this, even for a $100 billion company like Disney? Clearly not. It would be cheaper to do reshoots, and Disney doesn’t care about the principle of the thing. (Disney’s actually a bad example, because their ownership of ESPN means they’d never take on the leagues. But let’s say.) In practice, what this means is that it’s easier to assert fair use for something like a local paper than it is for any entity with the money to retain a lawyer. It’s a continuum of course. One famous counterexample is “This Film Is Not Yet Rated.” Kirby Dick wanted to use clips from “major motion pictures,” but the cost was prohibitive and the agreements were restrictive. Dick (and his very aggressive lawyers) told the studios that he’d assert fair use for every single clip. I don’t believe there was any legal action. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 16, 2019, 3:52am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/35 "2019-04-16T03:52:13Z")
As I understand it, the argument they would make is that the use of the trademark implies that the company endorses the film. That is the argument that is being put forth in the lawsuit by [_ChooseCo v. Netflix_](https://www.forbes.com/sites/michellefabio/2019/01/14/chooseco-choose-your-own-adventure-trademark-owner-sues-netflix-over-bandersnatch/#7564514d13b2) for allegedly using their “Choose Your Own Adventure” trademark in the interactive film _Bandersnatch_. And, I have to admit, I could see people thinking that the people behind those books were involved in the production of the movie based on their usage. Thought this is because, in the movie itself, it describes the video game (that is a major part of the plot) as being based on a “choose-your-own-adventure book.” Something more incidental would probably be harder to prove. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [April 16, 2019, 4:24am UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/36 "2019-04-16T04:24:03Z")
> [@mikecurtis](#): > > I am trying to make the point that it’s an important source of funding in almost all film making (not just some) and it’s not confined to well known brands like Coke or Apple, or just to big budget films. It’s become such an ubiquitous part of film making **that it’s taught in film schools** , and the larger production companies have departments solely dedicated to it. > > mc …I’m studying in “film school” right now, and I’ve just quickly checked all my required text, and there is zero mention of this. So “the possibilities might be endless”, but we are in “General Questions”, and there are many of us that work in the industry who don’t see anything wrong with the way Johnny L.A. has characterised things. In New Zealand, for example, I would look to the NZ Film Commission initially for funding. Then I’d look at places like [this](http://www.creativenz.govt.nz/find-funding/other-sources-of-funding). The mention here on the NZFC [site](https://www.nzfilm.co.nz/resources/know-how-distribution-and-marketing)mentions product placement: but not in terms of funding, but in terms of “marketing your picture.” So no it isn’t “ubiquitous”. And it isn’t taught in every film school. And not every producer is “chasing the product placement money.” ---
**Author:** ![SOJA](https://avatars.discourse-cdn.com/v4/letter/s/e274bd/32.png) [@SOJA](https://boards.straightdope.com/u/SOJA)\ **Post date:** [April 16, 2019, 12:06pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/37 "2019-04-16T12:06:32Z")
Believe it or not, a lot of what you watch today has been digitally altered. > **['How I Met Your Mother': Why are ads for new movies in old reruns?](https://ew.com/article/2011/07/07/how-i-met-your-mother-reruns-bad-teacher-zookeeper/)** > > How I Met Your Mother: Why are ads for new movies in old reruns? Fair use has limitations. The Insinkerator case someone mentioned earlier is one where it doesn’t really work out. Though these days brands are ready to hop into bed with film studios. Gone Girl is a really good example. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 16, 2019, 2:28pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/38 "2019-04-16T14:28:27Z")
> [@EdelweissPirate](#): > > But aren’t the studios’ motives now pretty much the same now as back then? Studios are in the business of selling product placements, so it’s in their interest to gin up some scarcity and ensure that the only way for a company’s product to show up in a movie is if that company paid for placement. This is what I’ve heard. Studios are trying to sell product placement. So they don’t give it away even in the cases where they don’t plan to sell it. Because if you’re trying to convince Sony to pay you because their products appear in your film, you don’t want them asking why you have a Burger King in your movie and you’re not asking them for money. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 16, 2019, 2:34pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/39 "2019-04-16T14:34:01Z")
One interesting note is _Josie and the Pussycats_ (which is a very good and underrated movie). The movie satirizes advertising and has very blatant product placement throughout the movie using real company logos. And they were aware that regardless of their intent, they were open to accusations that they were doing the very thing they were satirizing. So they made a point of not asking any of the companies for any money or even permission. They gave away product placement for free in order to avoid any appearance of actually participating in the system. ---
**Author:** ![gkster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gkster/32/14107_2.png) [@gkster](https://boards.straightdope.com/u/gkster)\ **Post date:** [April 16, 2019, 8:26pm UTC](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215/40 "2019-04-16T20:26:05Z")
This reminds me of E.T. the Extraterrestrial (a huge 1982 hit, for those too young to remember it) and M&M’s vs. Reese’s Pieces. From ImDB: “The filmmakers had requested that M&Ms be used to lure E.T., but The Mars company denied their request, fearing that E.T. was so ugly, he would frighten children. Reese’s Pieces were used instead, and as a direct result, Reese’s Pieces sales skyrocketed. Because of this, more and more companies began requesting that their products be used in movies - a common practice which was done previously with the James Bond film franchise (the end credits of a Bond film prior to 1982 listed contributing companies with their product used in a feature film). Contrary to popular belief, this was not the birth of product placement. This had been done before in Superman (1978) when a young Clark Kent gets up one morning and there is a box of Cheerio’s® on the table next to his bed. Product Love at First Bite (1979) [37:48], a can of Tab cola would be shown on a shelf. E.T.'s novelization still referred to the candies as M&Ms as opposed to Reese’s Pieces.” > **[E.T. the Extra-Terrestrial (1982) - IMDb](https://www.imdb.com/title/tt0083866/trivia?ref_=tt_trv_trv)** > > E.T. (1982) Trivia on IMDb: Cameos, Mistakes, Spoilers and more... [Previous page](https://boards.straightdope.com/t/incidental-use-of-brands-in-films-and-fair-use/832215.md?page=1)