Is unauthorized product placement and portrayal of real people in fiction legal?

Already as a child, I noticed that branded things rarely appeared in fiction (at least in that which was aimed at kids). I remember when I saw “E.T the Extra Terrestrial” (probably during its 1985 re-release, at 5 years old), and being surprised to see “Sesame Street” on the TV in the family’s home. At some point, I noticed that many works of fiction across different media would have either generic products / fictional brands, or parodies of real brands. For example, there was a “Hi and Lois” comic where the family goes on vacation and there’s a “Deltoid Airlines”. Or there’s an episode of the cartoon “Chip ‘n’ Dale Rescue Rangers” where the characters meet a group of mice that are part of a cult devoted to a drink called “Coo-Coo Cola”.

Similarly, it seemed exceptional to see real famous living people potrayed in fictional media. For example, in the cartoon “Tiny Toon Adventures”, there was an episode where the fast food chain Weenie Burgers is portrayed as such a popular place that even the President of the United States comes to eat there. Said President bore a surprising resemblance to Abraham Lincoln, although the cartoon was set in the present. OTOH, there was a different episode where the main characters go to Washington D.C. in order to get legal protection of their world from being cancelled by an anti-cartoon violence lobbyist. In it, we see, as I recall, an actual cartoon George Bush, Dan Quayle, Ronald Reagan, some of their wives, and possible other politicians of the time, who are not disguised at all.

I was well into adulthood when I learned about the concept of product placement. That is, that companies paid to have their products used or displayed as part of a film’s or show’s fictional universe. Product placement would likely explain this example I remember from my teens. “Beverly Hills 90210” and its spinoff “Melrose Place” were both produced by Aaron Spelling. In the former, there’s an episode where one character makes a joke with the expression “soda jerk” and shows another character what seemed to me to be a perfectly realistic can of Coca Cola. On the other hand, in the latter, there was a soft drink dispenser in “Jake’s Bikes”, a character’s motorcycle store/repair shop. This was clearly a Pepsi Cola dispenser, but there wasn’t any “Pepsi” letterning anywhere, and the logo was defaced so as to make it less Yin-Yang-like.

This brings me to my question: are there any laws that govern the potrayal of living people, real branded products, or trademarks, in fictional writing, films, TV shows or other media without permission? If, for example, the aforesaid Hi and Lois comic had illustrated an actual Delta Airlines plane without asking the airline if they could, would the artist have been within their rights to do this? If in the next installment, they had drawn a recognizeable Bill Clinton and had him addressed as President Clinton, would there have been any grounds for the President to sue them? Or if any TV show uses actual Coke cans, or any other product without permission or official product placement agreements, at what point does it become actionable? Surely not all references to real people and products in books, nor all appearances of branded products in visual media, have received permission from the living person, or trademark holder? (To say nothing of political cartoons, media such as “Mad” Magazine, etc.)

Would it depend on how the product or person was portrayed? I know that there are various fictional airlines in films that portray air crashes (e.g. “Trans American”, apparently a parody of TWA, in the classic comedy “Airplane!”), as logically real airlines wouldn’t want to be associated with a disaster story.

#1 You have it right. It depends on how they are portrayed. Portray a product as good and you’ve given them free advertising. Portray it as bad and you may be sued. Same with people.

ETA In his autobiography, Lloyd Kaufman of Troma Films makes very thinly veiled statements against McDonalds and Blockbuster. He openly (and I believe without compensation) praises a product called Ultra-Slime.

That’s no fiction. Come along! You belong! Feel the fizz!

ANAL, but I think that as long as you’re not misrepresenting your relationship with the brand (i.e. giving the audience the impression you’re been endorsed by them) or giving a false impression about the product (like saying it is dangerous or bad) you can do whatever you want.

Of course you might still be sued, but you are likely to win if you can afford good representation.

Whether or not The Big Bang Theory got permission to show scenes that are supposed to be in a Cheesecake Factory restaurant, I’d assume the company was pleased with the exposure.*

*in spite of the implication in one episode that Penny would not be above paying special attention to an obnoxious customer’s food.

The only real reason that brands and people are not named is that most published work has to go through the hands of lawyers.

My considered opinion - not legal advice - is that it is not illegal to bring reality into works of fiction. However, derogatory statements can be subject to litigation. There is no First Amendment right to defamation.

Most of the world runs like the Dope. You cannot even threaten any kind of legal action here without being instabanned. No corporation wants to be sued, no matter how much money they pay their internal counsel to fight these claims. Any mention might be interpreted badly, even one of superlative praise. Lawyers will automatically rule that false names be used, no matter how foolish or obvious the substitution might be.

Of course, this is a generalization not an absolute, although it closely tracks to experience. Parody is a recognized exemption and the reason why MAD and other humor publications can get away with mocking celebrities. Some fiction authors make regular use of real brands in order to place their work deeper into the real world; I think Stephen King is known for this and so are some literary authors whose calling card is their authenticity. Rappers make constant use of name brands in their lyrics, especially as aspirational products showing off their wealth, current or hoped-for.

I’m sure people will enter this thread to list many other exceptions. They exist because their lawyers said yes, just as the majority said no.

The basic answer is that it becomes actionable at whatever point the company wants to act on it.

I don’t mean that to be glib, but it’s just that there isn’t really a hard and fast rule.

Some works censor real products because they don’t want to give the brands free publicity. Some works will also censor real products because they will get paid by a competitors brand and one of the contract stipulations is that only their own brand be shown (which is what happened to Grease, they had a Coke background ad in the background of a scene, but at some later point Pepsi offered them money to promote Pepsi, but the earlier scene had already been shot so they were forced to blur the Coke ad until in the DVD era they were able to digitally remove the Coke ad and paste a Pepsi and in its place.

As far as trademarks go, for example the Coca Cola logo on Coke cans, the million dollar question is,

Is use of the trademark “likely to cause confusion, or to cause mistake, or to deceive”?

(lifted straight from 15 U.S. Code § 1114)

If the script calls for a Coke that acts just like a real Coca Cola, and in fact is a real Coca Cola, there shouldn’t be a problem. If the script calls for a Coca Cola which is glowing green with cancer-inducing nuclear waste, you may want to run that past a lawyer. Obvious parodies or satiricism may be protected, so it depends on delivery.

You can be sued for any reason by anybody, but it takes a judge’s ruling to say it’s illegal. So some people won’t use real brands out of an abundance of caution, even if they might actually win in court. Sometimes off-brands are just used for comedic effect. And sometimes, as written above, they don’t want to give the brand free publicity or have a contractual obligation.

~Max

Several points - (IANAL)
Distinguish between copyright of artwork, trademarks of logos, depicting real people, etc. There are multiple considerations, as others mentioned.

Obviously, saying anything derogatory about a product or a real person (or depicting it as being bad) risks being sued. Media producers have to be careful about what they depict.

Depicting artwork in a commercial event also risks being sued. Artists make money off their art. Giving people a free show of it, or playing music that is copyright, risks the rights owner coming after you for a share of whatever profits you get. There’s a whole field of litigation over copyright violations - but the essence is “fair use”. It can be used in criticizing the item, such as a scholarly discourse. (Or waxing poetic about a “Royale with cheese…”)

As mentioned, there’s actual product placement. A lot of the time, manufacturers are happy to have their recognizable products being used in a non-derogatory way. (i.e. sure they can drive Fords, but don’t show it failing to start while the guy with the meat hook is closing in on them…) As mentioned in the OP, shows were full of made up brands until Hollywood realized they were missing a great revenue stream/

There’s incidental use. If your movie is in Times Square and pans across trademarked storefront names and billboards, then that’s usually Ok. There’s satire. You can satirize something without permission, but better have good lawyers if you are too derogatory or imply something really awful and inaccurate.

Classic examples:

The story goes that IBM worked to help Kubrick with the computer for 2001. Anyone who worked with that era mainframes recognizes the style. However, supposedly wen they found out the computer turns homicidal, they asked to have their brand removed - hence HAL is one letter up from IBM.

I recall an episode of the Dave Letterman show where they brought out a TV to show some videotape at the desk. (Those were the days) The brand name at the bottom had been taped over, and he peeled off the tape. “What’s this for? Oh, it’s a Sony. Here I thought it might be a International Harvester TV.”

Just the other day, a movie showed once in the Toronto Film Festival then was pulled. The People’s Joker used DC comic characters without permission. Theoretically, they could get away with it, because it was parody. However, most movie distributors and theatres require a movie to be insured against copyright before they will distribute it, since the theatre is the one who can be sued. (I.e. “If there’s a lawsuit, your insurance will take care of it and the theatre is safe.”) So movies that tread close to the line may not be able to afford insurance and cannot get distributed. Usually it’s more about whether the music is incidental enough, or whether a documentary has properly acquired all rights to the news clips they use.

One of the new videogame versions (GTA?) uses digital scenery where the popular storefronts and restaurants in places like Times Square have been digitally replaced with paying product placement versions.

I think that, nowadays, the dominant reason is that they don’t want to give away product placement for free, when they could be getting paid for it.

Here’s a clip that breaks the fourth wall in that regard ( “advertising concerns” ).

As others have mentioned, as long as you’re not being derogatory, you can use any product name or image without an issue or permission. People get confused because movies often ask for fees for product placement. But if E.T. had said, “To hell with Mars. We’re using M&Ms,” there would have been no problems (Reese’s, though, was willing to pay).

Note, too, that if you shoot a scene on location and there’s a McDonald’s in the background, you don’t need permission for the shot.

You can’t really portray real people except for satire. But you can make comments about them. Libel for public figures requires that you are making a false assertion of fact that you know is false when you make it. If you’re doing something fictional, it is not asserting the events in the film are factual. It would be hard for a celebrity to win a case if they sued.

”Good idea. Care for a Clark bar on the way dow.? It’s in my breast pocket. As you can see, I can’t eat it myself because my hands are filled with Ajax from cleaning the egg off my face. Nestle’s eggs, I think. Or is it Welch”s? My missus would know. She wears the Totes in the family.”

“Your usage of mundane commercial-product names makes this situation all the more terrifying, because it makes it that much more real.”

Skip laughed. “Pepsi Cola,” he said.

Pops screamed.

Excerpted from Eggboiler by Stephen King*

*(Actually a Stephen King parody novella published in the May, 1984 issue of National Lampoon)

I just asked my daughter, who covered the Toronto Film Festival, about this. One of her friends was planning on going to the press screening. She was very surprised the festival hadn’t cleared it first.

A few years back, Kevin Smith had an amateur short movie contest. I rounded up some volunteer help and put an entry together, but it went nowhere. It was fun, though. Anyway, the reason I mention it here is that the rules stressed very strongly and explicitly that no brand names were to be shown onscreen. I had a scene where an array of women’s makeup products was visible, and we spent a couple of minutes carefully turning all the jars and bottles and whatnot so the names were facing away from the camera.

I think the reason for the rule was likely that Smith (or his lawyers) didn’t want to deal with even the slightest possibility of someone submitting a movie that would be subject to a defamation lawsuit. So just ban any and all brand names, right across the board, and then here’s no room for questions, no gray area.

I’m going to go ahead and presume that this means Am Not A Lawyer.

I just freaked out a little. When I started reading your post I made a mental note to reply that that is my pet peeve with Stephen King’s writing.

I thought it was just me.

mmm

They can be as derogatory as they want. Burger King food tastes like warm, wet cardboard. Budweiser smells like piss. Walmart’s customer service sucks!

What they can’t do is to cross into defamation, which is generally an accusation of unethical or illegal behavior. Burger King makes employees work off the clock. Budweiser contains asbestos. Walmart cheats on its taxes.

To make sure that they don’t cross the line, they like to use fake companies. Lost could have used a real-world airlines instead of Oceanic Air, but given that the plane crashed in scene 1, there was a decent chance that they could have entered defamation territory.

The main reason, though, was mentioned above. Product placement is a commodity, and they don’t like giving something away when they could sell it. Especially if it might impact their advertisers.

That applies mostly to TV and movies. There are plenty of books with things like Arrrgghh, fuckin’ Walmart! I’m never shopping there again!

 
As to portraying real people in fiction, the same basic rules apply. Opinions are not libel, so I could say [Famous Person] is an asshole. What I couldn’t do is to accuse the famous person of beating their kids.

Or could I?

One difference is that public figures are pretty much fair game. The principle is Actual Malice which (not to put too fine a point on it) does away with what a reasonable person might think and relies on what the person actually thought. So Actual Malice is very hard to prove.

So I might be able to say that Donald Trump beat his children (he’s a public figure), but I couldn’t say that Joe from the sales department did so (not a public figure).

And, of course, depicting a famous person on a live-action TV show or a movie generally requires hiring them to perform that role.

Seinfeld famously used lots of real products - yoohoo, junior mints, Arby’s, and one real person George Steinbtennrr. They claim that they didn’t take any product placement money, but just used whatever fit the story. Afaik, they never had trouble with Steinbtennrr.

Should be Steinbrenner obviously. Weird autocorrect.

I used to know a George Steinbtennrr. I called him Suze until he made it very clear that My name is Suzie!