We all know that manufactures pay movie studios to show their products being used in the film. Sometimes this is so obvious it’s sickening.
But what if a movie portrays a character using a product when the products maker did not pay for nor want the product used in a movie? Does the product have legal recourse?
An example could be, a movie portrays a 15 year old drinking Jim Beam through out the film. Now, what if the Jim Beam distillary doesn’t like this. Can they stop it? Or can the film producers use/show any product they want?
What about porn movies? What if a hard core porn movie showed women douching with Coca Cola? Does the Coke company have legal grounds to stop them from putting that in the film?
What if the porn actors were only drinking Coke on camera, but Coke didn’t want their product shown in a porn flick. Could the stop it?
I know that there have been times when companies (the one I work for, for example) have paid for product placement, and then find out that the product was not used as nature (or the company) intended. So the net effect was that we paid money to have our product shown in a less than flattering light. But the movie was a comedy so someone at my company should have done something to guard against this. In this case the contract was not set up with enough control and IIRC the marketing folks involved were sacked, or at least effectively sacked.
(If you want to know the movie and product involved e-mail me and I’ll send you a note).
I don’t know about the legal ramifications of using a product in a less than savory aspect if you don’t have a placement contract with the company.
Example: Pepsi paid some money to Fox to have its products placed in Fight Club. So in the background of most of the violent and disturbing scenes, you can see a Pepsi or Mountain Dew machine.
As far as the original question, this is one of those issues of “fair use.” As long as the filmmakers show the product neutrally, pretty much anything is fair game. Obviously logo’d products like beer and cereal are easy to pick out and replace, but consider stuff like Nike shoes, Timex watches, and so on, commonly used items that the filmmakers would have to avoid if they weren’t allowed to use any identifiable products at all.
If the filmmakers show the product in a libelous/slanderous manner – getting a hideous face-rotting disease within minutes of drinking a Dr Pepper, for example – then obviously the company can sue. (In fact, in the Blue segment of Kieslowski’s Trois Coleurs films, a car crashes into a tree, killing the driver and passengers; there’s actually something in the end credits to the effect of, “Thanks to BMW [or Saab, or whatever it was] for the use of their car, which would not actually kill its occupants in the manner depicted,” or something similar.)
That doesn’t stop companies from suing anyway, even if it’s technically legally groundless, if they feel slighted. It’s the old “our legal department is better funded than you are” threat, and it’s why most independent filmmakers use fabricated fictional or generic products in their shows. If they had the money to see the battle to its protracted conclusion, they’d probably defeat the company on the merits, but why invite the hassle?
The first big product placement that I can recall was in the movie E.T. Remember the trail of Reese’s Pieces? The story goes that some M&M/Mars executive thought Spielberg’s idea of a space alien in suburbia was patently ridiculous, and rejected the idea of their product appearing in it, much less paying for that privledge.
So, yes, to show a particular product in a movie, you have to get permission from the owner of the trademark of that product. Typically, some standard papers are provided by lawyers of one side, which the other side sometimes modifies slightly. Then, much signage occurs with money exchanging hands, the direction of which depends upon which side needs the other more. As ShibbOleth notes, sometimes the contract has loopholes that make one side pretty steamed, but without much legal recourse, not that that always prevents them from suing anyways just out of spite.
As another anecdote, a video game which I worked on had in it a vehicle that looked too good. The publisher of the game made the artist go back and change the vehicle because they were afraid of a trademark infringement lawsuit.
An example of this happened in the movie “Planes, Trains, and Automobiles”. Chrysler felt that one of their products was not portrayed in a positive manner and sued. The producers were able to prove that sales of Chrylsler LeBaron convertible sales increased the first 3 weeks after the movie was released and prevailed.
Do you have a site? I’m more inclined to believe the fair use law. According to you, if the film showed a guy simply drinking a soda, the producer of the film would have to get permission from the company that makes that soda. It would seem to me that this would drive movie directors nuts, and every movie would have generic/fake name products in it, except for those products that were paid to be there.
On the other hand, I’m completely ignorant about the issue, which is why I asked the OP in the first place.
Well, before I drag out a cite, I’ll point out that just because something might be fair use, it won’t stop someone with a chip on their shoulder and deep pockets from suing said movie maker into oblivion. That threat in and of itself is enough to make every producer overzealous in scrutinizing every object that appears in the movie. Yes, it’s a lot of work; it’s part of why you pony up nine bucks for a ticket these days.
Basically, what it says is that if you have anything you intend to sell or that might be sold, and you have in it a representation of some trademark, you are implying that the owner of said trademark approves of your product, and if you haven’t gotten permission from them, then you are diluting their rights, for which you can be made to pay them money, or even prevented from marketing or selling your product.
Well, like I said, it depends upon who needs the product in there more. In mainstream movies, with products that are desperate for publicity any way they can get it; yeah, they’re probably paying money to the producer.
However, going back to the game I worked on (MX2002 for the Xbox, btw) we wanted to give the game a very realistic look, and had to pay the trademark holders of all the equipment that we allowed riders to equip. Yes, we’re paying Kawasaki for the privlege of advertising their motorbikes, but the size & demographic of our audience wasn’t enough to sufficiently thrill them to pay us money instead.
There’s an example of this in the movie Welcome to the Dollhouse. There’s a scene featuring an amateur band practicing in a garage. The lead guitarist is playing what I immediately recognized as a Rickenbacker guitar. However, the logo had been covered with black tape. I’m guessing the producers of the film did not get permission to use the guitar in the movie or, perhaps, didn’t WANT it.
You can also see the same thing in early eps of The X-Files when Mulder and Scully get a car from the the carpool, the easily recognizable Ford blue oval is masked out. Everybody KNOWS it’s a Ford. Back in the 60’s & 70’s, the end credits would almost always feature a “Automobiles provided by (insert name here)”.