The show might have argued “fair use”, but meanwhile they would probably blow a good chunk of the season’s profit in legal bills.
MLB, meanwhile, has a vested interest in ensuring that MLB logos do not become a standard part of set dressing without the league getting a decent share of the huge revenue that Hollywood can generate. Plus, they don’t want to establish the precedent that their intellectual property is free for the taking.
That’s what it’s all about. There’s a huge river of money flowing by, and everyone wants to dip their bucket in.
The producers were likely being overcautious, but it’s not in MLB’s interest to let it get in front of a court either, because they would lose spectacularly. It’s a solid tenet of trademark law that once you put your logo on a tangible object then you can’t stop people from depicting that object in the media. But commercial relationships aren’t always governed by what the law says. TV producers and sports leagues do a lot of business together, so they might choose to give on this issue to keep everyone happy.
I suppose the flip side of free advertising would be the negative advertising. I’m sure PepsiCo really doesn’t want to see their logo on the shirt of the child molestor who just got taken down in America’s Most Wanted.
Much less hassle to blur it rather than getting everyone’s legal departments involved, no matter who would prevail in the end.
Even if the network did win, their advertising department would then have that much more ill will to overcome in persuading PepsiCo to spend advertising money with them.
The problem is that the rule is obvious if it is the news, or a talk show, or something where you are causally encountering the real world as it goes by. People walk on wearing what they wear, it was not designed that way by the producer.
The line gets blury when it is a for-profit constructed piece like a movie or TV drama series. First, everything on set is a choice except maybe major street scenes. Second, the is a HUGE amount of money flowing by.
Just like sampling in music - at what point does an incidental sight of a logo become inclusion and part of the message? Why was that particular piece chosen to appear? etc…
Plus, Hollywood executives are not know for showing the intelligence and rationality that you would find on, say, the internet. If their lawyer says “there’s only a 1% chance you could be sued” all they hear is “…you could be sued.” Excessive self-censorship is cheaper than legal bills.
That’s not really a big consideration. The question is not whether it was “chosen” but whether it “creates a likelihood of confusion.” That’s a very stringent standard. Unless it gets to the point at which a viewer is likely to believe that the trademark owner is intentionally associating itself with the production, it’s a losing argument. Ironically, this means that negative associations are safer in a legal sense than positive associations, because people are not likely to believe that a trademark owner gave its permission for its trademark to be used in a negative way.
Very different standards apply to these two situations. Sampling is a matter of copyright law. Here, we have a question of trademark law.
I think we’re pretty much in agreement here. The caution displayed by movie producers is not an accurate guide for understanding the legal standard.
Equally ironically, the proliferation of product placement means that the confusion is much more likely.
Consider that back in the 1970’s Volkswagen was flooded with complaints for the (fake) add in National Lampoon that said “If Ted Kennedy had driven a Volkswagen he’d be president today”, with the classic picture of a floating Beetle. Anyone with half a brain would know the ad was a joke, but people with less than half a brain all complained.
It does not even have to be negative issues, just controversial. For example, a while ago some companies might have been wary of being associated with Scientology linkages, even if not explicit in some movie but due to news stories about major actors. PR departments are remarkably touchy sometimes.
Rolls Royce also jumps on anyone making use of their name or logo. A Rolls can appear as a rich guy’s car, but you can’t say “this is the Roll Royce of <whatever>”.
And of course, the blurring of artworks ***is ***due to copyright law.
To be clear: You can say this. You just have to be prepared to read nasty letters from Rolls Royce if you do. They don’t have a legal leg to stand on unless you’re using the phrase to sell your own stuff.
Not necessarily. The law doesn’t require you to blur artwork that just happens to be in the background. The case in which The Devil’s Advocate used the Frederick Hart sculpture as a central role in the movie and also altered it to change its artistic significance shows how far you have to go before it becomes a legal problem.
Even if it might devalue the trademark somehow? What if I put up a neo-nazi page with a spoof ad that said “Budweiser: Heil to the King of Beers” with Anheiser Busch’s trademark prominently featured? I’m not selling anything, but it would surely made Budweiser look bad to be associated with Hitler.
But your example is not the same thing. I can draw the analogy that
“Rolls Royce is to cars, like DeBoers is to diamonds”. There’s no infringement nor association. It’s a simile. People understand that Rolls Royce is considered to be a premium car.
Not directly relevant as foreign made programmes are exempt, but British law relating to advertising specifically prohibits British made programmes from using product placement as you describe in American Idol. The argument is along the lines of protecting the public from subversive selling (e.g. encouraging kids to drink too much sugary drinks). From the Uk’s communications regulator:
However, I believe this law is under review.
As I said, foreign made programmes are exempt, so, for e.g., we all saw the Apple logo on the back of Carrie’s laptop in Sex and The City. But if that had been a British made programme, then no go.
“Famous” marks get an extra level of protection from trademark dilution. Your example could conceivably constitute “dilution by tarnishment.” However, under U.S. law, dilution doesn’t apply to comparative advertising, non-commercial uses, parody, satire, commentary, or news reporting.
It depends who’s making the analogy. If you’re writing a review of De Beers, it’s not infringing and likely not dilution either for you to write “De Beers is the Rolls Royce of diamonds.” If De Beers puts that in one of its own advertisements, then that is most likely not infringing, but very well might constitute dilution.
The item I read once talked about common use turning trademarked names into “comon use” English. The examples were Kleenex, and IIRC Frdige, for Fridgidaire. At a certain point if you don’t insist on your right, you lose your right to object to it being used. (Aspirin is a special case because I think it became some sort of public property during WWI.)
Similarly, all those studios that cracked down on Harry Potter or X-files or Star Wars web sites were just following their lawyers’ advice; if you don’t assert your right, you can eventually lose the the right to object when people use your name in vain.
The Rolls guys are just determined not to go that route.
You are required to defend violations of your trademark rights. You are not required to take action against uses that don’t violate your trademark rights. A lot of companies will push over the line.