Trademarks in the Picture

[Mark B.]

What's the deal with making movies that happen to have copyrighted/trademarked stuff in the background? If I'm filming people in a room, and the footage shows posters on the wall behind them, are my hands tied in getting the film sold if I don't have permissions from the people who made those posters? Or lets say there's a comic book that one of the actors is reading in a scene, do I have to have permission from the publisher of the comic book? How about talking badly about products, or showing a product as being the cause of misfortune to the characters in the film?

I believe in freedom of speech and freedom of art, and I'm curious what the law believes in.

[Bruce Allen]

The law might well defend you. The problem is that if someone really doesn't want their comic book in your movie, they can threaten you with lawsuits and make distributors nervous, etc... at some point it becomes cheaper and easier just to paint it out in post (or make your own fake ones from the start) than to spend time and money defending against their lawsuits. If you are going for large distribution, you usually want an easily saleable product, without any potential lawsuit hassles. Of course, if you are making a documentary criticizing a product, then go for it, take 'em on, you should be okay :) From your post, you seem to outline two different cases:
1. a fiction feature where the appearance of a product is incidental to your artistic message.
2. a fiction feature where the artistic message is specifically tied to critizing a product.

I hate it too, but it's probably just easier in both cases to make your own posters, fictional companies, etc. It's okay, viewers are smart, they'll know who you mean!

Bruce Allen
www.boacinema.com

[number6]

I agree with Bruce that it's probably better to physically remove or remove in post. Also, I wonder if one could blur background in post. Or using DOF tricks, one couldn't make background material almost unreadable, but if someone (like me) is looking at other than the main focus, would still be able to recognize the material in question?

[Keith Alan Morris]

its all about errors and ommission insurance. get it (upon distribution).

[number6]

its all about errors and ommission insurance. get it (upon distribution).

Just curious... do they watch a film before writing the insurance, or do they simply have a standard policy with a standard rate? And, like malpractice insurance, do they refuse to insure someone who has had a previous claim against them or maybe just raise the premium?

[GlennChan]

There's some pretty easy-to-digest and great information here:
http://www.law.duke.edu/cspd/comics/zoomcomic.html


Just curious... do they watch a film before writing the insurance, or do they simply have a standard policy with a standard rate?
I believe they will look through your movie and listen to the audio (especially for music).

2- The law varies between countries. (I believe that link is applicable to laws in the US.)

[Bruce Allen]

Just curious... do they watch a film before writing the insurance, or do they simply have a standard policy with a standard rate?

No, they watch the film.

Bruce Allen
www.boacinema.com

[Mark B.]

There's some pretty easy-to-digest and great information here:
http://www.law.duke.edu/cspd/comics/zoomcomic.html


That was useful, even though it was only for documentaries.

I think I will classify my fictional movies as documentaries. Because really, a fictional movie is just a documentary about a creative idea that someone has had.

[Mark B.]

What's E&O insurance cost? Probably more than an independent can afford. Besides, why should someone have to pay to make artwork? It's time for the creative masses to push back at the rule makers.

[GlennChan]

Lowkus, I don't think you'd be required to get E&O unless you get a distribution or broadcast deal. Though to get those deals, it helps if your film has cleared music and can get E&O easily. Because in practice, your distributor will want your music cleared (even if it's covered under fair use) and that takes time+money. If it's a narrative, you ideally want to have all your music cleared beforehand (whereas if it's a documentary... presumably you may need to jump through hoops as described in that article).

2- I don't believe you have to pay (rights holders) to make artwork if it's covered under fair use. Though in practice, if you intend on making money, you do need to address those issues.

2b- In practice, different niches do different things... i.e. many wedding videographers do not pay for music clearance as it's impractical (though this situation is getting better in some places). In the case of wedding videographers, I don't believe there's money to be made from suing them. Whatever damages you win, you'd likely pay most of that to legal fees and suffer negative PR fallout. So they don't get sued.

3- I don't believe it's the rule makers that are necessarily to blame but litigious companies. For example, branding is very important to Mattel since it's essentially what they're selling (any company can make dolls, but it's their brand that allows them to charge a premium + sell a lot of dolls). So they take a lot of steps to protect their branding... sometimes they go overboard and launch frivolous lawsuits. In one case discussed (in that article), their case was thrown out and they had to pay the defendant's lawyer's fees.

As far as music goes, the major players have proven that they are willing to get into legal battles (i.e. versus Napster, versus people who circumvent copy protection schemes, versus kids, etc. etc.). So I suppose no one really wants to stand up to them (?). And if you lose, it might be very expensive.

Theoretically, fair use does allow you to use copyright music in particular situations (and with particular limitations). So I don't believe that the "rule makers" are to blame here.