ASK & DISCUSS INDEX

8 years, 7 months ago - Paddy Robinson-Griffin

If it's featured, it needs to be cleared.

On the downside it's a slow process

On the upside it's called product placement and Smart will lend you a free car if they like the idea. If they really like the idea, they'll lend you a load of other vehicles to pack the shots with, too. That's if the film has any commercial possibility.

8 years, 7 months ago - Nick Cheel

A conceptually moot & engaging question ... speaking from common sense rather than actual industry experience:
- the answer to your third paragraph is surely - no, not at all
- to the second - generically no, but if riffing on a brand ID (as it's intellectual property) would be yes
- to the first - again, I would say no, unless exploiting some form of 'asset' (e.g. a trademark) that pertains to the prop manufacturer/marketer which is not transferred on sale to the eventual purchaser ...

Paddy, as a yardstick does that sound compatible with your cited notion of 'feature' ? Intellectual property has to have some form of robust identifiable characteristic(s) in law ... most material stuff owned is possessed outright and, unless held under lease or licence, is up to the owner to do with which whatever s/he pleases, no?

8 years, 7 months ago - Nick Cheel

In practice though, as a footnote to the prior post, when using a generically-recognisable prop you'd need to be sure that you've checked every possible angle for which intellectual property rights could be lodged & granted ... likely at least to be time-consuming.

8 years, 7 months ago - Paddy Robinson-Griffin

Hi Nick,

The problem is where the rubber hits the road - the legal distinctions of rights and wrongs and exact definitions may say one thing, whilst the person suing you may say the other. Fact is the cost of defending far outweighs the cost of walking away with your head held low - so not getting sued is important as it has the potential to kill the film and waste every penny invested. In industry we take insurance for this, and that insurance depends on a clearance report and getting dispensations to use everything!

If the script shows 'girl plays and talks with her dolls' that's probably not a problem. If 'Barbie doll talks back to girl' is in the script, it's featured and it is a potential problem. A script report will cost the better part of a grand (before you start shooting so you can change the script/start inventing brands/etc) so finding out 'well enough' to get E&O Insurance is a big enough deal that for a stop motion short it's probably a better bet to steer wide of borderline problems. The individual incidents can only be judged in retrospect by a court if challenged - better to not get into that habit if you don't have legal backup.

Better again, get brand owners to give you free product to use - Instead of paying for makeup, MAC are very generous if they like the script and cast, Fiat Group can be extremely generous (if anyone needs action and production vehicles and has a reasonable-sized feature with named cast (casting makes a big difference), PM me and I'll see if we can get you in touch), Mars send all kinds of stuff to get into shot, drinks companies are always keen to place new brands, etc.

8 years, 7 months ago - Dan Selakovich

If this is of any help, Mattel has sued in the past over using their dolls in films. I know of one case where they lost, but it was an expensive way to go for the filmmakers. Get permission.

8 years, 7 months ago - John Lubran

There's been some perverse judgements in the lower courts on both sides of the Atlantic. It's significant that the underlying principles are very similar in the USA as they are in all the other Common Law jurisdictions. Unlike much administrative and admiralty law, which, also perversely, are not common law courts, the jurisdiction for the issues discussed here are within the Law of Torts, which is Common Law. Essentially the onus is with the plaintiff who has to prove a quantifiable loss, including loss of chance (opportunity) or harm. Because cost can escalate in these cases large entities rely on bullying which has resulted in those perverse judgements. Limited companies without assets or estate are the way to fight back because win or lose they have nothing to lose. It's not justice in the moral sense but then that's the system we've acquiesced to right now,

8 years, 7 months ago - Alan Fleet

This thread has now given me cause for concern over a short film I intended to shoot. In a comedy about obsession I want to use life-size cardboard cutouts of Rocky Balboa and Princess Leia; do I need permission? And if so,how on earth do fan-films ever get made?

8 years, 7 months ago - Susi Arnott

Sideways-on, just came across SaviorBarbie instagram account.
No need to make the documentary... hope she's not sued for using the brandname!
https://www.instagram.com/p/BERW7Vvsffu/

8 years, 7 months ago - Paddy Robinson-Griffin

Hi Alan, if you're featuring other peoples IP then yes you need a release (which they won't give, the rights will be for the film styling, the character and the photo itself, plus whoever licensed it for the cutout... so complex it's hard to pick apart) ...however...

Many studios choose not to chase after fan fiction because it's not worth their while to actually sue you, however they would be within their rights to send a 'cease and desist' if the film started to become visible on YouTube, etc. I'm pretty certain they do this regularly, as you would expect to find a LOT more fan-films on YT if they didn't...

I'd suggest making your own cardboard cutouts of some mock icons, then you're free to do as you please without getting into nonsense

8 years, 7 months ago - Paul Campion

Alan Fleet, usually for short films it's not a problem as shorts aren't made for profit. The only issue might be if a product was featured in a way that might reflect badly on the company, but the film would also have to be incredibly widely seen.

8 years, 7 months ago - Andrew N. Hill

Nothing I say should be regarded as a definitive statement of the law so be warned. It is best to get clearance from the manufacturer unless the use of the item is only incidental. I don't whether clearance is legally required or not; it may be in some countries and not in others. Take care not to show the product in a bad light. For example if a car crashes because the brakes failed without having been tampered with by some character in the film the the car manufacturer could sue because the implication is that their cars have faulty brakes. Likewise if a child is injured apparently by a faultily manufactured toy of a well known brand. You should also try to obtain insurance for "Errors and Omissions" so that you're covered if you do get sued and lose the case.