In Part 1, the discussion involved trademarks and how to identify them. Trademarks can pop up in different ways and take many forms.
Back to my new favorite cooking ingredient – Pompeian Balsamic Vinegar and their trademarked bottle shape. What type of permission is necessary to show this trademarked bottle? The bigger question I find that most filmmakers will have is whether the filmmaker has inadvertently opened herself up to liability based upon intellectual property infringement (read costly legal fees and perhaps expensive licensing) by filming a bottle of Pompeian Balsamic Vinegar. The answer to that question depends on other factors.
A trademark usually does not need clearance, with two large caveats. These exceptions are big and the area surrounding the permission should not be navigated alone. I imagine these caveats, which can become quite difficult to navigate, is why most filmmakers simply avoid them altogether. The first exception relates to “disparaging the mark.” An example of disparaging a trademark would be showing the Pompeian Balsamic Vinegar bottle in litter/trash or with an animal defecating on it. The second caveat of use of trademarks in filmmaking is tied directly to television. If television or a network is your medium, then there are complicated Federal Communications Commission (FCC) regulations that dictate the showing of trademarks.
Let’s say that you are producing a documentary for your local PBS television station. The FCC has in place rules related to trademarks on noncommercial television stations like PBS. The FCC mandates that noncommercial stations avoid commercials and/or advertisements. The FCC has held that depiction of a products’ (read, trademark) usage within a program is qualitative and promotional, thus a potential for a commercial or advertisement.
The best example I can think of is the healthy southern cooking Fit to Eat, which airs on the PBS affiliate Mississippi Public Broadcasting and produced in Mississippi. As you can imagine, a cooking program is filled with products that bear trademarks. From Lawry’s seasoning salt, to Ziploc bags to the AlClad pots and pans that are used and even the Pompeian Balsamic Vinegar – a cooking program has the potential to display many trademarks. The creative team as well as the chef for the show took many steps to follow FCC guidelines related to trademarks on television. Instead of saying and showing a Ziploc bag box to store chopped vegetables the chef used the phrase “disposable plastic bags” and had removed the plastic bags from the box showing the identifiable logo. Prior to filming and as a part of pre-production when balsamic vinegar was called for in the recipe, the balsamic was measured out and removed from the identifiable Pompeian Balsamic vinegar bottle. Watch the show online and you will see many examples of where a trademark would make sense, but where it was creatively removed.
The takeaway is this – a filmmaker needs to always keep in mind trademarks and that trademarks are not just the words used to identify the company that makes the product. As we saw with the Pompeian Balsamic Vinegar bottle shape, sometimes a trademark can even be the packaging that holds the product. A filmmaker also needs to keep in mind the avenue of television. Television can serve as the beginning of a run for a product or as the ending after much success is earned in other mediums, such as theater release. Re-editing a completed product is never fun, so always keep in mind trademarks in the composition of your shot.
Stop by http://mpbonline.org/fittoeat/ and watch full episodes of Fit to Eat. How many times can you find where the chef, scriptwriter or producers could have displayed a trademarked logo? There were many opportunities, but the team artfully created a show that told the story without running into any legal implications. Getting around the legal loopholes to tell a great story is another opportunity to show creativity.
What’s your experience with trademarks in filmmaking? Take part in the conversation in the comments section below and stay tuned in.