Coca-Cola, Nike, Reebok, Adidas, UPS, McDonald’s, FedEx, Dairy Queen, Kodak. You may ask what these brand names have in common. These brand names (and many others) all represent trademarks. “That sounds expensive! How can I afford the protagonist in my film to be drinking a Pepsi and eating a slice of Dominos pizza during dinner? I will have to cover up all of the labels.” Unfortunately, this is how most filmmakers think. The thought that producers must obtain permission and cough up more of their dwindling production budget to use every label, sign, or shingle in their film is not entirely true. This concept is a very misunderstood notion of trademark law.
The important part of a trademark is what the mark represents. A trademark represents the source – it identifies who made the goods you are buying or who provided the services you are enjoying. So the big question remains, “Can I use someone else’s trademark in my film?”
The good news is that as a filmmaker, your right to include a trademark in your film is clear. You have a right to include the trademark in your film as long as the trademark or the product bearing the trademark is used as it was intended to be used without any consequences of its use being abnormal or out of the ordinary. Therefore, as long as a filmmaker is using a trademark or logo as it was intended to be used, and do not disparage or tarnish the trademark or logo in your film, you may include such trademark or logo without asking permission to do so. Simple, right?
Like any other rule, there is always one caveat. You as a filmmaker do not have the right to commit trade libel, not even in the name of entertainment. Trade libel occurs when a product or service is falsely accused of some bad attribute. For example, if you showed someone in your film eating a McDonald’s hamburger, then that person immediately keeled over because the food was poisonous, that would libel the trademark.
Another major question that arises sounds something like this, “So if I can use a trademark in my film in a non-libellous manner, why would I want to pay a license fee to clear it?” While the law does not require the filmmaker to obtain permission to use these items in film or television shows, there may be some good business reasons to do so anyway. For instance, broadcast television is an advertiser-supported medium. Therefore, if you used Coca-Cola labels on every beverage, and these beverages are prominently visible on the television screen, you have essentially given Coca-Cola free airtime.
I do not think the network broadcasting your show would be too thrilled giving away free airtime. Additionally, as a filmmaker, you may potentially create more than one film. By showing goodwill and possibly paying or asking permission to use a trademark in your current film, the trademark holder may be willing to support, or even finance a portion of your project (assuming, of course, the trademark holder likened the use of their product or trademark in the film). So while permission to use a logo or trademark may not always be necessary, it may make good business sense to get permission anyway.