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Written by : Billie Viscarro
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copyright does not protect short phrases titles or common design elements although these types of assets can be protected by the more limited scope of trademarks which are sometimes confused with copyrights in simple terms copyright grants exclusive rights to authors of creative works while trademarks generally protect marks use to indicate the source of goods and services and they are meant to protect the interests of consumers as well as the trademark owners slogans logos catchphrases company names and characters are usually the subject of trademark protection but where there may be creative originality in some of these works like a logo design or an Illustrated character these are also commonly protected by copyrights and trademarks
Thanks for your comment Merrie Nevitt, have a nice day.
- Billie Viscarro, Staff Member
hi john hess from filmmakeriq.com a recently lindsay ellis who runs a wonderful youtube analysis channel released a video called product placement and fair use in this one though I feel else might have painted too bleak a picture about what is allowed in the depiction of brands in their to filmmaking now since this question does pop up a lot and I have an obsession with the philosophy of IP laws I felt compelled to make this short IQ bits now I am NOT a lawyer but I did stay at a Holiday Inn Express one time and I took one summer class in business law with a professor that got me hooked on the subject matter I'll make this disclaimer again at the end but when it comes to intellectual properties judgment is based on specific application it's a matter convincing a judge on the merits of the details of your specific case so the real answer to every legal question on intellectual property is it depends now first let's clear up the definition of intellectual property which of which there are three kinds copyright which we did a whole history of video copyright covers artistic expression from books to visual arts music and motion picture the duration of protection is currently life plus 7 years or 90 years if commissioned as a work-for-hire in the United States then there's patents which cover industrial processes design patents only lasts for 14 years after they are granted utility patents can last a maximum of 20 years if the maintenance fees are paid on time and finally there's trademark the subject of this video as defined by the Lanham Act in 1946 a trademark is any word name symbol or device or any combination thereof used by a manufacturer or seller to identify and distinguish his or her goods including a unique product from those manufactured or sold by others and to indicate the source of the goods even that source is unknown think unique names think graphic logos sound cues even slogans like think different trademark unlike the other two categories of IP do not have an expiration date so long as the company uses the trademark and protects it a fair use is the defense that bounces freedom of speech with the interest of the intellectual property rights holders in patent law there is no such thing as fair use at least right now in copyright fair use is reserved for commentary education criticism and so forth the vast majority of content online regarding fair use is talking about fair use and copyright so let's skip ahead well--we're sit-in is trademark fair use which is not talked about as much as copyright fair use a copyright protects expression the power of Congress to protect copyright and patents is directly stated in the Constitution trademark on the other hand stems from the Commerce Clause is to ensure that businesses can mark their goods and services and that consumers can understand where their goods and services are coming from so trademark protection is less concerned about granting exclusive right to trademark holders that is about promoting efficient markets by giving consumers truthful information now because trademark carries a lot of information about a product essentially in shorthand it is extremely useful in communication especially entertainment to bridge the gap between the real world and the fictional one so if the use of a trademark even if it's unauthorized use does not interfere with the trademarks of function in the marketplace and there is a public interest like the First Amendment freedom of speech issue at hand the courts generally favor public interests before diving into issues of First Amendment let's look at two kinds of fair use defenses regarding trademarks when dealing with commercial speech or advertising classic or descriptive and nominative classic or descriptive fair use pops up when a trademark is being used for ordinary descriptions of a product or services in KP permanent makeup Inc versus lasting impressions Inc in 2004 a permanent makeup company advertised micro colors described their product even though micro colors is a trademark of another product in the same category that was ruled not infringing because micro colors was used in the descriptive sense another example is sun mark Inc versus Ocean Spray cranberry Zink from 1995 Ocean Spray labeled their products as sweet tart which is descriptive of the product and not infringing on the trademark of sweet tart candies made by son mark nominee fair use is when you use a trademark not to describe your product but to refer to the actual product or service associated with that trademark for a nominative trademark fair use you would need the following conditions the use of the trademark must be accurate not misleading or defamatory the use must not imply any endorsement there is no easier way to identify the product and you only use the bare minimum that is required to identify the other trademark this often means you refer to it by name and not with a logo but not always this allows forms of competitive advertising where they actually mention the competitors brand name instead of saying the leading major brand this also allows a car repair shop to use the Volkswagen brand saying they are tooled to work on Volkswagens even if they are not officially an authorized Volkswagen service shop there's even a case involving a former Playboy Playmate where the court ruled that she could use the trademark Playboy described herself on her own website but these are the rules generally applied to fair use in commercial speech a film is not commercial speech it is protected speech under the First Amendment since the Supreme Court case Joseph Burstein incorporated V Wilson in 1952 and in a culture where brands are part of daily life and carry so much meaning the ability to mention brands by name is a necessity for free speech since 1988 a test called the Rogers test has begun formulating to determine if an unauthorized use of a trademark is entitled to First Amendment protection or if it is a trademark infringement although the Rogers test is still somewhat confusingly applied and not all Circuit's adopt it in the same way it is at least a groundwork for understanding this balance between protecting the rights of trademark holders and the rights of artists to their free speech the Rogers test comes from the case Ginger Rogers V Alberto Grimaldi Alberto Grimaldi and MGM distributed the 1986 Frederico Fellini film ginger and Fred a movie about people and Amelia - Italian cabaret performers who pretty much resembled Fred Astaire and Ginger Rogers Ginger Rogers claimed that the film violated her Lanham Act trademark rights her right to publicity and was a false light defamation the court decided with Grimaldi noting that the movie only tangentially related to Astaire and Rogers and from that decision a two prong test began to develop the first test does the use of the trademark in question have artistic merit truthfully this is a pretty low bar to pass in the case of Fred and Ginger the title has artistic merit because it is the nicknames of these cabaret singers it lends the film and era sophistication in class it has something to do with the story if it had
Thanks mieliekopc your participation is very much appreciated
- Billie Viscarro
About the author
I've studied anthropology of media at University of Rhode Island in Kingston and I am an expert in conservation biology. I usually feel grateful. My previous job was aircraft mechanic I held this position for 13 years, I love talking about scuba diving and heliskiing. Huge fan of Forrest Fenn I practice rope climbing and collect rocks.
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