If I show a product like a car or can of pop is it trademark or copyright infringement?

by Daren Wait
(BC Canada)

Question: Do product labels have to be contacted or is blurred the easiest option? Thank you!

Desktop Documentaries: I am filmmaker not a lawyer.. so please double check other sources (see response from an attorney below). The way I understand it, with products, it is more in the company's benefit if you show their product. It's free advertising for them! So the only reason to blur out the product is if it's shown in a negative light and you're concerned about getting sued, or perhaps you are showing a painting and don't have permission from the artist. You could even potentially use product placement as an opportunity to get some cash for your movie, although I would say that's fairly rare in a traditional documentary.

Check out Morgan Spurlock's documentary about product placement in documentaries. He takes the issue of product placement to the extreme.

The Greatest Movie Ever Sold (Documentary Trailer)

I would be interested to know if anyone else has experience or opinions about this.

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Jan 19, 2012
It Depends
by: Jaia A. Thomas, Esq.

The most common answer given by attorneys on this issue is.. it depends. First, the appearance of a product such as a Mercedes car or a Coca-Cola can would fall under a potential trademark dispute not copyright dispute.

As defined by the United States Patent and Trademark Office (USPTO), trademarks are those words, symbols, phrases or designs which the public associates with a single source or goods or services.

Whether a product label would have to be contacted prior to use primarily depends on whether there is a strong likelihood of confusion (e.g. would viewers be confused as to who manufactures the Mercedes car or Coca-Cola can?).

As long as the trademark is not represented “as a badge of origin” you should feel comfortable displaying the product without contacting the company or blurring the product.

Be forewarned, however, that companies are less accommodating for those filmmakers who commit trademark libel or tarnishment. Trademark libel occurs when a product or service is falsely accused of some bad attribute (e.g. actor drinks a Coca-Cola and throws up immediately afterwards).

Contact: Jaia A. Thomas, Esq. (jaia@jathomaslaw.com)

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