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Can Independent Filmmakers include trademarked logos in their work?

Hmm, I wonder who's hand that is?

Hmm, I wonder who’s hand that is?

If you’re an Independent Filmmaker I’d be willing to bet that at some point in your life you’ve spent time on a film set hiding trademarked logos.  I bet you’ve told actors to go change out of their Bears Jersey or turned around every box and can in a character’s kitchen cupboard or stuck sticky notes over the Apple logo on an ipad or laptop.  In fact, this obsession with hiding logos runs so deep that blank T-Shirts and backwards-boxes of cereal and strategically placed sticky notes have become part of the modern indie ascetic.

But are these precautions actually necessary?  Most indie filmmakers believe they could “get in trouble” if they show a character eating at McDonalds or wearing a Dodgers cap.  The idea that this constitutes Copyright Infringement has been passed from one misinformed film school student to another for decades.  But the truth of the matter is this; filmmakers are protected by the First Amendment.  We have the right to create art that includes a bottle of Miller Light or a Holiday Inn sign or a close up of a Bridgestone tire because our world is FILLED with these types of branded images.  We are surrounded by them.  So if we go out of our way to hide these logos, we’re presenting a false, brand-free version of life in 2015.

I’m not surprised that filmmakers realize any of this because these days most Americans understand how copyright laws work.  A filmmaker can’t include a clip of a Mickey Mouse cartoon in a film without first getting permission from Disney.  So obviously we would need to get clearance to use footage of people wearing an official Mickey Mouse costume at Disney World, right?

But the two scenarios are very different.  In scenario #1, we’re taking a copyrighted video and putting in another copyrighted video.  But a Mickey Mouse costume isn’t copyrighted.  The character is TRADEMARKED.  That means you can’t put Mickey’s face on a T-shirt and sell cheap bootlegs in front of Disneyland.  But it doesn’t mean you can’t point your camera at a Trademarked character that a company has decided to place out in public view.  We all have the right to document the world around us.  So if a filmmaker really did have to put a sticky note over an Apple logo, that would be a small act of censorship.  And Disney and Apple and Spite would be violating your First Amendment Right to Free Expression if they tried to force you to alter your shot or your vision or your scene.  Basically, your constitutional rights trump federal trademark laws.  Here’s a really great video that explains this issue in a little more detail.  These are two lawyers who are talking about how they helped “Escape From Tomorrow” get distributed.  If you haven’t seen that film, it’s really pretty good.  It’s a horror movie and most of it was surreptitiously shot at Disney World.  The plot is a little goofy (no pun intended) but overall the film is a dark and creative essay on the dark side of being a husband and father.
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Now a word of warning, as one of the lawyers just said, if you’re going to include protected items in your film, you need to show them being used in the way they were meant to be used.  Tommy Hilfiger embroiders his name and logo on to polo shirts because he wants people to see his name and logo.  So if your character is wearing a Tommy Hilfger shirt, you’re not going to have to have any problems.  But if you put a Tommy Hilfiger logo on a Nazi Uniform and have a character claim that the company secretly sells uniforms to neo-nazis, you’re committing an act of slander.  And you can show a character drinking a bottle of Sprite without first getting permission from the brand.  But if a character in your film gets cancer from all the chemicals in a bottle of Spite, you better believe that you’re gonna be hearing from the company’s lawyers.

Also keep in mind that absolutely none of this applies to commercials or video contest entries.  LEGALLY you’re allowed to include unrelated products or logos in your entries but if you do, you’ll probably be in violation of the contest’s rules.

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Recycling footage for fun and profit

recycle_binsI was poking around the Internet today searching for some recent video contest results that I could post when I saw an ad for the “Heaven Now” video contest.  For this competition people supposed to explain what heaven on Earth would be like for them.  The contest was already over so I watched the two winning entries.  (Two videos split the $3,000 grand prize.)  I didn’t think they were really worth posting so I left the page and resumed my search.  But after about two minutes I was compelled to re-watch the Heaven Now videos.  Why?  Because after just two minutes, I couldn’t remember anything about what the Voice Overs in these videos had said.  I re-watched the winning entries and I gotta admit, they’re sort of brilliant in the way that they say absolutely nothing.  And on top of that, it seems like both of the filmmakers who created these entries just recycled footage that had been shot for other projects.  One of them is very obviously just a montage of some guy’s adventure/vacation footage and the other one consists mostly of shots of a sad girl wandering around a field, a beach and a forest.  She’s shown in both winter and summer so it looks like at least some of the clips were shot long before the Heaven Now contest was even announced.  In fact, I have a feeling that the entire entry was originally a music video or a student film.

So while I don’t really think these videos are entertaining, I gotta tip my hat to the filmmakers here.  Instead of going out and shooting a  bunch of new footage, they just recycled some cool and/or beautiful clips from other projects.  Then they recorded some voice overs that SOUNDED emotional and deep but that were really just sorta vague and pointless.  Again, that is not an insult.  These filmmakers knew exactly what the judges were looking for and they gave it to them.  So while these entries might not be very interesting, you should watch them.  They might just inspire you to create a fully-recycled entry of your own some day.

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How did Doritos do on the USA Today Super Bowl Ad Meter?

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This is more scientific than this year’s USA Today Ad Meter

The USA Today Super Bowl Ad Meter used to be a big part of the Crash the Super Bowl contest.  Actually, it was a big part of the Super Bowl, period.  But have you noticed that no one really talks about the Ad Meter any more?  That’s because a few years ago, USA Today changed the way they run the Ad Meter and now it’s pretty much a pointless waste of time.  The paper used to set up focus groups in different cities and they had participants watch the Super Bowl ads in real time.  If a viewer liked what they saw, they turned a dial up.  If they didn’t like what they saw, they turned a dial down.  It’s sounds simple but no one else was generating scientific-ish data about the popularity of Super Bowl commercials so the Ad Meter was always big news the day after the game.  But now USA Today scrapped the testing and turned the whole thing into a lame online poll.  Anyone over the age of 18 can register and vote and there’s not really any kind of regulations or oversight.  So if Budweiser wants to do well in the Ad Meter they can just send out a company-wide e-mail and ask their thousands of employees to rate their commercials five stars or whatever.

For years Doritos used to promised big cash prizes to any CTSB finalist that could score the #1, #2 or #3 spot on the Ad Meter.  But now that the Ad Meter is just another dumb online voting thing, FritoLay has decided to just give a million bucks to the CTSB finalist that wins THEIR dumb online voting thing.  But just for old time’s sake I thought I’d check and see how this year’s Crash the Super Bowl finalists did on the Ad Meter.  It turns out they did good but not great.  Middle Seat was the 5th highest rated ad of the night and When Pigs Fly was the 11th highest rated ad.  So what does that mean exactly?  It means nothing because like I said, the Ad Meter isn’t “scientific” any more.  It’s just another pointless online poll so who cares?  If you’re answer to that question is “me, I care!” then head here to see the full results of the 2015 Super Bowl Ad Meter.:  http://admeter.usatoday.com/results/2015

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Should Doritos ban professional directors from entering the Crash the Super Bowl contest?

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Just a few hours after the big game ended, FritoLay revealed that “Middle Seat” was the grand prize winner of the 2015 installment of the Crash the Super Bowl contest.  The news wasn’t supposed to be released until Monday but FritoLay had to make a quick announcement after actress (and Crash the Super Bowl Judge) Elizabeth Banks tweeted out the above photo late Sunday night.
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As the winner of the Crash the Super Bowl contest, the director of the “Middle Seat”, Scott Zabielski, will receive $1,000,000 and and a “Dream Job” at Universal Studios.  Right now it’s unclear what Zabielski’s job at Universal will be (it might be related to Development) or even if he’ll accept the offer.  Frankly, I wouldn’t be surprised if he turned the gig down.  Mr. Zabielski doesn’t really need to “break into” the film industry because he’s already got a pretty impressive career going.  Currently he’s the producer and director of the highest rated show on Comedy Central, Tosh.0.  His track record has already gotten him a lot of attention in Hollywood and in 2012 he was hired to direct the new Police Academy reboot.  That version of the reboot eventually fell apart but Tosh.0 is a money-making Juggernaut so eventually someone is going to hire Zabielski to direct a big-budget commercial or a major motion picture.

This year marks the first time that a legitimate, successful, professional director has won this competition.  Nine years ago Doritos created the Crash the Super Bowl contest because they wanted to launch the careers of aspiring filmmakers.  The whole premise behind the promotion was that “Average Joes” would be able to “crash” the biggest advertising event of the year.  So personally, I think it’s unethical for a professional filmmaker to enter a contest that’s meant for amateurs and semi-pros.  Don’t get me wrong, I think “Middle Seat” was a very funny ad and it was easily the best entry in the Doritos’ Top 10.  But just because a professional director CAN call in tens of thousands of dollars worth of favors and shoot a high-quality commercial that would probably beat out all the real zero-budget, “fan-made” entries doesn’t mean he SHOULD.

But hey, who can resist a million dollars right?  At least 90% of Crash the Super Bowl ads are shot by amateurs and consequently more than 90% of the entries aren’t good enough to air on TV.  So FritoLay’s million dollar grand prize must look like easy pickins to a professional director.  But you can’t just throw your professional ethics out the window because there’s a bunch of cash at stake.  It is simply inappropriate for a successful director to punch below his weight so he can win a cash prize that was intended to be a “follow your dreams” windfall for some aspiring filmmaker in Indiana or Vancouver or Osaka.

I’ve watched and read a lot of the interviews Zabielski has given and I think he knew that he was doing something kind of skeezy here.  For the last few weeks he’s been bending over backwards in an effort to paint himself as just another “average joe.”  Here’s a promo video he shot for FritoLay.  Skip ahead to the 33 second mark to hear his thoughts about how great it is that Doritos gives “average people” the chance to have their work seen by millions of people.
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Just for the record, Tosh.0 gets about two million viewers per episode (not counting re-runs).  So Scott Zabielski is definitely no Average Joe and his work is already being seen by millions of people every week.

Even the alleged budget for “Middle Seat” seems like a fabrication.  Zabielski claims that he only spent $2,000 to produce his entry.  Despite what I just said about zero-budget filmmakers, a lot of well-funded semi-pros have managed to make the CTSB finals over the years.  (Some filmmakers gamble everything they have for a shot at the Top 10)  So when you compare it to past CTSB budgets, Middle Seat’s $2,000 price tag seems reasonable.  But any producer will tell you that there’s no way in the world Middle Seat cost only $2,000 to create.  As one reader pointed out, the entry was shot on a set at the “Air Hollywood” Studios.  Here’s what one of Air Hollywood’s plane sets looks like:

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Major TV shows like Lost and movies like Bridesmaids are shot on those sets. Here’s a sample price guide from the Air Hollywood website:

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So a pre-lit, Narrow-Body Jet interior plus a location fee and an air conditioning fee would come to $11,000.  So why would a director lie about how much he spent on his Crash the Super Bowl entry?  Well, because no one is going to root for the guy who already has ten or twenty grand to blow on a video contest entry.

The rules of the Crash the Super Bowl contest don’t explicitly say that professional filmmakers are prohibited from entering.  But they should.  Doritos could keep out the pros simply by adding a rule that bars members of the Directors Guild of America from participating.  Getting into the DGA is pretty tough so I think it’s a pretty fair way to measure who is a pro and who isn’t.

But unfortunately, Doritos will never institute a rule change like this.  That’s because they LOVE IT when professional filmmakers borrow a $20,000 camera rig and rent a fake airplane set to shoot a “low budget” CTSB entry.  The contest judges do seem to prefer great, authentic, low-budget ads.  But every year a few pros splurge and and shoot entries like Middle Seat.  And these high-quality professional entries are like an insurance policy for FritoLay.  They ensure that there will always be a few TV-quality ads in the mix.  So if the Average Joes blow it one year and submit a bunch of junk, the judges can run one of these slick ads and then just do a little spin to downplay the director’s true background.

I know that Doritos will never explicitly ban professionals from entering the Crash the Super Bowl contest, so I would like to propose an alternate solution to this problem.  FritoLay has been giving away these studio “Dream Jobs” for a few years now.  The rules should state that the “Dream Job” isn’t optional.  If a filmmaker wins the grand prize, he or she must accept the ENTIRE prize package.  The winner can’t just take the million bucks and then turn down the studio job.  You can either accept the prize package or decline it.  If the winner declines the prize, it would automatically be offered to the 2nd place winner.

Last year the Grand Prize in the Crash the Super Bowl contest was a million dollars plus the a chance to work on the set of the new Avengers movie.  Do you think the director of one of the most popular TV shows on cable would quit his job so that he could spend four months making photocopies for Joss Whedon?  That actually sounds like a pretty kick-ass gig to me and I bet most of the people reading this would agree.  But for those filmmakers out there that think a job like that isn’t worth their time, maybe they shouldn’t be entering this particular contest.  As I said, it’s not clear yet if Mr. Zabielski will accept the 2nd pat of his prize package.  But I hope he does.  It would be a real shame if an opportunity like this just went to waste.

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“Middle Seat” and “When Pigs Fly” win the 2015 Crash the Super Bowl contest!

With four minutes left to go, Super Bowl XLIX is still a nail-biter.  But the 2014-2015 installment of the Crash the Super Bowl contest is finally over.  The two winning fan-made commercials were:

Middle Seat by Scott Zabielski:

and When Pigs Fly by Nelson Talbot:

Here’s what it looked like inside FritoLay’s private box at the Super Bowl when “Middle Seat” aired:

Click image to view

Click image to view

Man, there were a lot of good sports in that box.  And that includes Elizabeth Banks.  She didn’t try and squirm away when the winning director gave her a weirdly long hug.

I wasn’t surprised when Middle Seat aired but I really didn’t think When Pigs Fly would win.  Both commercials looked damn good and for some reason, When Pigs Fly just seemed more amusing on TV.  We’ll find out tomorrow morning which commercial was picked by the judges and which one won the online vote.  The ad picked by the judges will get $50,000 and the one picked by the fans will win a million bucks.  Middle Seat was the best and most professional finalist this year so I have a feeling the judges picked that one.  If I’m right, that means that When Pigs Fly will probably take home the grand prize.

UPDATE:  Ha.  Well I was wrong.  “Middle Seat” won the million dollars!

http://www.latimes.com/local/lanow/la-me-ln-super-bowl-commercial-middle-seat-20150202-story.html

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Which Doritos ads will Crash the Super Bowl on Sunday?

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Two of these ads will air during The Super Bowl on Sunday.  But which two!??!

Super Bowl XLIX is still three days away but a whole buttload of Super Bowl commercials appeared online this week.  Did you see that Godaddy ad about the lady who sells the puppy?  Crap like that is one reason why I transferred my web hosting away from Godaddy.  On the flip side, that Snickers ad with Danny Trejo is going to go down as one of the best Super Bowl commercials of all time.  But that’s not surprising because Danny Trejo can do no wrong.

So what about Doritos?  Frito-Lay never reveals which Crash the Super Bowl ads are going to air so for now we’ll just have to make some educated guesses.  One of the winning commercials was picked via an online vote.  So let’s take a look at the view counts for all 10 finalists and see which ones were popular:

Lemonade Stand: 488,387 Views
Baby’s First Word: 475,221 Views
Middle Seat:  470,870 Views
What Could Go Wrong?:  429,607 Views
Trouble in the Back Seat:  423,582 Views
Doritos Angler: 413,067 Views
When Pigs Fly:  402,214 Views
Selfish Sneezers:  388,147 Views
Doritos Manchild:  379,307 Views
MissSpelling Bee: 373,552 Views

The numbers are pretty close here and there’s no clear landslide winner.  But I think Lemonade Stand will wind up winning the public vote.  I remember one year about 750,000 votes were cast in the CTSB contest so “get out the vote” campaigns don’t really have much affect.  Even if a contestant went on the local news and managed to get 1,000 extra people to vote for him, most of the votes in this contest will come from people who watch a few entries and then pick their favorite.  And since Lemonade Stand is objectively the best ad in the bunch, I think it’s going to win the million dollar grand prize.
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Second place is a little harder to predict.  The second ad will be picked by the judges at Frito-Lay and I wouldn’t be surprised if they selected one of the weirder finalists.  Middle Seat is a great ad too but it contains a quick joke about Irritable Bowl Syndrome.  It’s a cheap shot that would upset a lot of people so I think that one joke will keep Middle Seat off the air.  And I can say with almost 100% confidence that there’s no way in hell that Trouble in the Back Seat will air.  That’s because AdWeek noticed something that I pointed out weeks ago; Trouble in the Back Seat was a little too similar to this Award-Winning European commercial:
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Is Trouble in the Back Seat a rip off?  I can’t say for sure.  But FritoLay isn’t going to spend 4.5 Million dollars to air a commercial that MIGHT be based on a stolen idea.

The remaining ads are either too gross for the Super Bowl (Selfish Sneezers, MissSpelling Bee) or just not very original.  So I’m going to go out a limb here and predict that the judges will give second place to What Could Go Wrong?
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I like this one because it’s cute and has a nice, low budget feel. Plus it has a weird and shocking ending.  The folks at Frito-Lay want two things here; they want people to re-watch the CTSB ads online and they want viewers to tweet and post about the commercials right after they air.  And What Could Go Wrong? Will accomplish both of those goals.  Plus the director of the ad has a great backstory….
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Good Luck to all the finalists.  I’ll post the results of the Crash during the game so check back here if you miss any of the winners.

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