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.
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.