What A Job: Making Sure No Brands Appear In A Movie

from the holy-waste-of-resources dept

Thu, Aug 6th 2009 8:59am — Mike Masnick

Rob Hyndman alerts us to a column from an entertainment industry lawyer, explaining his job in "errors and omissions clearance procedures." Basically, the job is watching movies to make sure nothing gets on the screen that doesn't have permission:

Every single character's name in the script must be checked to ensure there isn't someone out there with that exact name who may think they are being portrayed without their permission. All the proposed signage for stores, institutions and other locations must be researched to ensure the names and logos are not subject to copyright or trademark restrictions. If the characters and locations are real, permission must be granted and consents signed. Only certain phone and license plate numbers may be used.

Once the script is written and production begins, all props on set must be checked to ensure no copyright or trademark infringement exists. Fictional cereal being eaten in the fictional restaurant by the fictional family must be cleared before the box can be put on the table.

A rough version of the finished production is then reviewed to ensure nothing was missed and no golden arches appear in the background of the outdoor shot at an intersection in a busy downtown location.

What a stupendous waste of time, money and resources. But it shows what a ridiculous society we've created, where intellectual property law means that you can't have a McDonald's appear anywhere in the background in a movie. I'm sure that's exactly what our founding fathers were concerned about when they put in place the constitutional clause about "promoting the progress."

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Filed Under: entertainment law, intellectual property, jobs

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Anonymous Coward, 6 Aug 2009 @ 9:07am

Maybe that's why movies are so expensive to make.

"We need to enforce our copyrights so we can make $200 Million movies, which cost as much because of someone else's copyrights"
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lavi d (profile), 6 Aug 2009 @ 9:18am

No(More)Stalgia
What a stupendous waste of time, money and resources.

Not only that, but one of the joys I get from watching older movies is seeing how the world used to look "back then"
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- Hulser (profile), 6 Aug 2009 @ 9:56am
  
  Re: No(More)Stalgia
  Great point. I watched the movie Bullitt the other day and while it was a bit slow-paced by today's standards, I enjoyed examining all of the detail in the street scenes. It was fun just to see how street life had changed since the 60s. All of the "accidentals" would surely have made a modern entertainment lawyer's head explode.
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  - lavi d (profile), 6 Aug 2009 @ 10:17am
    
    Re: Re: No(More)Stalgia
    I watched the movie Bullitt the other day
    
    Excellent flick. I think that might be the first "realistic" chase scene filmed. Before that it seemed that most chase scenes involved speeding up the film. Man was that hokey.
    
    More "old days" street scenes in the original "Fun with Dick and Jane", by the way.
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    - Anonymous Coward, 6 Aug 2009 @ 10:03pm
      
      Re: Re: Re: No(More)Stalgia
      Yep Bullitt has a great car chase that is still referenced today as one of the best.
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      - nasch, 7 Aug 2009 @ 8:46am
        
        Re: Re: Re: Re: No(More)Stalgia
        Ronin has a great chase (and long) scene too... um... totally off topic. Oh well.
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- Anonymous Coward, 6 Aug 2009 @ 10:02pm
  
  Re: No(More)Stalgia
  I'm with you on this one. Old movies are a glimpse at the past culture as well because the behaviors you saw in the movie were VERY much like people looked and behaved otherwise. This is increasingly not the case today.
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Chronno S. Trigger (profile), 6 Aug 2009 @ 9:23am

holly crap
It's amazing that new movies get made. It's even more amazing that there are any outside shots at all. How can they take an establishing shot of San Francisco if they have to worry about all the trademarked logos that may show up?

Do they worry about the fake products that have been in other movies? Would they have to worry about using a box with Sugar Bombs on it?
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- Azrael (profile), 7 Aug 2009 @ 11:23pm
  
  Re: holly crap
  But they have to worry about logos that may show up: how otherwise would the be able to put in place the constitutional clause about "promoting the progress", more precisely to promote the progress of the lawyers wealth .
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Anonymous Coward, 6 Aug 2009 @ 9:25am

Mike, this isn't a very unusual think. The license plates and phone number thing is there to protect people who might otherwise get hassled by late night phone calls, annoyances, etc. There is no reason for a movie to cause liablity for itself.

The backgrounds are one of those interesting problems. Most often, it isn't a question of wanting specifically to block something, as much as movies often sell the location and appearance in the backgrounds and foregrounds to companies. The type of car, the soda they drink, etc. All those things are product placements that make money. One of the ways to support product placement is to make sure there are no accidentals. Plus it eliminates any potential legal issues further down the road.

As was discussed in the "picture of the wall street bull" thing, it's a question of ownership rights as well. Releases are a huge part of making any movie or TV shows now, to avoid any legal claims later.
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- kirillian (profile), 6 Aug 2009 @ 9:44am
  
  Re:
  um...ya...I think that was what Mike was pointing out - only, he was questioning the sense of it all.
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- Hulser (profile), 6 Aug 2009 @ 9:50am
  
  Re:
  Mike, this isn't a very unusual think.
  
  Whether it's usual or not is besides the point. The point is that even if it is usual, it's a colossal waste of effort. It's easy enough to use a phone number that starts with 555 or come up with a fake license plate number, but that's not what's costing all of the wasted effort. It's the liability. Sure, if you sign a contract with Pepsi for product placement in your movie, you'd want to make sure that no Coke products showed up. But, if I'm not selling out by selling product placements, I shouldn't have to worry about whether a Pepsi or Coke product shows up, but that's what they have to do because of the ridiculous intellectual "property" laws we have.
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  - The Anti Mike (profile), 6 Aug 2009 @ 10:04am
    
    Re: Re:
    It's usual, it's normal, and it's part of the game. It's part of the process of finding locations.
    
    Heck, how much did that luncheonette place make after being on Sienfeld?
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    - Anonymous Coward, 6 Aug 2009 @ 10:20am
      
      Re: Re: Re:
      "It's usual, it's normal, and it's part of the game. It's part of the process of finding locations."
      
      And it shouldn't be. It's a waste of money, time and resources. The systems needs to be changed so that is kind of thing isn't necessary.
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    - Azrael (profile), 7 Aug 2009 @ 11:19pm
      
      Re: Re: Re:
      Heck, how much did that luncheonette place make after being on Sienfeld?
      
      Nothin', since it was as fake as that whole series.
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- Anonymous Coward, 6 Aug 2009 @ 1:08pm
  
  Re:
  License plates + Phone numbers are ENTIRELY DIFFERENT than something like a McDonalds in the background.
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Anonymous Coward, 6 Aug 2009 @ 9:43am

no commercials in movies, WoOt!

Thier so stupid they are falling right in even though it is not really what they will want in the end.

DoH!
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PRMan, 6 Aug 2009 @ 9:47am

It's not like they can't show stuff...
They "clear" everything so that they can charge for the few remaining "appearances". There are TV shows such as Extreme Makeover: Home Edition, which blur everything. They make tons of money showing the products of the contributors of the materials.

Many other shows (such as Dog the Bounty Hunter) have no qualms about tooling around Hawaii showing everything and meeting in a McDonald's parking lot (at the runner's request).

They don't charge companies for placements and they don't care if they show everything on their show. They do blur license plates and faces of people who don't want to be on the show, but that's it. I've never seen a trademarked logo blurred.
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- Hulser (profile), 6 Aug 2009 @ 10:07am
  
  Re: It's not like they can't show stuff...
  Based on my reading of the linked article, the author was saying that entertainment lawyers spend much of their time on these "clearance procedures" not just for situations where product placements were sold, but for most all situations. Sure, if you've sold a product placement, it's in your best interest to not show other competing products, but the impression I got is that the movie makers are so fearful of getting sued, they avoid anything that could offend someone or fall under someone's IP rights, regardless of any product placement issues.
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  - Chronno S. Trigger (profile), 6 Aug 2009 @ 10:20am
    
    Re: Re: It's not like they can't show stuff...
    That's why Mythbusters blurs most of the things on their show. Asides from the things that are dangerous, they blur products so the don't run the risk of liability. They don't have to legally, since it's not really trademark infringement, but they don't want to get into that.
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  - ChurchHatesTucker (profile), 6 Aug 2009 @ 10:20am
    
    Re: Re: It's not like they can't show stuff...
    "...the impression I got is that the movie makers are so fearful of getting sued, they avoid anything that could offend someone or fall under someone's IP rights..."
    
    That is indeed the problem. See, e.g., the CPSD for the problems a modern documentarian has. At some point, 'trademark dillution' became the ability to veto any representation of your trademark, regardless of whether it's even in the area of competitive commerce.
    
    Y'know what? If you put your crap in public view, it should be public domain. Don't like it? Hide it. Your choice.
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    - Hulser (profile), 6 Aug 2009 @ 10:30am
      
      Re: Re: Re: It's not like they can't show stuff...
      Y'know what? If you put your crap in public view, it should be public domain. Don't like it? Hide it. Your choice.
      
      I couldn't agree more. You give up certain rights when you put your IP out in public. Common sense, right?
      
      You'd think that Hollywood as a whole would have enough clout to push back on these silly restrictions. I mean, if they're paying all of these entertainment lawyers anyway to try and prevent lawsuits, why not let them just deal with the lawsuits that come up with the hopes that eventually enough case law would get established that the lawsuits would dry up on their own. Wait, I've just answered my own question. It's a cash cow for the lawyers. Silly me.
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      - Anonymous Coward, 6 Aug 2009 @ 10:30pm
        
        Re: Re: Re: Re: It's not like they can't show stuff...
        I think the point is getting lost here. Film production is a risky business. If the producers can cover some costs by placing products then they'll do it. So they encourage companies to pay by ensuring that they don't accidentally place products in the film.
        
        Product placement is much more entrenched and valuable than anybody not in-the-know would believe. There are whole films and TV series making a profit (regardless of ratings) from the product placement.
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        nasch, 7 Aug 2009 @ 8:53am
        
        Re: Re: Re: Re: Re: It's not like they can't show stuff...
        I think you're still missing the point. If you can demonstrate that a movie with product placement is the ONLY time the lawyers do this, then great. That's their choice. My impression from the excerpt is that they ALWAYS do this (clearance crap), without regard for whether there's any product placement in the movie.
        
        And they do it because they feel copyright law makes it a better investment to spend all this time and money on it up front, rather than risk a lawsuit after the fact. The point is, they should not have to worry about a lawsuit because a character walked past a McDonald's. It's brain-dead.
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- R. Miles (profile), 6 Aug 2009 @ 11:25am
  
  Re: It's not like they can't show stuff...
  They make tons of money showing the products of the contributors of the materials.
  A fallacy which is also dying. Advertisers are getting a bit smarter on how to spend their money, and the "captive audience" thinking is finally dying.
  
  What then? We're back to the "you want to watch it, you gotta pay for it!" mentality.
  
  Intellectual property is an oxymoron and there should be a "safe harbors" regarding real life settings.
  
  If a moron in a hurry can snap a photo, post it online to a website with ads, and call it IP without worrying about issues, so too should everyone else in any industry.
  
  Oh, wait. My bad. I forgot how the moron in a hurry *is* being subjected to this idiotic IP bull.
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  - Anonymous Coward, 6 Aug 2009 @ 11:43am
    
    Re: Re: It's not like they can't show stuff...
    "A fallacy which is also dying. Advertisers are getting a bit smarter on how to spend their money, and the "captive audience" thinking is finally dying."
    
    Which is one of the reasons that much of the "FREE!" mentality may be wrong. Ad based websites are effectively attemptin to aggregate eyeballs, and turn them into a form a a short term captive audience. CNN does this with the ads they run before videos, which is effectively a short term captive audience.
    
    What does it suggest for the future of "FREE!" when consumers seem to turn off to all forms of advertising? As soon as the public catches on to free as advertising, will they still stay tuned in?
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    - PaulT (profile), 6 Aug 2009 @ 12:33pm
      
      Re: Re: Re: It's not like they can't show stuff...
      Why do you think that advertising is the only was a company can make money without charging upfront?
      
      Besides, if the only way ads get noticed is they're made to be so intrusive that your customer base completely turns off, you're doing it wrong.
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John Paradox, 6 Aug 2009 @ 9:51am

Using names
Every single character's name in the script must be checked to ensure there isn't someone out there with that exact name who may think they are being portrayed without their permission.

This actually goes back to an old Marx Brothers movie (I believe A Day At The Races) where Groucho's character was to be named Dr. Quackenbush. When they discovered that there was such a doctor, it was changed to Hackenbush.
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Anonymous Coward, 6 Aug 2009 @ 9:52am

The problem I have with movies now IS the product placement. They're so worried about the paid sponsor's products not being noticed that it's distracting when you see a giant logo on the screen.
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AdamR, 6 Aug 2009 @ 10:08am

Same Here
I love watching old movies and checking how things used to look, especially old New york City. It's a shame that some much time and money is wasted to make a percieved extra money.
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The Cenobyte, 6 Aug 2009 @ 10:15am

They created this monster
They created this monster by being the kinds of guys that will sue cause there brand is used in a way they don't like. However it doesn't have to be this way.

Almost every case where someone was sued because of a product or tm or whatever was shown in a movie, tv or film has failed. Why? Because you are allowed to photograph anything in a public space or a space you have permission to be in. But they are so scared of their own treatment so they spend millions protecting themselves from people just like them.
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BullJustin (profile), 6 Aug 2009 @ 10:17am

Genericity
We need a movie that could get national attention (like Spiderman 4) where the main character lives at:
1234 Milquetoast Ave
Genericity, Anystate 54321

All the logos should be solid white with big black letters that say what it is, like "BEER" or "COLA" or "HAT".

All phone numbers should be the hard to remember 555-555-5555, and we should see different characters dial this number and reach different people.

All cars should be blurred out while also integral to the movie.

Especially since protection for inadvertent inclusion of trademarked logos is impossible.
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- Anonymous Coward, 6 Aug 2009 @ 8:31pm
  
  Re: Genericity
  This movie would be hilarious. I want to see it done this way, also.
  Don't many comics and cartoons do things this way, also? Minus the blurred cars, since drawn cars can be made to look very generic anyway.
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hank mitchell, 6 Aug 2009 @ 10:21am

none of this is technically necessary
none of this is technically necessary - if the camera sweeps by a 7-11 there is no need to get permission, even if your whole movie was centered around a specific product, no one technically has to get permission, and most trademark holders do not pay attention/get upset if their TM s are used, in fact most are ecstatic. we did a 15 short, available on google video that called for an O'henry candy bar in the script. we called the manufacturer and within 8 hours they delivered 10 cases to our set for free, no questions asked. the movie is not exactly kid or family friendly and kind of mocks the ohenry trademark, but they did not care. if you search google video for document 4486576289803921365 and scroll to 5 minutes in, you will see the scene
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Cracksquirrel, 6 Aug 2009 @ 10:25am

Learn something new
I always thought you didnt want a McDonalds logo to appear just because it would conflict with your sponsors. Never really will understand companies refusing free advertising. If I had a business who logo appeared in a block buster film seen by millions just because it was background, I would be happy as hell.
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Rekrul, 6 Aug 2009 @ 10:29am

Companies pay big money to have their products shown in movies, but if a movie includes their product without permission, they sue. How the hell does that make any sense? Are companies so fond of paying for product placement that they resent movies doing it for free?
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NullOp, 6 Aug 2009 @ 10:37am

Censorship
Basically companies are very "slow" individuals. Not quite mentally retarded but not in the normal range either. And, of course, this varies from company-to-company. So, a lot of companies don't want to see their logos 'used' in a way they can't control. Some burger companies might not want a shot of a patient in bed recovering from heart surgery with some tell-tale scene in the background. The company only wants you to see the logo in their interpretation. Real world be damned. Personally, I am quite happy to NOT see any logos in a movie. I am sick of seeing advertising every where I look. In a way I am surprised someone hasn't taken a whack a Google Earth as I am almost certain you might see a logo somehow...
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- ChurchHatesTucker (profile), 6 Aug 2009 @ 10:52am
  
  Re: Censorship
  "Personally, I am quite happy to NOT see any logos in a movie. I am sick of seeing advertising every where I look. In a way I am surprised someone hasn't taken a whack a Google Earth as I am almost certain you might see a logo somehow..."
  
  Wait for it...
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Jennay, 6 Aug 2009 @ 10:54am

STUPIDITY
Then big brother wonders why people download movies because they are too expensive to buy because of this crap. This is seriously a bunch of CRAP! We need to overhaul all this infringement crap.
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Steven, 6 Aug 2009 @ 11:19am

God
This reminds me of when people called the number from Bruce Almighty and tried to get a hold of God.
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Stephen, 6 Aug 2009 @ 11:30am

movie clearances
I'll echo the O'Henry story: I edited Eric Burns's book ALL THE NEWS UNFIT TO PRINT. I got a call a few weeks ago from the production company making a movie in which Drew Barrymore is studying/teaching journalism at Stanford. They wanted to know if they could show Eric's book on screen in a classroom scene. Of freakin' course. I said I'd send them a box of books if they needed it.

I don't know if it'll make the movie, but if it does, I'm going to ask our Higher Ed divison to see if they can get the book adopted at the school.
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Anonymous Coward, 6 Aug 2009 @ 11:47am

You got it party wrong... making sure that if McDonald's appear anywhere in the background in a movie then McDonald better have paid for that advertising.

Paid product placement is the oldest and newest form of advertising. You can not fast forward through a scene that has the actor's eating a McDonald....

Why do you think the Transformers movie selected the cars they did.... they got paid to select them!
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YouAreWrong, 6 Aug 2009 @ 11:51am

"promoting the progress" (once again, mike is wrong)
errors and omissions is a concept that came from trademark law, embodied mostly in the lanham act. NO ONE has ever asserted that trademark law (or the lanham act) has anything to do with article 1 section 8. trademark law = the commerce clause. period. you're flat out wrong, once again.
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- CastorTroy-Libertarian, 6 Aug 2009 @ 1:37pm
  
  Re: "promoting the progress" (once again, mike is wrong)
  I guess Weird Harold came back as a troll, oh wait he started as a troll too.. oh well..
  
  Someone always wants to believe they know it all in all things...
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  - Anonymous Coward, 6 Aug 2009 @ 7:25pm
    
    Re: Re: "promoting the progress" (once again, mike is wrong)
    Actually, he is right... Mike's rhetoric is wrong.
    
    Article 1 Section 8 Clause 8 is the clause Mike cites about "promoting the progress." It is what the government uses for patents and arguably copyrights. It has nothing to do with trademarks. You absolutely cannot trademark function, or even a look that is functional (there are multiple cases on this).
    
    Article 1 Section 8 Clause 3 is the commerce clause, and allows congress to regulate any interstate or international commerce. It is the basis for trademark law, and in following, errors and omissions.
    
    http://www.law.cornell.edu/constitution/constitution.articlei.html
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btr1701 (profile), 6 Aug 2009 @ 1:20pm

It Gets Even Sillier
Not only can you get in trouble for having an unauthorized logo in your film, the reverse is true as well.

A few years ago, a major production (I want to say it was "I Am Legend"-- one of the flashback scenes before the plague-- but I could be wrong) got in all sorts of hot water because they shot a scene in Times Square and digitally replaced the ads on all the billboards and flashing signs with ads for other companies that paid to be in the film. The people whose ads got deleted threw a fit.
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btr1701 (profile), 6 Aug 2009 @ 1:29pm

Don't Believe It
> Every single character's name in the script
> must be checked to ensure there isn't someone
> out there with that exact name who may think
> they are being portrayed without their permission.

How can this possibly be? I mean, there has to be a limit to this otherwise no characters would ever have names.

Take "Terminator" for example. There must be literally thousands of Sarah Connors and John Connors in the USA, let alone the rest of the world. Or Robert Neville from "I Am Legend" or Ellen Ripley from "Aliens". I actually know a guy named Jack Bauer and he's even a federal agent.

How can they possibly find names for characters if they have to avoid anyone, anywhere, who might have that same name and consider suing them?
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Overcast (profile), 6 Aug 2009 @ 1:34pm

HAHAHAHA, probably the best possible form of advertising possible and they want to make sure their stuff's not in there.

Knock yourself out!
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Michial Thompson, 6 Aug 2009 @ 2:02pm

This job has nothing to do with copyright
This job is to make sure that the movie is getting paid for any brands that do appear in the movie.

When they film they film with the brands in place, and then try extorting "advertising" fees from the brand owner. If they don't get the money they then either use CGI to remove the brand or they refilm the scene.
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Bradley Stewart, 6 Aug 2009 @ 3:03pm

Advertising Revenues Way Down. Why Not Stop Free
advertising for ones products? Talk about putting your shoes on the wrong feet. Its just another case of lets do it because we can. Even if it doesn't make any sense we can do it so we will. Jeez Louise when I worked I had it all wrong. If I had come up with enough idiotic ideas like this one I could have made a really great living.
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Darren Martz, 6 Aug 2009 @ 3:11pm

Video Games Included
The video game industry does the same thing. In some cases, having a name/brand in the product yields revenue, in other cases having a name/brand in the product creates and expense.

Some larger companies have been so disorganized that one department demands payment for the brand use while another department is cutting a check.

Every name, every picture on the wall, every piece of clothing runs past legal. It gets tricky with international products where translations may be politically bias (ex: flags in a stadium) and the translators are sympathetic.
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Anonymous Coward, 6 Aug 2009 @ 4:15pm

There's a McDonalds in the background of several films
For example, a McDonald's appears way in the background (it's off to the side, way off in the distance and you have to look for it on the screen) for a couple frames in establishing shot of the Nakatomi building (Fox Plaza in real life) in the 1988 action movie "Die Hard." Trust me, if that movie was made today, McDonald's would be suing 20th Century Fox for big bucks.
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