If you’re a filmmaker wondering if you will be sued, ask yourself: “Have I created a very popular film?”
That message came off loud and clear during the “Intellectual Property in Film and Interactive Media” CLE at SXSW. During the panel, Akin Gump attorneys Kellie Marie Johnson and Charles Everingham discussed trademark and copyright issues, including the increasingly sophisticated use of marketing and product placement in media. Some brands, including Chipotle and Lexus, are even creating their own content to distribute, they noted.
But with every integrated ad comes a host of legal issues. Brands want exposure, producers want to protect content quality, and talent wants to protect its image. To that end, Johnson and Everingham broke down some of the things parties should keep in mind when making marketing deals:
-Be aware of a brand’s permissions and rights
-Ask for a script to see if the details make sense for your brand
-Be as involved in the process as possible
-Negotiate for minimum guaranteed integration
-Negotiate for category exclusivity
-Establish provisions for talent back out
Still, even perfectly crafted contracts can have holes or lead to unforeseen issues. Consider the following cases highlighted during the CLE session:
Luxury brand Louis Vuitton was not laughing during The Hangover: Part II. In an airport scene, the character Alan (played by Zach Galifianakis) warns fellow traveler Teddy to watch out for his luggage, letting out a cold, “Careful, that is a … that is a Lew-is Vuitton.” Following the film’s debut, Vuitton sent a cease-and-desist letter to producers Warner Brothers, claiming that the appearance of the shoulder bag (which was a knock-off) and his dialogue infringed on its trademark and caused dilution. When Warner Bros. declined to remove the scene, Vuitton filed suit, claiming false designation of origin and unfair competition in violation of the federal Lanham Act, among other things. Ultimately, a New York judge granted a motion to dismiss the trademark complaint.
Then there was the time a New Jersey woman sued Disney, alleging that the film Frozen includes elements from her autobiography. The case was dismissed.
And Natrol Inc. was not too pleased with product placement firm Brand-in Entertainment last year when Reese Witherspoon backed out of a film. The vitamin company had placed $180,000 in the movie with the expectation that Witherspoon’s character would discuss their product. Natrol claims they are still owed a refund as part of their contract. The case is still ongoing.
At the end of the panel, the bottom line was that brands and the entertainment industry can work well together, so long as all parties understand their legal rights.