'Call of Duty' wins First Amendment victory over use of Humvees
hollywoodreporter.com
hollywoodreporter.com
The law should basically just say there's no trademark violation in featuring a real world product/service in a fictional work so long as it couldn't reasonably be confused as a piece of marketing by the creator of said product or person. Obviously the work shouldn't be about say, Mickey Mouse, but it should be perfectly fine to feature say, Disney and their products as background elements in a fictional work without the approval of Disney.
Just seems ridiculous to have it work any other way.
Consumers are smart enough to know that fictional media is fictional. If we're not protecting products from negative reviews, opinion peices, or satire -- then fictional stories seems to me like a really weird place to draw a line.
What if I took your product and made a joke about it having ties to a cult?[0] I don't see any reason to treat fictional movies and games like they're a special medium.
I also assume we're not proposing that people should be banned from making fictional stories that feature real events and people. So jumping off of that point, what makes a movie that incorporates a public, trademarked brand different than a movie that incorporates a living public figure?
[0]: https://entertainment.theonion.com/new-sesame-street-charact...
The fact that you can pay me to include your product in my media doesn't imply that it's illegal for me to mention your product otherwise.
We still allow real products to be used in satires, even though satires could have the same unconscious effects you reference. We still allow people to publicly criticize products. We still allow real public figures and events to be referenced in fictional media, even though the same psychological effects you reference could negatively impact people's perception of them as well.
I still don't see anything that's special about a trademark that means it needs extra protection in this area.
The brand owners still get licensing fees whenever real brands are shown, in movies
I would be curious how you square your claim with Rogers v Grimaldi[0], or more directly, how you square it with the outcome of the very case we're commenting on.
Rogers v Grimaldi is a narrow ruling in a district court about a celebrity name. It does not apply broadly to all branding and it's generally not worth a court battle to find out, since the filing is going to benefit the plaintiff.
That being said, there are consequences outside of pure legal issues to deal with in media production, which makes things like Apple's "allowance with their own restrictions" work. It's not a legal issue, but they can attack your post production just as well as making it a legal issue about filming.
Yes, but you're not allowed to harm people or businesses by knowingly making false statements about the product in your criticism. I would guess that a negative fictional portrayal of the product would run afoul of that. Satire often uses branding that is fake but similar enough to the real thing that it's obvious what it's meant to portray.
So it seems there are definitely ads that attack competitors or make false statements about their products, and they don't all get banned/spark lawsuits over it.
Well, it depends. Generally there is some sort of minimal realism when it comes to objects; you'll never have a sports car lose to a clunker, and when it does, the movie plays it as surprising. If people treat your product in a certain way, even in fiction, consumers might think that they're just missing out on the association they're supposed to know.
But let's say that we are concerned about consumers forming an incorrect association. If that was the case, we also would block brands from showing their products succeeding spectacularly in unlikely or impossible situations. If we don't trust consumers to treat fictional stories with caution, then we should also ban depictions of cell phones that have infinite reception in the middle of disasters, cars that allow drivers to walk away unharmed after crashes, or branded laptops that perform computing tasks that are beyond them.
Just a few weeks to a month ago, studios were joking about how Apple had a policy of making sure that movie villains never used iPhones. That's a clearly deceptive association Apple is trying to create, lots of evil people in the real world use iPhones.
The fact that we don't ban deceptively positive depictions of branded products is strong evidence that we do trust consumers to know the difference between fiction and reality.
I would definitely not classify that as strong evidence. I'm not sure I'd classify it as evidence at all. There are many people that benefit considerably from consumers not being immune to psychological tricks in advertising, and they have a lot of money and a lot of incentive to make sure they're allowed to keep using those tricks on people.
The small subset of the population that is even aware of the magnitude of the manipulation that the people are subject to has comparatively little incentive to stop it from happening.
If it's not a serious problem that brands are able to pay to portray their products in a positive light, then it also shouldn't be a serious problem that people can portray a brand in a negative light.
That's all that I was trying to get at -- that there's no reason for people to be uniquely concerned about negative product references in media if they're not also concerned about positive references.
Again I'm not sure how it's evidence of that, but I agree that we should not be uniquely concerned about negative portrayals.
I see what you are saying now though, and I agree with you on that point.
Of course the people who make a lot of money off of positive advertising generally are the ones who stand to lose a lot of money from negative portrayals, and they also happen to have a lot of money, so it's not surprise that the law does not treat them equally.
Absolutely 100% no.
I was sitting in an embassy in Bamako,Mali watching some crappy TV show where Americans were getting shot at, chased and beaten to death by horrible people. At some point they said "We gotta get to Bamako".
It hit me that millions of people watching the show would think that's what Mali is like.
I was sitting in Bamako, and had been there for two months, and still had a great impact on me when I walked outside.
Consumers have virtually no way of knowing what's real and what's fiction these days.
Counterpoint: the cratering sales of Corona beer in the past month
https://www.brusselstimes.com/all-news/business/98659/delhai...
* SPOILER AHEAD *
While Apple will let you use an iPhone on film, they won't approve it being used by a villain.
It's just a case of "if you don't use our product this way, we won't do cross promotions or pay for product placement with you anymore"
https://www.businessinsider.com/apple-product-placements-in-...
They give away devices, to studio, cast, and crew. Apple puts your movie prominently in ads or on the iTunes Store. etc.
There's no real need for this wired free speech limitation to protect something as dead as a brand.
The whole "Our soda taste so much better than the unnamed competitor's!" style advertising would quickly change to something like "X Corp Brand Soda is the biggest supporter of elephant extermination worldwide and uses lead to give their product their sugar-free sweetness. Is their soda really worth it? (haha, just kidding. Or are we?)"
Smaller companies would be absolutely crushed by larger corporations dragging them through the mud with political style ads all day.
Brands, music, trends, etc, are always a street with two-sides, yet we act like there is only one side worth consideration. e.g. These things are the part of our lives as well, and we made them what they are, so there is shared consideration, which is exactly what this judgment is saying.
Or perhaps it is your company that is involved in the pornography. And they are secret Nazis. Not to worry. All fictional.
https://www.loeb.com/en/insights/publications/2008/04/batra-...
> Plaintiff Ravi Batra, a bald, Indian-American lawyer involved in a judicial corruption scandal, filed a libel-in-fiction claim against the writers, producers and broadcasters of the television show Law & Order, claiming that an episode about a judicial bribery scandal that included a character who was a bald, Indian-American lawyer named Ravi Patel was defamatory. The court reached this holding after noting that no libel-in-fiction law suit in New York state court had survived a motion to dismiss in almost 25 years, and then denied defendants’ motion to dismiss.
Actual malice is additionally only necessary if the victim is a public figure.
Then I remember the case where a real life club got mad at grand theft auto. But in the end it was decided people wouldn't confuse a night club in real life with one in a virtual world. Probably would be the same for that mail or car example too. And they didn't even use the logo, the shape or colors of things can count as a trademark.
The purpose of trademark is to prevent the counterfeit item be recognized as the same as trademarked item.
If the item is truly meant to refer the trademarked item, in this case realtime 3DCG rendering, there is no violation of the trademark. Isn't it? It's the same reason I can write any trademarked term here and not violate the trademark law.
US law system is beyond my understanding.
I'm beginning to think that a lot of these types of lawsuits stems from the lawyers themselves recommending them and somehow convincing the management to go along with it. After all, they're really the only party that wins regardless of the outcome of the case.
This generally only applies when non-holders use the trademark to market in the same field as the original business, though: not "we went to McDonald's", but rather "welcome to McDonald's (no relation to the corporate giant), would you like fries with that?". It doesn't apply in this case because the Call of Duty series has nothing to do with selling vehicles.
https://en.wikipedia.org/wiki/Trampoline#First_modern_trampo...
I think this is really just a case of lawyers being super-protective. It also pays well, I'm sure.
I think a words like Humvee or even Google have coloquially already lost their meaning--their meaning is polymorphic, it's only a matter of time (100 years is a matter of time) before a better Humvee or Google not released by the original product designer comes along that people will call Humvee or Google anyways.
Most eroded trade marks were previously owned and registered. It's not the registration that gives trademark protection. Trademark protection exists to protect the market place. It prevents companies from piggybacking on someone else's success.
But if the consumer doesn't think that "Jeep" is a mark, but a form factor, then no one is protected from any misunderstanding and it would be no longer a trade mark. Happened to Motorola in 2005 with "flip phone".
I can't help but think society would be better served by using the court system for just about anything else including seeking damages from the gentleman who sold them the brooklyn bridge.
Both great examples of trademark erosion, tbh.
Think of 25,000 to 35,000 for a "Jeep Renegade" (which is rather common in Italy), vs. 50,000 to 70,000 for (say) a BMW X3.
https://www.quattroruote.it/listino/jeep/renegade
https://www.quattroruote.it/listino/bmw/x3
Speaking of the Renegade, they are manufactured in Italy, and have the same platform as the Fiat 500X, and they are largely 2 wheel drive.
Another one is "Yonica" for any synthesizer. Obviously "Scotch" (more for the tape, than drink).
But... What I really love is "Pampers" - yes this is the bulgarian word for... "diapers"... and many more...
http://gramota.ru/slovari/dic/?word=%D0%94%D0%B6%D0%B8%D0%BF...
I also enjoy facetiming via Slack.
And of course googling for music is best done on Spotify.
And more recently there's the PC, which became detached from IBM in record time.
There's no real reason to think "fridge" is shortened from "Frigidaire" as opposed to "refrigerator".
"Frigidaire" should only really differ from "frigid air" in terms of prosody.
Personally, my friends and I have been skype-ing through Discord a lot recently.
https://en.wikipedia.org/wiki/List_of_generic_and_genericize...
Most trademarks these days don't need to worry about being the literal spoils of war.
Edit: Actually, I think Bayer lost it even earlier, during the war, through the Trading with the Enemy Act.
I understand that the trademark itself is only protected within the same field, but it seems pretty common to defend trademarks across other fields.
A trademark can only be defended in the face of an incursion into a protected use. If it's an "other field", then it can't be defended and the suit fails.
That said, this AM General case seems to be a licensing case -- they want money for the use of the of their design. To some degree, I don't blame them since Activision is profiting from their work.
Should Graumann's Chinese Theater be entitled to money for the use of the appearance of their famous building?
To what extent should Google pay AM General, Ford, GM, Honda, Toyota, and so forth for the use of their vehicles' appearances in Streetview?
Finally: someone makes a Mail Simulator game, in which you take the role of being a first-class letter trying to get to a particular house on the other side of the continent. The role of postal vehicle is played by a https://en.wikipedia.org/wiki/Grumman_LLV
How much do they owe to Grumman, or to the USPS, or GM?
https://www.independent.co.uk/news/world/americas/trademark-...
None. Google captured photos in public, they didn't put those vehicles there, they don't want them there and they don't add any value to streetview.
It's hard to compare that to Call of Duty where activision is intentionally modeling, texture mapping, animating and rendering someone else's design for the express purpose of adding value to their product.
EDIT: just checked the wikipedia page for SUV in russian, and yep, in the second paragraph it says that SUVs are usually referred to as "Jeeps" in post-Soviet countries.
The common and slightly derogatory term for an X5/Q7/XC90 type SUV in Swedish is “Stadsjeep” (“city jeep”).
So yes Jeep is definitely not just a brand it’s like xerox and Walkman and used sloppily to refer to anything jeepy-looking.
The Russian term for that is "parquet jeep"
"Hyundai Stadsjeepar | Innovation och 5 års garanti | hyundai.se"
So "Hyunday city jeeps, innovation and 5 year warranty | hyundai.se"
I doubt you'd find that for Chelsea Tractor!
The legend has it that when economic restrictions were relaxed towards the end of the SU someone bartered a huge quantity of a natural resource (coal?) for a huge number Jeep Grand Cherokee vehicles. So around that time they were only types of cars in SU - subpar Soviet cars and fancy American Jeeps.
Also, I have now read and typed the word Jeep so many times it seems like a really strange word...
not limited to russians. i hangul, pantyhose is 'pantysuitking'
Case in point: https://www.urbandictionary.com/define.php?term=Jeepeta
however anything that's a usb stick, be it a modem or wifi card, is still 'flashka.' sticking a cell modem in a usb port makes it flash memory. i hear with usb-c new lingo will take over. anything usb-c will be called djest' (stiffness)
Why drag them to court?
As for proximity of the products, while AM General may license out the rights to depict Humvees in games and toys, the judge isn't impressed because that's not its central purpose as a business.
I also may not know what I'm talking about, but that statement by the judge suggests that in this case, AM General was not so much interested in protecting it's trademark, but rather more interested in enforce some sort of licensing payment.
I agree with Smabie though, I think it would bring more to the brand. Also tinkertamper your thoughts appear pretty sound too. Carry on
I'd guess that the cost of making a fool of one's self for trademark enforcement is usually pretty low... especially if your target customer doesn't make purchasing decisions based on it.
Maybe they're seeing how pro athletes are licensing their likeness to games and thought they could make a compelling argument for why they should too. Whatever the reason, I also agree with outcome of the suit.
It does seem to me like it shouldn’t be in the public interest to allow brands to fully control representations of their products in media since that clearly provides a mechanism to stifle critical representations (or even simply accurate ones that don’t match the desired corporate image).
The specific example I was thinking of was racing games that use real cars (Forza, Gran Turismo, etc.). Do those companies get paid to feature real cars or do they have to pay to use them?
I'm not sure, but I imagine so.
What gets complicated is how the cars are depicted in the games. I've heard stories of racing simulators which couldn't use realistic damage models because the licensors for their cars wouldn't approve of having their cars depicted in a damaged state. I can imagine there might be issues with having some models of cars modelled as having worse performance than their competitors (slower, worse handling, etc) as well.
It's not as though this is unique to video games, though. A company that's paying to have their car appear in a movie might stipulate that it not appear in situations involving it breaking down or crashing, for instance.
Personally, I think this should fall into the same sort of fair use as if a HUMVEE was used in a movie without AM General's approval.
Also, I think both sides are being a little childish amd ahould have come to terma outside of court.
Corporate legal departments (at least the big companies) hire out trial work typically and at a very high hourly price.
Pretty much exactly what happened with the Glock in the Counter Strike PC game.
We're all subject to a wide variety of unconscious biases.
I'd bet there's influence coming from both ends - those who used them in video games and decided their first gun just couldn't possibly be a Glock, and those who see Special Operations guys using them and decided their first gun just had to be a Glock.
Any they have a fairly comprehensive list of manufacturers and no cars are immune to damage in the game.
I think this ruling is great, maybe we can finally get racing games with real cars and realistic damage modeling.
I would go as far as to argue that advertisements in general aren't considered protected speech on either end. Otherwise cigarette companies could still market to children.
The CoD brand makes enough money to blink at. I'm 100% sure that one strategy was to win the suit and demand license fees for use of the name.
Edit, Google says some people did it till 2013...
So they demand license fees for things like scale model F-15 kits.
They want to keep that revenue and expand it, so they try to make video game companies get licenses. To expand revenue and defend trademarks.
So how does that happen ?