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Comment by CM30 | Hacker News Reader

Have to be honest, I've always thought complaints about trademarked products in works of fiction were a silly thing to begin with. Why shouldn't a fictional universe feature products and businesses found in the real world? Are we supposedly to randomly assume all other universes don't have humvees or macbooks or the Red Cross? Who's to say the same people/companies/organisations would even be responsible in that work of fiction?

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.

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What if I took your product and had it fail spectacularly in my movie?

Is it being marketed as a documentary?

Let’s say it isn’t.

Then why should it be illegal? Sure, as the maker of said product, I won't be happy seeing it portrayed in a negative light. But bad reviews, negative jokes, and outright mockery are a natural risk that comes from the totally optional endeavor of creating products. Should my feelings trump your rights to creativity and speech?

Why should your product be protected from that?

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...

> Consumers are smart enough to know that fictional media is fictional.

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.

The number of car chases I've seen in movies where motorcycles, taxis, and trucks keep pace with fast-moving vehicles makes me skeptical that is a real concern.

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.

>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.

It's strong evidence that our law doesn't consider fictional portrayals of real products to be a problem. More importantly, it's strong evidence that we shouldn't be uniquely concerned over negative portrayals of trademarks.

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.

>it's strong evidence that we shouldn't be uniquely concerned over negative portrayals of trademarks.

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.

Yep. That's why Apple prohibits depictions of their products in media where those are used by villains.

> Consumers are smart enough

Counterpoint: the cratering sales of Corona beer in the past month

Has that really been happening? I don't buy much alcohol but the last two sixpacks I've bought have been corona. It seemed somehow appropriate.

Looks like I believed some bullshit: https://www.snopes.com/fact-check/corona-beer-fear-coronavir... (false)

The search results I see indicate that Corona sales are up (along with all other beers).

A belgian shop did a promo recently: Buy 2 Corona, get 1 Morte Subite for free

https://www.brusselstimes.com/all-news/business/98659/delhai...

Being smart enough to know something is fake is not enough to be psychologically unaffected by it.

https://en.wikipedia.org/wiki/Product_placement#Research

But to follow up, why should we protect brands from negative psychological associations in movies?

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.

>We still allow people to publicly criticize products.

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.

Hmm, I swear quite a few ads often attack rival brands by name, and make them out as significantly worse on questionable grounds. Like many console war era ads in the gaming industry, which were very happy to tear rivals to shreds over things that didn't match reality.

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.

The plaintiff would have to show that they lost revenue as a result of the false statements, which I would think would be particularly difficult to do in that case, because portrayals made openly by a competitor are not as likely to harm the reputation of the company as are portrayals made by someone who does not obviously have anything to gain from the negative portrayal. But that's just a guess.

> We still allow real products to be used in satires, even though satires

The brand owners still get licensing fees whenever real brands are shown, in movies

I am not a lawyer, and I'd welcome input from a real lawyer. But I am almost certain that satirical references to real brands are protected by fair use. I similarly suspect that licensing is not a legal requirement for 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.

[0]: https://en.wikipedia.org/wiki/Rogers_v._Grimaldi

https://www.inta.org/TMR/Pages/vol99_no6_a2.aspx Pay attention to huge vulnerabilities like (6) the defendant’s intent in adopting the mark, wherein the defendant will have to show how a property was not used for a purpose, that the plaintiff will take issue with. Does anyone remember the Ford suit to stop news outlets from showing jihadists driving around in Ford pickups?

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.

Who cares? It's my first amendment right to psychologically impact you by writing: "coca cola tastes like spiced oven sludge".

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.

I don't think consumers are smart enough. Look at what's happening to Corona beer right now.

https://www.snopes.com/fact-check/corona-beer-fear-coronavir...

> Consumers are smart enough to know that fictional media is fictional

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.

What if I wrote a bad review of your product and claimed it fails spectacularly? E.g. what Top Gear did with the Tesla Roadster.

What if? Nothing. It's a dumb product, there joke is over and you move on in a few seconds.

There's no real need for this wired free speech limitation to protect something as dead as a brand.

Exactly. I don't see why games should be treated any different than bad reviews.

Advertising would very quickly shift from promoting your product, to actively trashing the competitor's.

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.

You seem to be under the false impression that companies aren't already allowed to trash their competitors in advertisements.

What if I have characters in my movie watching your movie and commenting on how stupid of a movie it is?

You mean like A320 in Sully?

This reminds me of Apple's policy recently made public by director Rian Johnson, that can spoil multiple movies.

* SPOILER AHEAD *

While Apple will let you use an iPhone on film, they won't approve it being used by a villain.

That’s just if you want them to pay for the product placement, though.

If you want to use it at all in a movie or tv.

Apple can't stop you from using their products in a movie. Trademarks only protect brand confusion, nobody is going to watch Transformers 17: Age of Voltron and think that the whole movie is an apple product because a robot turns into a iPad.

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"

Apple does not do product placement at all, so licensing fees make no sense for Apple. I stand corrected.

They absolutely do, just not in the standard way.

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.

If it failed in a way it can fail in the real world, ideally with examples, then there should be no problem. If the movie doesn't extrapolate and effectively libel the brand with untruths (e.g. they all do this, this is normal, etc), there should be zero problem with it.

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.

Same thing with government trademarks being used in things like video games - there’s a reason why Call of Duty doesn’t use the real crests of the USMC, USN, SAS, etc. and why they went in and reskinned all of the NYPD and FDNY vehicles in the Division. Should never be a problem, and yet studios kowtow to public agencies in this regard all the time.

Meanwhile, in this other fictional universe, a guy who looks just like you and posts the same things as you on HN is a child pornographer. Not to worry, our hero stops him.

Or perhaps it is your company that is involved in the pornography. And they are secret Nazis. Not to worry. All fictional.

Well that's what Freedom of Speech is all about, isn't it?

No, slander and libel are well-established legal principles despite freedom of speech.

And fiction is never libel. Libel requires a falsehood about someone to be presented as truth, causing demonstrable damage, with actual malice.

This simply isn't true. See for instance Batra v Wolf et al, among many other examples:

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.

Well yes that is what ficitonal means.

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