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Comment by danShumway | Hacker News Reader

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...

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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.

> 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 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.

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

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...

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