This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by E&O insurance, and which aims to demonstrate that what might seem to a producer to be paranoia on the part of their lawyer is, in fact, well-founded. These posts will point to actual lawsuits which have been filed against film/TV producers for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.
This installment in the series isn’t from the world of film and TV, but rather videogames: Eriq Gardner at Hollywood, Esq. reports that game publisher Electronic Arts is in court following threats from a manufacturer of helicopters asserting that including depictions of real-life ‘copters in videogames constitutes trade-mark infringement (Helicopters In Video Games Under Fire As Electronic Arts Heads to Court).
This sort of dispute raises pertinent issues which often arise when conducting an E&O review of a project – namely, what sorts of rights might the owner of an “object” claim against a producer who uses that object in their movie? For example: is there a need to get clearance (i.e., obtain permission from the owner) for the use of a car in a motion picture? (On a related point, and for a good summary of the issues see Dear Rich’s recent post Can We Use Cars in CD Cover Art or Movie?). For the lawyer reviewing the matter on behalf of the producer, this often reduces to a “look and feel” analysis: Is the object (e.g., the car) being used in a prominent manner? Is there a danger that someone could construe the use of the object as constituting an endorsement of some sort? Is there a trade-marked logo which is visible? Is the object being disparaged in some fashion? Is there some kind of artistic design element on the object which might have separate copyright protection (to use an example which might be a bit out date: is the object a van with an airbrushed painting on the side)?
Digging a bit deeper into the analysis, however, there are both practical restrictions (if every object appearing on-screen needed clearance, movies would quickly become impossible to make – if every appliance in a kitchen required clearance, there wouldn’t be many scenes taking place in kitchens) and legal ones – it becomes difficult to articulate what “rights” a manufacturer might have in an “object”. Section 64 of the Copyright Act (Canada) removes copyright protection for designs or artistic works which are applied to “useful articles” and then reproduced more than fifty times. That would have the effect of preventing a car manufacturer from claiming copyright in their vehicle designs (assuming we’re talking about mass-produced vehicles, and not simply one-off “concept cars”). But they might have some kind of relevant protection under the Industrial Design Act (Canada) which may warrant consideration. Simply depicting a trade-marked logo is likely not to constitute “use” within the meaning of the Trade-marks Act (Canada), and so the only potentially plausible trade-mark claim would have to rest on some kind of disparagement or dilution basis. The more difficult question to answer relates to copyright which might subsist in a visible logo – though, again, practically speaking in most circumstances such logos will be difficult to discern on-screen. All that being said, many E&O insurance policies will simply require that prominently-depicted objects (such as vehicles) and depicted logos be blurred or that clearance be obtained – irrespective of the precise legal grounding of a potential claim.