The New York Times reports today that TNT will launch a new show "Trust Me" Monday about a fictional ad agency that goes head to head with real agencies like Leo Burnet and DDB. Written in cooperation with brand managers for UniLever, Amheiser Busch InBev and GM, products like Dove and in some cases their real-life brand managers are written into the program. TNT is simultaneously launching an online game for viewers to create their own ad campaigns.
Sounds entertaining? Tell it to the FCC which sought comments in 2008 on whether broadcasters should be required include an on-screen "crawl" whenever product placements occur in a TV program. The AAF, 4As, ANA and media companies rebuttal comments are here.
The FCC has a low opinion of the average TV viewer's IQ. Facing thousands of brand impressions every morning on their way to work and school, consumers are far more savvy than the FCC believes. In my house there is a competitive effort to rout out all ad references.
From my perspective as a content clearance attorney, the trend toward branded entertainment means advertisers and agencies should take care to avoid a claim of false endorsement or affiliation arising from a inadvertent (or intentional but unauthorized) background logo or brand reference.
Thursday, January 22, 2009
Tuesday, January 20, 2009
Ravens Win in the Courtroom
A U.S. District Court Judge in Baltimore found that incidental reproductions of the infringing "Flying B" shield design in historic images and film footage from the NFL Baltimore Ravens' inaugural season is fair use. Amateur artist Fred Bouchat designed the Flying B design as a suggested Baltimore Ravens team logo. The NFL used his logo design without permission during the team's inaugural season (1996-1998). In 2001, Bouchat established in a Federal appellate court that the NFL logo infringed his design, but Bouchat had not registered the Flying B design prior to infringement. Consequently, he was required but unable to prove NFL profits resulted from the infringing logo. Subsequent lawsuits by Bouchat against NFL licensees were also unsuccessful.
In the recent case, Bouchat sought to halt NFL's public display and sale of materials in which the infringing Flying B logo is visible. The court found (i) that the NFL's display and sale of photos and videos in which the infringing logo is visible on uniforms and displays is an incidental and primarily historic use — balancing an insignificant commercial purpose; and (ii) that although the Flying B design is highly protectable (iii) and the entire design was used, the use comprises an inconsequential portion of the overall NFL use, and since (iv) Bouchat's design has no foreseeable market, the NFL's use has no effect upon any potential market for his design. Weighing the results of the four factors together, the court found that the NFL's use was fair use. The Court's illustrated opionion can be viewed here: http://www.mdd.uscourts.gov/Opinions/Opinions/bouchat1121.pdf.
Bottom Line: Incidental unauthorized use of creative works in historic materials where the use is minimally commercial and does not supplant the copyright owner's intended purpose is likely defensible as fair use.
In the recent case, Bouchat sought to halt NFL's public display and sale of materials in which the infringing Flying B logo is visible. The court found (i) that the NFL's display and sale of photos and videos in which the infringing logo is visible on uniforms and displays is an incidental and primarily historic use — balancing an insignificant commercial purpose; and (ii) that although the Flying B design is highly protectable (iii) and the entire design was used, the use comprises an inconsequential portion of the overall NFL use, and since (iv) Bouchat's design has no foreseeable market, the NFL's use has no effect upon any potential market for his design. Weighing the results of the four factors together, the court found that the NFL's use was fair use. The Court's illustrated opionion can be viewed here: http://www.mdd.uscourts.gov/Opinions/Opinions/bouchat1121.pdf.
Bottom Line: Incidental unauthorized use of creative works in historic materials where the use is minimally commercial and does not supplant the copyright owner's intended purpose is likely defensible as fair use.
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