Budweiser Asks Paramount To Remove Their Beer From The Movie Flight

from the maybe-their-lawyers-were-drunk? dept

As product placement in television and film becomes more prevalent, it was only a matter of time before intellectual property silliness had to follow. For example, we’ve seen such wonderful cases of egocentrism as a copyright claim over a painting shown in a movie. Couple that with product placement examples that are awkward for all involved and you’ve got a recipe for litigious fun not seen since a murder trial involving a former Buffalo Bills running back.

Reader Chris writes in about a story that appears to be a nice crossroads of these two aspects of product placement, in which several alcohol companies are apparently upset that their products are being shown in the movie Flight doing what those products do: get people drunk.

Anheuser-Busch said Monday that it has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington’s character drinking the beer while behind the wheel.

Budweiser is hardly the only alcoholic beverage shown in “Flight,” which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington’s character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn’t license its brand for inclusion in the film and wouldn’t have given permission if asked.

Now, you may be asking yourself, “Why didn’t the film get permission to use the products in their film?” The answer is about as complicated as a straight line; they don’t have to. Studios are not required to ask for permission to include every little brand in their movies — even if some companies now think that’s the case. True, Denzel Washington’s character in the film is a drunk and Budweiser may not be pleased to be associated with that aspect of the story, but the law isn’t concerned about Budweiser’s pleasure. Trademark law isn’t about making sure you’re always happy about how your product is displayed.

Even going beyond trademark law, it’s not like they were “misrepresenting” anything. I, for one, can assure you that the depiction of beer being able to get a person hammered is spot on accurate, and if you won’t take my word for it, I’ll give you the phone numbers of some of my neighbors who can relate their experiences living near me on NFL Sundays. The point is that there’s a reason these companies didn’t give their permission: nobody asked them for it.

Trademark laws “don’t exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items,” said Daniel Nazer, a resident fellow at Stanford Law School’s Fair Use Project. “It is the case that often filmmakers get paid by companies to include their products. I think that’s sort of led to a culture where they expect they’ll have control. That’s not a right the trademark law gives them.”

Jay Dougherty, a professor at Loyola Law School, said the use of brands in films has generally been protected by the courts, even when the companies aren’t pleased with the portrayals. “It wouldn’t have been as effective a film if they used a bunch of non-generic brands,” said Dougherty, who is also the director of the school’s Entertainment & Media Law Institute. “In a normal situation, if the alcohol were just there as a smaller part of the movie, they might have created an artificial brand for it.”

Unfortunately, with the wonderful garden of permission culture that IP laws have fertilized so well for us, companies think they can control…and control…and control. But just because sometimes filmmakers seek out product placement, that doesn’t mean that all brand appearances need to first receive approval. Thankfully, thus far, the courts have recognized that they cannot keep their products out of film this way. Now let’s all go have a non-generic beer.

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Companies: anheuser-busch, paramount

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Comments on “Budweiser Asks Paramount To Remove Their Beer From The Movie Flight”

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78 Comments
btr1701says:

Re: Re: Re:2 Re: Re: Re: Re:

He’s talking about the guy in the movie
getting in trouble.

It was vague antecedent, which is why I asked for clarification, chuckles.

You don’t seem too bright.

Ah, the ad hom. The last refuge of the intellectually bankrupt. Nice to see you ‘just trying to engage in an honest debate’ again, AJ.

You’re a hoot, that’s what you are.

G Thompsonsays:

Re: Re: Re: Re: You Reap What You Sow

Except this isn’t even Fair use…. The term “fair use” alludes that you have some sort of defense for something that might be deems unlawful/illegal due to some other right that someone else with conrrolling interest has. In this case Budweiser think they can control usage of their product in any way at all.

The problem is there is NO breach of trademark (or any other IP) since it is irrelevant therefore fair usage does not exist since using a real world product that has been legally purchased for its legal usage is LEGAL.

Lord Binkysays:

Yeah, I could see how McDonalds/BurgerKing/FastFood could say “You can’t make a documentary that shows my product because I don’t like how it makes me look”, so I don’t see how it is any different for any other company. If you don’t like what alcohol does to people, remove it from your drinks. Don’t blame anyone else for what happens to your product sales though.

Coogansays:

Re: Re: Re: Re: Re: Re:

Well, that depends. Observe:

Hollywood, CA. Outside the Paramount Studios lot. A young man (“Steve”) angrily storms out onto the sidewalk. His friend (“Alan”) sees him in his perturbed state and walks up to him

Alan: Hey bud, what’s going on?
Steve: Those jerks are robbing me! Get this. They used MY script to make a movie. A movie which ended up making over 350 million dollars. And yet they insist that it actually lost money so they don’t have to pay me the 2.5% of the profits my contract says! Can you believe that?
Alan: Wow, that sucks. Come on; I’ll buy you a Bud Light.
Steve: Thanks, man. I’m feeling better already

Fin

Or, they could make a commercial with a Clydesdale crapping on Paramount logo. Either way, funny!

G Thompsonsays:

Re: Re:

How can you exploit a product if you use it, or show it being used, for its intended legal purpose?

The courts don’t even back them since their is no case to answer, and therefore no defence… the laws as they stand give no grounds for exploitation nor anything else.

There;s an easy way for companies to control how they want there products to be shown in the real world.. DONT FUCKING SELL THEM!

btr1701says:

Re: Re:

It’s not about censorship or copyright,
it’s about the image of the company;
and drinking while driving is illegal.

Yes, we know that. No one claimed otherwise. The point is that companies don’t have a legal right to demand removal of products from movies that make them look bad.

And whether the actions portrayed in the movie are legal or not is irrelevant. Smith & Wesson can’t demand a movie production stop using its guns in scenes where characters commit murder, either.

Anonymoussays:

Re: Re:

I think you missed the “while behind the wheel” part. It’s not about censorship or copyright, it’s about the image of the company; and drinking while driving is illegal.

Dilution or false endorsement would be the claims. IP genius Timmy G is not one for issue-spotting or analysis. He thinks the opinion of “a resident fellow at Stanford Law School’s Fair Use Project” is reliable. That’s like asking Pirate Mike if some copyright defendant has a viable fair use claim. You know the answer before asking. Great job writing an entire article about the legal issues with unauthorized product placement in a movie, but without the bother and hassle of actually consulting the actual law. You are prime TD material–dumb, opinionated, and uninformed.

Dark Helmetsays:

Re: Re: Re: Re:

“Dilution or false endorsement would be the claims.”

And they would be summarily dismissed, or did you not read the quotes from experts in the linked article? Along with the case history they cited?

“IP genius Timmy G is not one for issue-spotting or analysis.”

Uh huh. That must be why the experts cited agree with me. Which experts are agreeing w/you on this one exactly?

“He thinks the opinion of “a resident fellow at Stanford Law School’s Fair Use Project” is reliable.”

Certainly more reliable than “a resident fellow at dont-exist school. You still haven’t cited anyone?

“That’s like asking Pirate Mike if some copyright defendant has a viable fair use claim. You know the answer before asking.”

We all appreciate you using capital letters for our titles, balls-stompingly incorrect though they may be.

“Great job writing an entire article about the legal issues with unauthorized product placement in a movie….”

The placement may be unauthorized, but it sure as shit isn’t illegal because….

“….but without the bother and hassle of actually consulting the actual law.”

….”Dougherty and Mark Partridge, a Chicago intellectual property lawyer, also noted that a court rejected an effort to get by Caterpillar Inc. to get its logo removed from tractors driven by the villains in 2003’s “George of the Jungle 2.” The company had argued its trademark was harmed by having its product associated with the film’s villains.” is a direct quote from the article I linked to, which also mentions another case, and which renders your entire post full of bullshit just that.

“You are prime TD material–dumb, opinionated, and uninformed.”

From the mouth of babes. Stupid, ignorant, and apparently illiterate babes….

Anonymoussays:

Re: Re: Re: Re: Re: Re:

LMAO. Good job running us through the analysis. Not. The fact is that each case is different, and just because there was no infringement in “George of the Jungle” does not mean there’s not infringement here.

But you and I both know that no matter what the facts are, you will always think there is no infringement.

Dark Helmetsays:

Re: Re: Re:2 Re: Re: Re: Re:

Seriously, just cite someone for this case, since they’re all different (and apparently caselaw has disappeared from the annals of history), that agrees w/you and I’ll retract everything I said above and we can have a wonderful discussion about the case. Just….one….3rd party expert….on this case….as the article I linked to does….

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

Why not do your own thinking? Go read the “George of the Jungle” case. The procedural posture was a motion for a temporary restraining order–which means there’s a balancing done where potential success on the merits is but one factor. That’s at the other end of the spectrum from a final decision on the merits, which is what you seem to think it is. The standard in that situation is quite different. The court doesn’t have a record, developed through discovery (documents, interrogatories, surveys, depositions, etc.), to base the decision off of. And even on that incomplete record, the court said the likelihood of success prong FAVORED CATERPILLAR (but just barely):

There does not appear to be anything in the limited record before the Court to show that the Defendants somehow took advantage of the fame of Caterpillar’s trademark to drive awareness or sales of George 2.7 However, the Court is reluctant at this early stage of the proceedings to rule that Caterpillar has no likelihood of proving its claim of unfair competition, despite the substantial misgivings it has. However, the slightly more than negligible likelihood of success on this claim will commensurately increase Caterpillar’s burden of proving that the balance of harms is in its favor.

Caterpillar Inc. v. Walt Disney Co., 287 F.Supp. 2d 913, 920 (C.D. Ill. 2003).

Then, having found that Caterpillar had demonstrated sufficient likelihood of success on the merits, the court looked to the other prongs of the temporary restraining order standard. And on balance, the court denied the motion for the temporary restraining order.

So all that case says is: On the very limited record before the court, Caterpillar was sufficiently likely to be successful on its claim of trademark infringement for use of its mark in the movie. However, after weighing that factor with the other factors, Caterpillar did not make a strong enough showing to justify the temporary restraining order. That’s it.

And you’re turning that into the statement that unauthorized use of a mark in a movie is not infringement in general. That’s NOT AT ALL what that case said. Heck, the likelihood of success on the merits prong went to Caterpillar.

So again, you haven’t bothered to actually read the case you’re citing to see what it says. And, honestly, have you even seen the movie? Have those experts? Did you really think you could write a whole article about why something isn’t infringing without even having seen that thing or identified and applied the actual law.

Seriously, dude. You fit right in on TD.

G Thompsonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

ah but the Caterpillar case has a difference in that Caterpillar based on probability showed that Disney were using there actual branding to promote the film. In this instance there is NO likelihood of promotion seeing as that the ubiquitousness of Budweiser (in the USA anyway) is so embedded into the American consciousness that any depiction of Budweiser or any other beer, foodstuff, whatever with the same ‘generic generalness’ would be entirely different.

Whereas Caterpillar is NOT used by everybody.

Therefore the usage of “Caterpillar Inc. v. Walt Disney Co., 287 F.Supp. 2d 913, 920 (C.D. Ill. 2003)” as a case cite is quite wrongful. AND YOU KNOW IT!

Anonymoussays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

I dunno. I think there’s a good argument that licensing for product placements in movies has become such the norm that the assumption is that it’s an endorsement. Plus, on the dilution claim, the mark wasn’t being used in a way that tarnished it (simply a tractor that said Caterpillar on it). Whereas, from what I understand (and I’d have to see the movie to see how it’s actually portrayed), in “Flight” the mark is being used in a way that could tarnish it, i.e., he’s an alcoholic pilot whose drink of choice is Budweiser. My point is, I don’t think you can just point to “George in the Jungle” and say there’s no claim here. The cases are different, and the differences could matter greatly.

techflawssays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

I think there’s a good argument that licensing for product placements in movies has become such the norm that the assumption is that it’s an endorsement.

Really? I think the companies just weaseld their way into it and now just like the rightsholders and payola now want to have their cake and eat it too. Fortunately it won’t fly.

G Thompsonsays:

Re: Re: Re: Re:

Actually the initial act of drinking whilst driving is NOT illegal, it is ONLY illegal if you are caught, have no valid defences (if there are any) and found actually guilty in a court of law.

As for your claim about dilution…. NO! There is NO trademark situation anywhere on the fucking planet where that has ever or will ever be any sort of trademark, or other IP violation in any way shape nor form.

Did you actually do any law at school? or like most AC’s actually like to state a huge claim with no actual citation of fact nor reasoning nor or of any qualified knowledge you might have somewhere.

hmmmm?

As for your hyperbole about being opinionated and uninformed.. well there’s a pot and there’s a kettle… and there is you being both at the same time.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

Actually the initial act of drinking whilst driving is NOT illegal, it is ONLY illegal if you are caught, have no valid defences (if there are any) and found actually guilty in a court of law.

I disagree. In my state, it’s illegal to have an open container in your car, even if the driver doesn’t drink any.

As for your claim about dilution…. NO! There is NO trademark situation anywhere on the fucking planet where that has ever or will ever be any sort of trademark, or other IP violation in any way shape nor form.

I suspect that the dilution claim would probably fail, but I haven’t seen the movie and I don’t have any evidence. To claim that there’s no dilution without looking at any evidence is the definition of working backwards. It’s funny how TD mocks others who used faith-based methodologies, but then that’s what TD does itself.

As for your hyperbole about being opinionated and uninformed.. well there’s a pot and there’s a kettle… and there is you being both at the same time.

Timmy G decided there was no infringement the moment he heard about this situation. His conclusions are so obvious and predetermined that it’s sad. Look, I have no problem with this being noninfringement. I have issue with his substance-less article where his conclusions are reached without looking at the facts or analyzing the law. It’s just mindless idiocy–Pirate Mike’s bread and butter, no doubt.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

So you don’t have a problem with the conclusion, you just don’t like the specific words I used or that I left some of the heavy-lifting to the article I linked to.

Got it.

That’s right. And this is a criticism I have for Mike many times as well. I don’t care what your conclusion actually is, I care about how you arrived at it. I’m criticizing the process, not the substance.

btr1701says:

Re: Re: Re: Re: Re: Re:

Actually the initial act of drinking
whilst driving is NOT illegal, it is
ONLY illegal if you are caught, have
no valid defences (if there are any)
and found actually guilty in a court
of law.

Huh? Let’s see if that works for other crimes.

The initial act of aggravated rape is NOT illegal, it is ONLY illegal if you are caught, have no valid defences (if there are any) and found actually guilty in a court of law.

Hmmm…

G Thompsonsays:

Re: Re: Re:2 Re: Re: Re: Re:

My point there was pedantic to the extreme yes.

But as any LEO knows the perfect crime is one where no one knows that a crime has been committed..

ie: Always obey the 11th commandment: Thou shalt not get caught

Though 80% of the time it’s ethically and morally better that you don’t do the crime in the first place ๐Ÿ™‚

btr1701says:

Re: Re: Re: Re:

Dilution or false endorsement would be
the claims

They can make whatever claims they like. It’s not a violation for a movie to show brand names without permission.

Neither is there any legal principle which requires a movie to include brand logos in depictions of the real world, as a bunch of companies claimed a few years ago when a film included a scene set in Times Square, and then went in and digitally removed all the advertising from the huge twinkling signs on all the buildings and replaced them with the logos of companies who paid them for the privilege. The real companies cried foul and sued over it. They were quickly sent packing by the court.

See how that works? The fact that some big company makes an IP claim doesn’t mean there’s a valid IP issue.

IP genius Timmy G is not one for issue-spotting
or analysis.

And you seem to think just because someone can make an issue out of something, that means they have a case.

He thinks the opinion of “a resident fellow
Stanford Law School’s Fair Use Project” is
liable.

It’s a helluva lot more credible than some narcissistic alleged law student with delusions of grandeur posting comments on a tech blog. At least we can be sure of the Standford guy’s credentials. You– not so much.

Great job writing an entire article about
the legal issues with unauthorized product
placement in a movie

Such an article would actually be pretty short. Since movies don’t require authorization to use real-world products, there are no legal issues involved in doing so.

cosmicratsays:

This was intentional

Most movies/TV shows etc. assiduously get “clearance” on any recognizable brand name before including it in the film, but this isn’t because they strictly speaking have to -it’s just cheaper than fighting potential civil suits later. The pressure to pre-clear absolutely everything comes down strong from the corporate offices onto the director and crew, such that it is practically impossible for us to use uncleared brands in the production. The fact they included these brands in this movie without clearance shows they cared about authenticity and resonating with viewers. It is certainly a calculated decision on their part. And I applaud them for it.

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