Draft - Product Placement and Fair Use

A second viewing provided the answer. I did miss it.

Martin Karsten

of similar interest listen to <a href="https://www.cbc.ca/ageofpersuasion/" rel="nofollow noopener" target="_blank">https://www.cbc.ca/ageofpersuasion/</a>

Galen Thurber

I kind of assume that falls in the category of, "litigation is expensive, we're not going to get that much in damages, it will make us look like jerks, and we don't really care that much" - but I used to wonder the same thing when I watched Suits. They name-dropped a lot of biglaw firms in a pretty neutral way, but Skadden, Arps, Slate, Meagher &amp; Flom took a lot of hits and it's a law firm with a huge litigation practice. I just have to assume most brands don't really care.

Eileen Nguyen

Hey, Lindsay! That was very interesting content. I used to be pretty uncritical about the media I consumed, but ever since I've seen a couple of your essays, and some similar content of other creators, I actually feel my media consuming habits shifting ever so slightly. I have one question that the video didn't answer (or maybe I missed it). what kind of "thing shown in media" was the appearances of the Cheese Cake Factory in your video? Fair use because it's educational content? Again, very interesting and mentally stimulating stuff! Please keep creating!

Martin Karsten

Hey, Lindsay. I missed the draft post, but watched the finished product on YouTube. I was really curious about placement and fair use on things like the TV show Mad Men which uses real-life products for the storylines in a sometimes very unflattering way. Two examples off the top of my head are the John Deere lawnmower scene (where a secretary runs over a guys feet with a riding lawnmower) and the entirety of the Jaguar story arc (getting the account by prostituting out Joan to a Jaguar executive and Lane price attempting suicide in a Jaguar only for the car to fail to even start.) How do these things fall on the spectrum since they are obviously not placement or endorsement? Is this non-defamatory fair use?

... and (never get used to return causing the thing to post) the second thing is a brief clip at about 9:50 which you insert without comment about 'dumb starbucks'. The clip's implication is wrong and its placement suggests you endorse its legal interpretation. While modifying a trademarked term can provide some protection it is not clear cut - the Anti-Monopoly case fought in the late seventies and early eighties (decision in 83 I believe) made this clear. Though Anti-Monopoly ultimately won it had additional supporting points (namely that the Monopoly trade mark had never in fact been valid) and it was so widely thought that the courts decision was incorrect that it led directly to changes in US law governing trade marks. Subsequently the owners of that mark, General Mills then and Hasbro now, have made the argument that anything resembling their product using any variation of a term resembling or ending in -opoly was infringement and have broadly been successful in that. So if you opened a coffee shop using Starbucks colour scheme and logo but just stuck 'dumb' in front, or 'is stupid' afterwards you would almost certainly not be protected - whether you could get away with producing a skit about bad coffee (a different sort of product than actually selling coffee) by doing so is a different question but it would seem superficially to be at least very doubtful. I would suggest either adding commentary around that clip, or since it is probably not strictly needed for the flow of the piece just removing it entirely. Though note just my opinion as I am not an expert in intellectual property.

It is really good and I enjoyed it. Not an IP lawyer but there seem to be two glaring things that leap out to me. The first is that the video conflates trademark and copyright, which are regulated by very different legal systems in all countries (and as someone pointed out vary by country). Copyright is usually used in the video, and would for example protect in the song examples, but for most of the companies cited it is the trademark that would be infringed. A sympathetic listener will likely just mentally substitute 'various legal frameworks which control the use of intellectual property' when the word copyright is used because the word is used in every day use both for its more technical definition and as a broader term to encompass related legal concepts so it is not a big problem, but you might want to maybe just flag early on that you will use some of the legal terms, particularly copyright/trademark, in a fairly loose way.

I will 150% buy a pin that says "I'm losing to a bird!" My girlfriend is a Hunchback fan, hence a fan of your video about it, and "I'm losing to a bird" has become an in-joke for us.

Maria Tostado

I didn't comment on the Satanic Temple case because I don't know enough about it. I've been dealing with content moderation and media for the last few months (if curios, I have a blog at Wetmachine.com

Appreciate your comments. As a fellow lawyer I was also tempted to comment but see you got here first. Cogent points all around.

Reade Bramer

I loved it, the jokes all land and it's a very interesting topic. I'm not an IP lawyer, but I noticed that Harold didn't mention something about the Satanic Temple lawsuit that I'd been talking about with a friend: an important point was that this wasn't just some vague symbol of Baphomet but that the statue of in the show was almost entirely a reproduction of a specific statue commissioned by the Satanic Temple, so that it was a breach of copyright. The images you already have in the video make that very obvious, thankfully, so if it an important distinction to make, it'll just be a matter of editing the voiceover.

Klil H. Neori

Is there room/would it be important to note the increasing use of Chinese brands in some of the major blockbusters of late that are overseas coproductions?

Cal O'Boyle

I enjoyed how well the legal cases explained the earlier concepts. The differences between law and 'facts on the ground' are valuable insights. And the seamless mid-paragraph/sentence audio transitions between different scenes are both well done and super stylish. Best of luck getting the final version out!

thefifthmatt

To conclude, I really enjoy the show (both generally and this episode) and think you did a generally good job navigating a very difficult and complicated set of legal doctrines. I have not put in any links because I am not sure what the linking policy is here, but please feel free to contact me or Public Knowledge if you have any questions or would like to discuss any of this further (publicknowledge.org is our website and it has our contact information). I would love for you to talk to our intellectual property expert, Meredith Rose (she gives a bunch of panels about this at Dragoncon every year, and does a fair amount of blogging on things like copyright and cosplay).

4. Finally, it's important not to confuse the difference between copyright and trademark. Many things cannot be copyrighted for many reasons. For example, the words "Cheesecake Factory" cannot be subject to copyright. A particular highly stylized representation of the words "Cheesecake Factory" can be copyrighted as an artistic work. But the two words "Cheesecake Factory" cannot be copyrighted. This is why we have Trademark, which serves a very different purpose than copyright (and even comes from a different provision of Article I authority to Congress). Trademarks are specifically "marks used in commerce" and the primary statutory purpose is to avoid consumer confusion. This has many profound differences. For one thing, a trademark is limited to a particular line of commerce. They also come in various strengths such as strong or weak. Common words have weak protection. So the use of the word "Apple" for a music company and a computer company was not really a problem -- until said computer company actually started to do music related things, like iTunes. I won't try to get into all the differences here. My broader point is that you necessarily need to have fair use to use a set of words that may be someone's trademark because the use may not be in commerce or the use may not be in the same line of commerce and there is no commercial confusion. One more wrinkle, however, before I illustrate why this matters in the example of the Cheesecake Factory. There is a special category of trademarks known as "Famous Marks."These enjoy a much greater level of protection, as Congress decided that it was unfair to TM holders who developed lots of recognition in their brand and good will in their brand if third parties can leverage them. Cheesecake Factory is certainly a famous mark, and therefore subject to these additional protections. So to play this out with TBBT. To describe Penny as working at Cheesecake Factory and never actually showing something that purports to be the Cheesecake Factory is probably OK, even though Cheesecake Factory is famous. For one thing, the words themselves as English words (as opposed to in the stylized representation you see at the restaurant) are common words, so the interest is weak. For another, the purpose here is descriptive of the character's occupation, and is not being used to sell similar products. Nevertheless, because Cheesecake Factory is a famous mark, they have a reasonable argument that this is taking advantage of the famous nature of Cheesecake Factory. Ah, but this is where fair use may step in, precisely BECAUSE Cheesecake Factory is a famous mark. If I were defending, I would argue that this is a transformative comment through fiction. Penny, a struggling actress, works at Cheesecake Factory, a company that caters to the elite which she aspires to join. By showing the menial and degrading nature of working as a waitress at Cheesecake Factory, I am in fact making a comment about the nature of such establishments like Cheesecake Factory and their place in our society. (This is the Trademark Section of the various Barbie Girl cases you mentioned. Matel sued for TM infringement as well). But what about showing an actual Cheesecake Factory, or a set purporting to be a Cheesecake Factory? Here we stray much closer to infringement of the famous part of the mark, although my argument about a transformative use is stronger. But now I am potentially running into another aspect of TM law called "tarnishment." According to this doctrine, I am not allowed to tarnish a trademark by associating it with unsavory things. This obviously must be balanced against the First Amendment right of criticism captured by the Fair Use doctrine. So it gets very complicated. This is one reason why so many cease and desist letters with regard to TM get settled by a simple exchange of letters acknowledging that the other side has a valid TM and the holder agreeing to license the use for a limited purpose (thus satisfying the legal requirement to "rigorously protect" the TM -- another difference from copyright. I don't need to rigorously protect my copyright, but I do need to protect my TM.)

3. Actually, YouTube cares quite a bit about infringement, and it is really, really damaging to policy to spread the idea that they do not. The problem is that judging from viewing your video what is and is not fair use is just about impossible. To require interactive websites to take the same steps that professional publishers use to verify copyright would be prohibitively expensive, effectively destroying the ability to allow anyone other than a handful of professionals to produce content. This is why Congress struck a balance in 1998 called the Digital Millenium Copyright Act. This requires an interactive service to take down any infringing content if a rights holder notifies the interactive service (like YouTube) that someone has uploaded infringing content. Please note this was a massive shift in burden from the copyright holder to third parties to police the copyrights of others. Prior to this, it was entirely up to the rightsholder to police for violations in the same way it is up to any individual to protect their property. We do not, for example, require parking lots to monitor all incoming and outgoing cars and run them against all police reports to determine if there is a stolen vehicle. I won't try to debate here whether Congress struck the right balance. But the idea that YouTube and others do not care is being promulgated and used by the large studios to push for ever increasingly restrictive rules and more expensive policing requirements. YouTube already spent over $60 MILLION to develop its content ID system in an effort to address these accusations. To address product placement, Youtube would need to ban live broadcast simply and require anyone posting a video to provide proof of a licensing agreement, or review each video to determine whether the fair use factors are met. Whether or not you think Youtube could do more, please do not continue to promulgate the idea that Youtube (or most other sites that allow user generated content) treat this with a nudge and a wink. Enforcement on this stuff is insanely complicated. As you yourself observe in the video, you have had your own content challenged when you believe it is fair use. If Youtube is supposed to "care" more about copyright, do you think challenges that err on the side of blocking for potential infringement will go up or down? Spoiler alert: they go up. See Chilling Effects dot Org for some examples.

2. The statement that Fair Use is a defense, not an affirmative right, is one of those things that lots of people say but is in fact technically wrong (although it works in much the same way). This has a lot to do with how copyright works, and is why the difference matters in copyright doctrine, but not so much in every day life. To try to be brief, under US law, Copyright is different from real property in that it is an artificial monopoly that Congress *may* establish for a limited time pursuant to Article I of the Constitution. Congress therefore defines the scope of the copyright protection. Section 107 states that copyright does prohibit the "fair use" for the listed purposes. That is to say, your copyright does not give you the right to control such uses, rather than my use of the material for these uses justifies violation of the copyright. Yes, this seems like confusing legal double speak, which is why many people (even some courts) get it wrong. But the difference is important for a number of reasons I will not bore everyone with now.

1. Product placement on television is indeed required to have disclosure. Section 317 of the Communications Act (47 USC 317) requires acknowledgment by the broadcaster "for which any money, service or other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting." The FCC has consistently ruled that this includes product placement, not merely sponsorship of the entire program. Product placement notification is not required for motion pictures or web videos by the FCC, because they are not broadcast material and not subject to FCC jurisdiction. The standard you actually quote is from the Federal Trade Commission (FTC) guidelines. The FTC has jurisdiction over all advertising regardless of medium, pursuant to Section 5 of the FTCA (15 USC 45).

Hi. First, let me say I'm a huge fan. I am also a communications lawyer of 20 years experience and Senior VP of Public Knowledge, non-profit advocacy group that works on issues of communications law and intellectual property (particularly copyright) here in the U.S. Please take these comments as a response to your request for feedback and a genuine desire on my part to improve your excellent show.

"Does anyone want to buy $25 for a t-shirt that says BRAND in Impact?" YES! I mean, not at a mall kiosk, but from you? Absolutely.

Jasmijn Wellner

Good video. I'm not sure if you said this explicitly, but it would be nice if you could make it clear that this is US law surrounding fair use, the regime in my country is very different. It's still interesting, as US law has large influence even on non-US media I use, but I don't think that was conveyed by anything more than inference. Also, at around 25% I think the jargon and legalese of it was slightly overwhelming to me. Probably not something you can fix in a day, but just to note that it dragged there.

As you say, they can't be defamatory or portray the league in a way that is contrary to how they are, but that doesn't mean they have to be squeaky clean either. I do think that if they wanted to be provocative like Any Given Sunday or ESPN's shortlived series Playmakers, then they'd be enticing the brand to sue them. With the latter series, iirc ESPN faced retaliation over their other dealings with the NFL which is the other side of having giant corporations with competing interests. I know that there was talk a few years ago for Lexi Alexander to make a film called Crossface about Chris Benoit, which would've dealt with his time in both WCW and WWF (both owned by WWE) ultimately leading to his murder suicide with the company complicit in ways. AFAIK there's been no public progress on it since she was announced as director. I bought the book for a trip this summer and couldn't quite commit to reading it, although I do think that there is plenty in that story which is worthy of dramatic critique in terms of "ruthless aggression" and toxic masculinity. Meanwhile, there are two official WWE films coming out: the Dwayne Johnson produced Fighting With My Family (based on the documentary of the same name about the Knight family) and the Vince McMahon biopic Pandomonium which IIRC had an early draft that would've portrayed the company in a negative light and so WWE bought the script themselves to control the narrative.

The one example of fictional fair use that I know of is the Dwayne Johnson series Ballers. Unlike typical football fiction that uses a fake league (The Replacements comes to mind which was inspired by the NFL lockout in the 80s or something) or being endorsed by the league like my guilty pleasure Draft Day. <a href="https://www.businessinsider.com/why-the-rocks-ballers-can-use-nfl-logos-without-consent-2015-6" rel="nofollow noopener" target="_blank">https://www.businessinsider.com/why-the-rocks-ballers-can-use-nfl-logos-without-consent-2015-6</a>

Agreed. The first time the panning shifts, it feels a little quiet.

Kathryn

👍

When I was watching the video (on my desktop), I heard the BBT clips, but did you slow them down? Sheldon's/Parson's voice was like a half octave lower than normal.

Danny

At 2:05 the audio goes from being centered to heavier on the left, this lasts until 2:23. Not a huge deal but I found it a little unpleasant.

The audio on those clips is also off. Felt like I was losing it for a minute, but when the video cuts back to Lindsay the levels sound fine. I'm sure y'all are on it, but just in case figured I'd comment

Excellent video, as always.

I believe it states on her profile that everyone who pledges $10 and up is listed in the Patreons section of the credits. If that’s you but you aren’t listed, I’m sure it was an honest mistake!

Why wasn't I listed in the Patreons? Is there a dollar threshold?

Ryan Courdy

I didn't quite see it this way. Both fair use and product placement are about the money because the content generated by fair use (as discussed in the video at least) equals revenue for those using it. The main difference is about who gets the money and who is controlling the message being put out about the brand. I felt the point of the video was exploring the interdependence/fuzzy boundary between the two.

Ok. I first watched on my phone: no sound. My tablet: no sound. Then on my laptop: sound. So sorry to get you worried like that. Guess there is a problem on the Android YouTube app, then.

I have to say I'm a bit bewildered at the comments saying there's no sound in the BBT clips - I've got it in the export and I can hear it on the YT file - for a moment I was worried YT had removed the sound but I haven't got any contentID flags. Is everyone having this problem?

Lindsay Ellis

The video is great and Long Island Iced Teas always accompany regrets. The choice of the Cheesecake Factory is interesting because I don't think I even knew the brand and, if I did, I definitely didn't have a mental image of it. I don't think it's a very well-known brand outside the US. It made a bit harder to engage with the parts of the text that were directly tied to it, but made for an interesting perspective to learn that it both had an image and that said image was not at all what was presented in a wildly popular show. Also, there was no sound in The Big Bang Theory scenes. I'm not complaining.

I'm so glad you've made this video! I think there is a lot of misconceptions about Fair Use and what it actually is and where it limits are and this explains it really well.

CS Drennan

Not sure if this is just my phone, but the dialogue on the Big Bang theory clips was completely absent. Love the content as always though. You’re dry wit is my favourite and I literally laughed out loud at the gold sarcophagus joke.

By the way, some of the Big Bang Theory footage is a bit grainy, especially compared to the clearer shots you have.

JackMagic

A great video as always! I never considered the fact that fair use was more of a defense rather than an actual right. Then again, free speech isn't really a right. The first amendment just prevents congress from making laws that restrict speech, press, religion, right to assembly and criticism of the government.

JackMagic

So good! Wish you'd been one of my profs back in university. Nit pick, audio is slightly jarring 16:20 into the netflix-satanic temple part. Different mic/placement or whatever. Super not important, just noticed it.

Lowpass

It's a great look at it! If there is one piece of feedback I could give (it is a draft, after all :) ), it's that it feels a bit odd to cover both Fair Use and Product Placement. They both share an element, using other people's stuff in your content, but they kinda aren't used the same way. One is a form of generating revenue, the other is a form of generating content. And the perception people have of them is similarly opposite: The former angers when it blatantly shows up, the latter angers when media's removed for straying too far from it. Maybe it could help if the two were linked earlier on, "These are actually really closely connected" type thing, to reassure us dumb monkeys that you're going somewhere with this? I mean, I'd say that you shouldn't need to do it, but *points at the first few minutes of this vid*.

Orellien

so full disclosure I was really hungover that day, so the fact that we wrote in the long island iced tea into the scripts was one of my bigger regrets in life that day

Lindsay Ellis

I really enjoyed this; the pacing was solid for the most part (maybe a few too many repetitions of the Long Island iced tea joke? It was still funny but), and, as always, really well put together. Obviously since it's a draft there are some technical things to clean up, like the sound quality being sort of all over the place, but over all I think it's in decent shape! Glad to see you're posting again.

I really, really hate the citizens and officials of Rutland, Vermont!

I want that BRAND t-shirt! But I guess I can go and make it myself...

Leo Molas

I too love BRAND brand products.

IcyKitty

I wasn't aware of some of the distinctions. Interesting, thanks!

CodeTako

Interesting, I hadn't heard about the differentiation between Weird Al songs that comment on the original song vs simply use the tune for some other silly lyrics

Love you Lindsay &lt;3

Thing good

Chris Hensch

Fuuuk, now I want cheesecake at 11pm you absolute monster

Noclip