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...
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.
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.
The brand owners still get licensing fees whenever real brands are shown, in 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Counterpoint: the cratering sales of Corona beer in the past month
https://www.brusselstimes.com/all-news/business/98659/delhai...
* SPOILER AHEAD *
While Apple will let you use an iPhone on film, they won't approve it being used by a villain.
It's just a case of "if you don't use our product this way, we won't do cross promotions or pay for product placement with you anymore"
https://www.businessinsider.com/apple-product-placements-in-...
They give away devices, to studio, cast, and crew. Apple puts your movie prominently in ads or on the iTunes Store. etc.
There's no real need for this wired free speech limitation to protect something as dead as a brand.
The whole "Our soda taste so much better than the unnamed competitor's!" style advertising would quickly change to something like "X Corp Brand Soda is the biggest supporter of elephant extermination worldwide and uses lead to give their product their sugar-free sweetness. Is their soda really worth it? (haha, just kidding. Or are we?)"
Smaller companies would be absolutely crushed by larger corporations dragging them through the mud with political style ads all day.
Brands, music, trends, etc, are always a street with two-sides, yet we act like there is only one side worth consideration. e.g. These things are the part of our lives as well, and we made them what they are, so there is shared consideration, which is exactly what this judgment is saying.
Or perhaps it is your company that is involved in the pornography. And they are secret Nazis. Not to worry. All fictional.
https://www.loeb.com/en/insights/publications/2008/04/batra-...
> Plaintiff Ravi Batra, a bald, Indian-American lawyer involved in a judicial corruption scandal, filed a libel-in-fiction claim against the writers, producers and broadcasters of the television show Law & Order, claiming that an episode about a judicial bribery scandal that included a character who was a bald, Indian-American lawyer named Ravi Patel was defamatory. The court reached this holding after noting that no libel-in-fiction law suit in New York state court had survived a motion to dismiss in almost 25 years, and then denied defendants’ motion to dismiss.
Actual malice is additionally only necessary if the victim is a public figure.
The law should basically just say there's no trademark violation in featuring a real world product/service in a fictional work so long as it couldn't reasonably be confused as a piece of marketing by the creator of said product or person. Obviously the work shouldn't be about say, Mickey Mouse, but it should be perfectly fine to feature say, Disney and their products as background elements in a fictional work without the approval of Disney.
Just seems ridiculous to have it work any other way.