Budweiser's Mad - Inside the Fight Over Hollywood Trademarks

Budweiser's mad about "Flight," Faulkner's estate is suing Sony: Trademark overload is reshaping how brands appear onscreen -- and how showbiz protects its assets.

Anheuser-Busch, maker of Budweiser, objected on legal grounds to Denzel Washington's overconsumption of its beer in Paramount's Flight. And publishing house Rizzoli demanded in October that NBC stop using "Rizzoli" as Ray Romano's character name on Parenthood.

All these spats concern one of the hottest legal issues in Hollywood: who gets to use trademarked intellectual property in films and TV. If copyright law protects creative works from being ripped off, then trademarks (think James Bond or Hobbits) might best be described as safeguarding a signature mark of identity from being exploited by others. Brand owners typically can't stop a movie or TV show from mentioning a trademarked phrase or showing a logo, but they can prevent a "likelihood of confusion," meaning the average consumer can't discern affiliations, connections or associations between one product and another.

So when Anheuser-Busch complains to Paramount, it argues that consumers -- so accustomed to seeing product placements in films -- might think Budweiser endorsed its appearance as Washington's preferred bender booze in Flight. Many people assumed Jaguar paid for its cars to be featured on Mad Men this season -- until a major character was thwarted in his attempted suicide by a defective roadster. Studios often seek to avoid potential problems by simply using fake names when brands don't pay to be included.

"Trademark law is the quietest sibling of the intellectual property family but capable of lots of damage," says Charles Coleman, an attorney who recently coined "trademarklawpocalypse" (and, of course, he has trademarked the word).

Lawyers are quick to caution that there are First Amendment defenses against trademark suits alleging a likelihood of confusion. In June, Warner Bros. defeated a claim made by Louis Vuitton over a knockoff handbag used in The Hangover: Part II by pointing out that it was artistically relevant to the film. (Now the studio is on the other side, suing the makers of the cheapo movie Age of the Hobbits for allegedly violating its trademark in The Hobbit.)

The copyright term is lengthy but finite, and some works overlap with what's in the public domain. Hence, Warner Bros. has been assertive over its trademarks from The Wizard of Oz because the copyright in the underlying book is public, allowing similar movies (see Disney's upcoming Oz: The Great and Powerful). In addition, as studios are under threat by authors attempting to terminate copyrights, trademarks represent a backup plan. When Victor Willis of The Village People snatched back his songs, his publisher scored revenge when a court ruled it still owned trademarks on the band's name and logo.

Read More: http://www.hollywoodreporter.com/thr-esq/denzel-washingtons-flight-parenthood-inside-393168