Using real life products in commercial renders... Anyone get in trouble with it?
MJ007
Posts: 1,716
in The Commons
Im curious if anyone has actually got in trouble with using real life products in their commercial renders? For example, using a Coke can, or a McDonalds building in their background imagery, or a Goodyear sign, etc.
And if so, whats the potential damage in doing so?
-MJ
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Not personally, but I think the potential for trouble would be what type of commercial product the render was...a animation made in DAZ having a series of renders of too many typical American scenes would incidently have McDonald's and Coca-Cola and so on but oddly when I try to think of movies, TV shows, and so on with McDonald's and Coca-Cola and such i can only remember that Supersize McDonald's movie which was allowed under the pretext of social commetary. I can't even remember a particular brand of cigarettes in that Thank You for Not Smoking moview although I remember the ad copy was done to look like Lucky Strikes.
I admit I am curious about products that are clearly someone else's intellectual property. I have bought items unaware that they are from a video game or movie. I don't tend to watch a lot of contemporary films or play modern games so I am not always aware of the knock off aspect.
I haven't gotten into trouble using a product with someone else's IP. But I suspect it just depends on if someone reports you. Some companies like the Mouse are pretty hardcore about pursuing people who infringe their products. Others don't care as much.
I have seen McDonalds, Coke, Pepsi, Dodge, Subway you name it in commercial movies and ads... but i always wondered if this was really a "Big Deal" or not? Ive actually even considered if these companies would be appreciative and offer a monetary "Thank you" for doing so. I just cant see if a render CLEARLY shows a character drinking a can of Coke, that they would send a "Cease and Desist" letter. Now if it was done negatively, or so... then i would expect it. But if used in a positive light, I would be shocked if they were upset over it.
-MJ
I know in my animation I release I have to account for all the products & sound files i use with google most of the time. so I would not dare use known product labels without the companys permission.
the commercial movies and ads you have seen have more than likely paid for/or been paid for or have some sort of agreement/contract with the companies to use their IP in the movies and ads. If it is a big name movie, the company paid the movie studio to advertise their IP in it. Certain companies will protect their IP aggresively, while others won't.
Well, look at Turbosquid. Trademarks and copyrights are taken seriously and they are in hot water for selling Trademarked Car models like BMW and Ferrari. I believe Red over at Rendo was taken down due to the likeness of the actor, but that could have been a rumor. Your best bet is to not do it. Try using kinda-like brand names like Acres instead of Acme or something like that. You never know who will see what you make, and you never know who gets notified of infringements.
I think they should be happy that someone would advertise their products for free. Campbell Soups actually fully accepted and even provided Andy Warhol with material when he made the famous can pictures.
"Warhol did not choose the cans because of business relationships with the Campbell Soup Company. Even though the company at the time sold four out of every five cans of prepared soup in the United States, Warhol preferred that the company not be involved "because the whole point would be lost with any kind of commercial tie-in. However, by 1965, the company knew him well enough that he was able to coax actual can labels from them to use as invitations for an exhibit. They even commissioned a canvas."
https://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans
Apparently Coca Cola didn't mind either at that time:
"It was during the 1960s that Warhol began to make paintings of iconic American objects such as dollar bills, mushroom clouds, electric chairs, Campbell's Soup Cans, Coca-Cola bottles, celebrities such as Marilyn Monroe, Elvis Presley, Marlon Brando, Troy Donahue, Muhammad Ali, and Elizabeth Taylor, as well as newspaper headlines or photographs of police dogs attacking civil rights protesters. During these years, he founded his studio, "The Factory" and gathered about him a wide range of artists, writers, musicians, and underground celebrities. His work became popular and controversial..."
https://en.wikipedia.org/wiki/Andy_Warhol
Of course I'm no legal expert, nor claim to know what companies are willing to ignore/pursue but I think someone wearing a Mickey Mouse shirt in a scene or two is easily overlooked compared to a main or supporting character closely resembling Mickey Mouse.
I think it varies by country, but the general rule I remember from UK law is that it's OK to have something incidental to the image (photo in the case it was judged on), but not as the primary focus. (Not sure how Andy Warhol got away with the Campbell's Soup thing)
Trademarks are only to protect companies from other people making money off their good name. You can write a book where people discuss Superman, but not write a book where 'Superman' was the title.
So someone drinking a can of coke - if the coke was incidental to the image - would be ok. But a zoomed in coke-can with incidental hand/mouth attached, would not.
I guess if you really wanted to be safe, you'd have to write to the company in question and ask them about it. (Since they can afford more legal proceedings than you, sadly).
I've been wondering about this one - it's pretty close to Donald Duck. How do you know where to draw the line?:
http://www.daz3d.com/duckie-for-genesis
The way I see it, since the product can be used to create a wide variety of toon duck/bird people (most of which that look nothing like Donald) that's probably why it's ok.
However, if someone were to dial in the morph that looks a lot like Donald and tried to publish an animation or comic of that character, Disney might take notice and have something to say about that.
Basically, it was before the real craziness about it all started...the whole 'don't even think about using MY stuff' really didn't take off until AFTER Warhol did the soup 'thing'. In a way, it's his fault. Yeah, before that 'brands' didn't really appear in movies or TV shows, but unless you went out of your way to do something/were blatant about 'stealing' a 'brand'/product, companies were happy for the exposure. Then after Warhol, the whole game changed, because people saw you could make money off of just an image of a product/brand. That drove 'brand' protection to whole new levels...and then the Internet happened, which dwarfed the craziness of the late 60s/early 70s by orders of magnitude.
I imagine something like that. In that case DAZ' general claim that all products can be used for commercial renders and animations is invalid, sort of.
They probably had common sense and enjoyed their products being advertised for free.
Well the Duckie character looks more like the old Howard the Duck comic from Marvel than Donald but it's been very common to blatantly copy a product, slightly alter it, and then offer it as an original product. Coke, Pepsi, RC, and look at the cartoon characters before 1940 - it was hard to tell a mouse from a rabbit from a dog and so on. And even today, it's pretty hard to argue that Donald Duck gives Disney the right to prevent any business or artist from creating a character based on a duck, especially when ducks figure prominently in old folk tales that precede Disney by centuries. Same with humans and other characters, and artistic styles. I think that old UI infringement lawsuit that Apple lost to Microsoft is informative of how much protection a character that looks similar and even is named similar gets in the law - essentially next to none - just don't make it look exactly the same and call it exactly the same.
This is so... BUT...
1 ) Put a white duck in a sailor shirt, and only that shirt, and Disney will eat you for lunch.
2 ) Apple lost the UI infringement case against Microsoft because of "Prior Examples" - there were gui concepts older than Apple.
3 ) The "10% different" thing is a ) Purely subjective, and b ) for the most part an old wive's tale.
In reference to "I'd think they'd be happy to get more advertising":
The problem is, if you own a copyright or a trademark, you are required BY LAW to defend it if, at any time, you discover it is being infringed. You MUST post C&D letters, and if neccessary you MUST file suit. If you do not, and you allow someone to use your C / TM in their work without some sort of legal agreement in place, the copyright or trademark can be revoked. That's why Bayer no longer holds the trademark to "Aspirin", for one. And it's why you'll see stories of "Ebil Dizzney sues poor, struggling daycare" - but do NOT see that they settled out of court for ONE dollar.
When it comes to ANY time you see, let's say Coke, in a TV show or movie, if the brand name is not turned away from the camera, or hidden by the actor's hand, that is a specific product placement. Always.
And as for art... it's a tossup. If the art benefits financially more because of the presence of the product, they are more likely to sue. A single pic on DA may be "small potatos", but if the focus is the c/tm, then the art is getting hits, and thus advertising revenue for DA, because of the product, and the C/TM holder is more likely to sue. On the other hand, in the case of art on the scale of Andy Warhol's soup cans, they could have literally been anything. He wasn't glorifying soup, he was making a statement about consumerism and "pop" culture (of the time) - thus Campbells actually earned the equivalent of advertising from the scenario, thus did not sue.
I had a packet of Kellogs Cornflakes in a rendered promo for one of my apps, and I was asked by Google to remove it, which naturally I did. I think the main issue is that you cannot make any connection with any brand, or else some people may think that brand is endorsing your app. Note that the rules on promos are different to images appearing within the game. For the later the rules are more relaxed, since they are not being used to advertise your game.
Copyright does not have to be actively deended (though I suspect allowing infringement might well have an imapct on any damages awarded in cases where the infringement was prosecuted) but trademarks do. The incidental use rule does apply, but we need to bear in mind that anything in a 3D scene is there because it was made and placed there (albeit not by the same person in many of our images) so it would be very hard to argue that was incidental. I would advise inventing your own brands.
Actually, Disney did threaten to sue Marvel Comics over the iconic Howard the Duck design. If you look at any of the revivals of Howard from the mid 1980s onward, he looks less and less like a Disney duck. While we can't say anything with 100% legal certainty if the case didn't go before a judge, the fact that Marvel did change the character design rather radically makes me think there was some merit to Disney's case.
Somehow I am reminded of something science-fiction writer Frederick Pohl said during a panel at a convention on predicting the future. He said that back in the 1950s, he predicted that companies would pay people to advertise their products by wearing their logos on their clothing; he couldn't in a million years have imagined that people would actually pay the companies to do this [e.g., on T-shirts].
Some companies get crazy about it. I once wrote an online decorating article for an old website of mine, where I used the term "spackle." Apparently, that's actually a trademarked name even though many people use it as a common term, just like the "Kleenex". I got an email from the company asking me to take out the name of their product from the article. It surprised me since:
So I took the name out and used "joint compound" instead. Really stupid on their part. They missed out on potential sales by being jerks.
That said, I used a few product names in my first romantic comedy and have never received complaints. There are jokes about krazy glue and a few bathroom products in there. Nothing derogatory or that would deter someone from buying them. I can always remove the references if they hunt me down and complain about it.
You'd think they'd appreciate the hyperlink back to their corporate website, wouldn't you? Such is the topsy-turvy world as seen through the looking glass of corporate law!
People tend to confuse copyright with trademark. Being US-centric here, using a trademark in a way that suggests an official association, when there is none, may be against the Lanham Act. Similar "passing off" laws exist in other countries. The typical corporate response is a cease and desist letter. If the work has gained monetarily, the demand letter may include a not-very-polite paragraph on accounting for (subject to further discovery) and surrendering all monies received from the work.
Silent Winter's comments regarding the primary focus of the art applies in the US as well, but there is no clear delineation as to what defines such a focus. There are exceptions for fine art, but these hold when, presumably, the depiction is not malicious. Similar exceptions apply to works of parody and satire, but in each case, these are decided in court. There is no central arbitrator that says yea or nay and decides the merits from some book of what's allowed.
The "worst" that can happen is that you will be sued.
The above is not legal advice.
Basically, you hide or blur out company logos who are not paying to have their product advertised by you. You see this in music videos where cars and trucks have their logos blurred out even though everyone knows its a Toyota.
This is because the symbols and logos are Trademarked. So putting a car model out, that is almost identical to say, a BMW Z4, but without the logos or the BMW symbol, would NOT violate Trademark protections. However, it may be considered a copyright infringment (yes, blueprints CAN be copyrighted.) But as long as you aren't trying to pass it OFF as a BMW, and make money on it by using the similarity, within US courts you typically are NOT violating Trademark.
However, I could design a whole new car, completely different from anything on the market today or past, slap the BMW logo on it with their symbol, call it the BWM Intel-i7, and I'd be likely sued by BOTH BMW and Intel for Trademark violations. (because by using those symbols and logos and names, I am 'allegedly' using their brand recognition to try to sell a product which is NOT actually associated with them, nor licensed by them.)
Copyright is a much more nebulous issue. I won't get into that here.
But Trademarks DO have to be defended. Disney wouldn't win the 'donald' vs. 'howard' arguement based on Trademark. Anyone looking at the two designs would clearly see they are not similar, nor is either attempting to use the other to confuse consumers that "howard' is made by Disney, or that "donald" is made by Marvel. BUT, since someone COULD see a similarity between the two characters, the Trademark has to be defended. The court papers are filed, the case seen, and they both know it isn't going to be won. But they HAVE to do it, since if they don't, they can LOSE the Trademark.
Were you referring specifically to their product or gnerically to any similar type of product? If the latter, or if it could be read that way, then allowing the usage to stand could have been used as a an argument to remove their trademark and allow any company making a similar product to describe it as spackle.
I made this animation for a daz contest back in 2011 . and i had found coke can and beer bottles at sharecg.com that had the coke label on them so to be safe i removed the label and just painted the can all red .. it had familiarity because it was a can and it was red but no product label .. the thing Google hit me on was the sound files i use i had to have proof of license to use them which i had. because i had published the film copyright to my website before uploading it for public viewing. I have been hit so many time for licensing and copyright proof of ownership of the content I use I always now just write a copyright document for everything i use for my films it saves hassel and stuff when you get that dreaded letter asking for usage rights.
This animation was made with daz studio 3 back in 2011 it was one of my first few animation i did .. it was for the "wishful thinking contest daz had" and won second place. and won a very nice prize from ARTCollaborations it was Star Struck Twinkle for A4 That was a really good day :)
You picked a bad example. A car like the Z4 (or Z3, etc.) is instantly recognizable to many consumers. At the least, it's "famous appearance" would be protected by common law. They would justly argue that the distinctive appearance alone is sufficient to claim infrigement. You could stick a Yugo hood ornament on the thing and it would still be infringement. Logos and trade dress are separately trademarked. I don't have time to look, but elements of that car is very likely also covered by design patents.
*How* the model is used is more important. As the subject of fine art, or as an incidental element even in a commercial application, is often not considered infringement. However, since no two situations the same, this is where consultation with an IP expert comes in handy.
The above is not legal advice
Here's a somewhat specific example of what im wondering would be a problem (See Attachment). I am CLEARLY advertising a company's product and not attempting to copy their product and pass it off as my own. Would this REALLY be a problem? I simply do not understand why if so.
-MJ