The film producer Ted Hope is a thoroughly resourceful and brilliant guy whose opinions on where film, specifically “independent” film, is, and where it should be going, I find to be almost willfully eccentric and oddly objectionable about 80% of the time. I’m not the only one; as has been the case with many media gadflies, internet-friendly or not (and myself included), Hope has inspired a “fake” persona on Twitter, “@TedNope” whose hilariously smug and dyspeptic pronouncements are among the handful of things that make the social media tool kind of entertaining if not genuinely, well, worthwhile. In any event, the real Hope, who blogs at Truly Free Film (you begin right here to get a sense of my problems with his ideas) and tweets as @TedHope, last week made a Twitter observation from the set of his latest picture that resonated with me, to wit, “Sometimes the clearance stuff on set feels out of hand. How do you portray reality when you have to clear all trademarks?”
I have yet to read a definitive history of product placement in film relative to “clearance” and so on, but I can report from personal experience that it really is pretty crazy. Prior to my appearance in Steven Soderbergh’s 2009 The Girlfriend Experience, which shot in the fall of 2008, I had a number of in-depth conversations with its costume designer, Christopher Paterson, about how my character, an extremely unpleasant would-be mover-and-shaker who refers to himself as “The Erotic Connoisseur,” should be dressed. Paterson’s impression of the character, based on the narrative created by screenwriters Brian Koppelman and David Levien and the research done on the much-loathed-by-escorts “hobbyists” who rate the ladies on various websites, was, as he put it, of “someone with both an unwitting lack of vanity, and a disregard for style.” Someone not quite up-to-date, who dresses younger than his actual age. In other words, a slob who wears a lot of “ironical” t‑shirts.
Not to put too fine a point on it, but at the time I was working the slob-who-wears-a-lot-of-“ironical”-t-shirts theme pretty hard in my actual life, so these exchanges tended to make me into something of a sad panda. But I had to work through that. And to demonstrate—to whom, I really have no idea—how game I was, I actually went shopping for some even more obnoxious t‑shirts than those I actually owned. Things that I would never in a million years wear, but that my character would. Such as the charming “Your Girlfriend/My Girlfriend” item pictured above. Also, a big smiley face with the words “I HATE YOU” below them. On the day of the shooting, I packed those along with a more “neutral” item—a souvenir t‑shirt I got at Grand Teton National Park earlier that summer—and a sort of sentimental favorite, a t‑shirt I got at a joint in Paris called Studio Aventures that specialized in Tex-Avery-themed merch, this item featuring artwork in which Avery’s legendary Wolf from the MGM cartoon shorts is kissing the hand of Red Hot Riding Hood in all her burlesque finery. If you’ve seen The Girlfriend Experience or at at all familiar with the milieu it treats, you can see how this particular shirt might have been particularly apropos, and funny. And it was also kind of “me” while at the same time being kind of perfect for the character.
But it was not to be. Paterson liked all of the stuff I brought, but he was particularly enamored of the Tex Avery number. So was producer Greg Jacobs, and Steven himself. Only problem was we couldn’t use it without clearing the image on the shirt. Not via Studio Aventures, which made it, having at the time (I think I had bought this particular shirt in 1990 or so!) licensed the imagery from Turner. We would have had to call Warner Brothers, which now held the rights to all that Avery MGM stuff. Irrespective of the bureaucratic hassles involved, and the potential cost to the production had Warners decided to charge a fee (there was some joshing relative to the notion of us catching a break from them based on the millions of dollars some of those present had helped earn for the studio with some franchise or other), it was eight in the morning in Greenpoint anyway; nobody was gonna be in the office in California, we had to start shooting soon because the production was slated to be back in Manhattan well before noon. So, so much for that. And so much, it turned out, for the other t‑shirts; even in the case of something such as the Grand Tetons National Park item, getting a legal clearance was necessary in order to be on the “safe” side, as it were. My own understanding of the legalities of using a copyrighted artwork within a film or teleplay or whatever stipulates that such a thing ought to fall under the category of “fair use;” I surmise that nobody these days wants to be the test case for this theory. And that, conversely, the world is full of jerks who will frivolously pounce on you, legal-wise, at the merest scent of money-to-be-had, whether it’s actually there or not. (And I can tell you with some confidence that on GFE there wasn’t a whole lot there.) So Christopher finally squeezed me into a hideous puke-green t‑shirt two sizes to small for me, and it hardly mattered much anyway as I was mostly in long shot and under not-too-bright lighting. But still. Woulda been sweet to memorialize that t‑shirt before it went to its eternal rest, which eventuality arrived shortly thereafter. Still getting some wear out of a similar tee I bought from Studio Aventures a few years hence, and these days it actually fits, too.
A few years ago, the NYT published an article, “The Hidden Cost of Documentaries”, about such, uh, inconveniences; and featured a particularly egregious example of the makers of “Mad Hot Ballroom” having to remove a ringtone because the song’s publisher was asking for $10k in order for them to use six seconds of it.
http://www.nytimes.com/2005/10/16/movies/16rams.html?pagewanted=print
None of this clearance bullshit has anything to do with what the founding fathers or the framers intended for copyright protection. It’s time for all those originalists and strict constructionists on the court to pony up and stop rewarding corporations for having the owner’s certificate for something somebody else once made. Copyright is about protecting the rights of original creators (not come-lately “owners”) AND encouraging new creation. That second point–about encouraging new work inspired by and built upon the old–often gets lost in the same way that the freedom of religion crowd forgets about freedom from religion. News, commentary and satire have an easier go of it. Hip-hop forged some ground with sampling, but there’s no clear case law on it and always the risk of a lawsuit. A/V sounds and images are oddly privileged, overdetermined in a way that might look quaint in a couple hundred years. Why is it okay to have a character in a novel wear a T‑shirt like the ones you list or sit down and watch a scene from a movie like the one you acted in, but if somebody put that into a radio show or a documentary film without clearing it they’d be sued? Retarded. And fundamentally unAmerican. Time to go finish reading REALITY HUNGER.
“My own understanding of the legalities of using a copyrighted artwork within a film or teleplay or whatever stipulates that such a thing ought to fall under the category of “fair use;” I surmise that nobody these days wants to be the test case for this theory.”
I think that’s it in a nutshell. It’s bull. There’s no question that wearing a t‑shirt in a movie should certainly be protected by fair use, particularly since one of the conditions of fair use is that the quotation or excerpt, as used, must not limit the market for the original item. It should be obvious, of course, that seeing a t‑shirt in a movie is not the same thing as wearing it, just as reading a brief quotation from a novel in a review is not the same as reading the novel, and just as a brief sample of a song used to create the drums for a hip-hop track is not the same thing as the original song. The problem is that media companies haven’t just waged war on the concept of fair use – they seem to believe that it doesn’t even exist as a concept (except, one supposes, when they need a quote or an excerpt for one of *their* products). It’s a sad state of affairs, and of course it’s too often the case that those who would most benefit from a broad and strong fair use doctrine – documentary filmmakers, independent artists and musicians, etc. – are precisely the people least in a position to risk big media’s inevitable legal challenges.
One of the most egregious denials of fair use I’ve seen recently was Fox News’ assault on a Democratic candidate who used a brief clip of his opponent speaking on a Fox show in a campaign ad. Fox sued to get the ad pulled, and succeeded, claiming that they had the right to deny candidates from using Fox’s footage – this despite the fact that almost all campaign ads use similar footage, and that it should clearly be protected by fair use, and that Fox allows Republican candidates to use their footage all the time. Our court system needs to stop bowing to this kind of nonsense and start reinforcing fair use as a legal doctrine.
Ah clearances. This is what I do for a living. As a union Art Department Coördinator a huge portion of my job is to wrangle the clearance side of the art department (as opposed to costumes in case of your story). It is a pain, and worse so in television where in addition to clearing it through legal at the studio, the network also has to be contacted in case they don’t want to “advertise” whatever product you want to use (like Adobe Photoshop). This kind of thing often careens into the absurd but I see no end in sight, the horizon is thick with the litigious. Yay, progress!
This is honestly something that makes me apoplectic—I’ve been kicking around ideas for some time for a doc on the subject, with a particular focus on how news footage gets censored. One of the basic facts of modern reality is that branded items are ubiquitous—especially for those of us living in cities, you literally can’t look anywhere without seeing something branded. The fact that we’re prevented from accurately representing our reality in our art is a genuine threat to artistic freedom, to the very idea of mimesis. Man. Seriously.
We just wrapped our documentary on the world’s ugliest dog competition (“Worst in Show!” Coming your way soon.…I hope) and we were gobsmacked by all the rights issues we’ve encountered. For instance, one of our characters got to go to a major league baseball game and lead a parade of dogs around the field. For every 30 seconds of footage we use in our film, we owe the team $250. And that’s just for the 1‑year festival distribution rights. Who knows what it is for DVD or on-demand.
Another instance was when a character in our film was on the Today show. 30 seconds of footage from them = $350. If one of the anchors is in the shots at all, another $350. So $700 for 30 seconds. Plus rights to use songs and making sure we absolutely do NOT use any imagery from this one asshole sponsor.…it’s been brutal. Hidden costs indeed.
I often see movies which feature TV shows on monitors (network logos appropriately visible in the lower right corners) and/or TV reporters with said logos on their mikes. So is this “fair use?” Does anyone really pay NBC or CNN to use their logos?
product placement in movies drives me bananas – though i’m a touch more forgiving if it’s a small indie and the imperative to get the movie made is implicit – but to me brands/trademarks should pay the films for the opportunity of inclusion instead of filmmakers taking ridiculous hits like the ones Don Lewis cites above. Glenn’s example illustrates how something as basic as T‑shirt selection can impact the creative intent and result. Maddening.
on a side note: Glenn, you’re in TGE? that’s badass! are you sag?