The movie “Flight” opened in the U.S. over the weekend and did suprisingly well, causing Academy Award buzz. The movie is directed by Robert Zemeckis and stars Denzel Washington as a pilot who has, let’s say, more than his share of addictive behaviors. I saw the movie. It was fine, and the crash sequence (spoiler alert) was scary.
As part of the story line, Denzel drinks alcohol products- a lot of them-constantly, to great excess and on an indiscriminate basis. He’s a raging drunk, folks. Now, to convey the verisimilitude of his condition, Denzel is variously seen swilling Budweiser, Smirnoff, Rolling Rock, Grey Goose, Gordon’s. You get the picture; it’s anything he can get his hands on. He also has a hankering for cocaine, but since cocaine isn’t marketed under brands, that has nothing to do with what I am writing about.
Oh clever reader, you are way ahead of me aren’t you?In a letter to production company Image Movers and Paramount, Robert McCarthy, the vice president of Budweiser, said Anheuser-Busch had “no knowledge of the use or portrayal of Budweiser” before or during the film’s production and were not contacted by the studio. “We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving. It is disappointing that Image Movers, the production company, and Paramount chose to use one of our brands in this manner,” McCarthy said in the letter, which was emailed to Reuters on Monday.
Hmm. Sounds like Mr. McCarthy didn’t run it too far past his IP people. Of course, Budweiser is accustomed to paying people for product placement. A-B isn’t too keen on a filmmaker putting its precious cargo in the hands of Denzel Washington scenery-chewing his way through a series of drunken binges.
So, what’s the bottom line as far as trademark law goes? Your mileage may vary, but Zemeckis and Paramount are likely on firm ground in using trademarked goods without permission in the context of the story about an alcoholic. It’s sometimes called fair use of trademarks. Other courts refer to it as nominative use. Still others see nominative use as a subcategory of fair use, which I think is the right way of looking at it. Whilst these doctrines can sometimes be a slippery slope, they generally allow work of fiction to identify products with their brand when (1) the brand was not readily identifiable without using the mark; (2) the artist used only so much of the mark as reasonably necessary to identify it; and (3) there was no suggestion of endorsement or sponsorship by the group.
A good example of this is the New Kids On The Block case from 1992. (side note: I bet NKOB wishes that they still had the money sunk into this vain act of litigation)
Most likely, a court would find that a fictional depiction of an abuser of branded products is entitled to show the brands as part of the piece. They don’t focus on the brands or the labels, and they are only seen in passing as part of D. Washington’s struggles with Demon Rum.
Budweiser might also feel it has a claim for trademark dilution, since the marks are used in connection with un-social (to put it mildly) behavior. Likely, that is a road they will not go down, since beer is associated with un-social behavior on a regular basis.