Showing branded/copyrighted/trademarked props/clothing/background in porn. Legal? - GoFuckYourself.com - Adult Webmaster Forum

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mkx

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Showing branded/copyrighted/trademarked props/clothing/background in porn. Legal?

06-16-2016, 02:25 PM

Let's shoot for the stars with this question and consider the following.

Your shooting porn for a mainstream website and have disney bed sheets and the girl is wearing hello kitty pajama's and the room has robocop wallpaper with a justin bieber poster. She is degraded in every way possible. There is no focus'sing or zooming in on any of these props, she and he remain the focus of the film.

Legal or not legal? If it's grey area is it worth the risk for a mainstream site that will definitely grab the attention of the trademark owners? Would the risk simply be a civil lawsuit and/or can they have a judge block the porn from being marketed/sold?
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Barry-xlovecam

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#2

06-16-2016, 02:32 PM

https://asmp.org/articles/trademark-...l#.V2Mn7O2VtcY

Draw your own conclusions -- seems a bit ''murky'' to me.

https://www.google.com/search?q=trademarked+props
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mkx

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#3

06-16-2016, 03:18 PM

The research I did applied more to mainstream and mentioned as long as your not bashing the product and its just a background prop you should be find, not sure if porn is considered bashing (no pun intended)
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#4

06-16-2016, 06:34 PM

go for it bro! maybe use university symbol or radio play music

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#5

06-16-2016, 07:01 PM

it doesn't really matter if it's legal or not...

they won't like it, so some fancy law firm out of Toronto will send you a threatening letter, so you will take down the content...

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#6

06-16-2016, 07:15 PM

What does, "shooting porn for a mainstream website" even mean???
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#7

06-16-2016, 08:03 PM

you should be good to go, shouldn't be any issues.

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Paul Markham

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#8

06-16-2016, 09:02 PM

They can sue you. It's not about winning or losing. It's about they bankrupt you in court by spending what to them is insignificant and to you. All you have.

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#9

06-17-2016, 12:23 AM

Kudos to Paul for a good answer

Legally you can use any product for its intended purpose. So long as the product isn't sound or video. So if she were watching E. T. on her TV it gets murky. Or listening to Justin Beiber.

But if it's a bedspread it is being used for its intended purpose.

That being said, they can request that you not show their products. But that is civil, not criminal.

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Barry-xlovecam

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#10

06-17-2016, 12:36 AM

I am not offering any legal advice on the topic; however ...

There is fair use
https://books.google.com/books?id=-Y...%20use&f=false

Trademark infringement with the intent of financial gain is an unlawful civil tort usually.

If an actor drives a Ford to a movie scene you film you are not infringing. If you use a likeness of the Ford logo that says PORN instead of FORD I would expect you to get a C&D letter as soon as they saw it and further legal action if you did not stop using that logo immediately.
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#11

06-17-2016, 02:11 AM

The only trademarks you see in Hollywood film and tv are product placements. There is a reason for it. Paul Plus 1
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mkx

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#12

06-17-2016, 03:58 PM

I thought the reason for product placements are to make money, thats why they don't show other brands because they don't do freebies, not sure if its a legality thing.

By mainstream porn site I mean something like bangbros or a big one, bad choice of words.

Still not getting a clear answer though. If suing and draining my money is all they can do that is fine as long as they dont win. Plus if I win they would likely have to pay my legal fees anyways. I wonder if there is any case law on this
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#13

06-17-2016, 05:45 PM

https://www.google.com/search?client...+trademark+law

Start reading or hire an Attorney that deals with IP and Trademark laws

It's cheaper to consult with an Attorney with case law research in hand -- but do consult with an Attorney because lawsuits can be avoided if you handle the grey-areas correctly by setting up a strong defense.
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#14

06-17-2016, 09:57 PM

Unless you have deep pockets and want to waste money on expensive lawyers. Don't do it.

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Jigster715

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#15

06-18-2016, 02:09 AM

Originally posted by mkx

I thought the reason for product placements are to make money, thats why they don't show other brands because they don't do freebies, not sure if its a legality thing.

By mainstream porn site I mean something like bangbros or a big one, bad choice of words.

Still not getting a clear answer though. If suing and draining my money is all they can do that is fine as long as they dont win. Plus if I win they would likely have to pay my legal fees anyways. I wonder if there is any case law on this

If you think Disney wants Minnie in a porno. Trademarks are left out of tv and film, unless a product placement because the trademark owner can decide they do not like your use of it. Plus, it devalues placements cause as you can imagine Coke, BK, KFC etc pay big money. I've been in the warehouse at Paramount where they keep all their swag from PP's.

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There is an interesting case going on right now between MPAA and the on line streaming service vidangel.com - I don't think it will end well for vidangel.
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#16

06-18-2016, 05:06 AM

https://www.videomaker.com/article/c...our-production

Contributing editor Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards. Michael Bashover is a recent graduate of Binghamton University, where he received a bachelor's degree in English Literature.

Louis Vuitton v. Warner Bros.(S.D.N.Y. June 15, 2012)

Unpacking the Louis Vuitton v. Warner Brothers Decision
By Andy Bart and Gianni Servodidio ? March 8, 2013

On June 15, 2012, Judge Andrew Carter of the Southern District of New York granted the motion of defendant Warner Brothers Entertainment Inc. to dismiss a trademark complaint filed against it by the luxury-goods maker Louis Vuitton based on the appearance of an allegedly counterfeit Vuitton bag in the film The Hangover: Part II. The decision in Louis Vuitton Malletier S.A. v. Warner Brothers Entertainment, Inc., is a stark example of the increasing judicial skepticism toward efforts by trademark owners to use the rubric of the Lanham Act and related state laws to exercise control over the appearance of their branded products in expressive visual works such as films, television shows, or video games.

Building on established precedent, the decision rejected the notion that the First Amendment rights of content creators can be trumped merely because a ?prop? used to convey an artistically relevant message is alleged to be a knockoff product. Moreover, the decision clarified that a trademark plaintiff must satisfy a heightened pleading standard for ?confusion? in cases involving expressive works in order to overcome a First Amendment defense. As discussed below, resolution of these issues by the court helps to clarify and define the line between an infringing use of a mark intended to confuse or mislead consumers and the use of a mark that falls within the constitutionally protected right of content creators to engage in free and open expression by portraying the ?real world? to their audience.

Unpacking the Louis Vuitton v. Warner Brothers Decision | Intellectual Property Litigation | ABA Section of Litigation

download and discuss this PDF put out by an IP law firm (see p.26) There is a lot of Internet related decisions in it and relevant topics with citations. http://www.arnoldporter.com/~/media/...e-fair-use.pdf

*the above information is not legal advice it is only offered in conversational context.
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#17

06-18-2016, 05:22 PM

I am still confused. From what I am gathering, it is legal but they will likely sue and drain your funds in court. I know its risky but if trademark/copyright law protect it then I don't see why not. Is there anything I should avoid if I were to film a girl being fucked and degraded on disney bed sheets?
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#18

06-18-2016, 05:45 PM

Much misinformation and disinformation here... typical for GFY. I've shot probably tens of thousands of images that had trademarks on them with no problems.
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#19

06-18-2016, 05:52 PM

Originally posted by mkx

I am still confused. From what I am gathering, it is legal but they will likely sue and drain your funds in court. I know its risky but if trademark/copyright law protect it then I don't see why not. Is there anything I should avoid if I were to film a girl being fucked and degraded on disney bed sheets?

Disney's lawyers ... now get your wallet out and ask a IP lawyer that can estimate how much it will cost to call their bluff. That is how business serious works -- risk assessments. Lawyer up and CYA or just avoid the risk. Or: How does using the risky behavior effect my bottom line profit?

If you want a guarantee buy a kitchen appliance.

I think that the big problem you have with 'it' -- is what your "fair use" may add to the value of your product -- and you want to be sure of getting away with 'it' without legal expenses before or after the fact. Lawyers are deal breakers and not deal makers -- their fiduciary duty to their client is to advise then of the downside of an action

Incorporate the production company and isolate it from your other assets. That is your first step -- and maintain the corporate veil properly, so if it is ever challenged, it will stand up to scrutiny. --The Art of the Fucky Fuck ?
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#20

06-18-2016, 06:05 PM

Originally posted by marcop

Much misinformation and disinformation here... typical for GFY. I've shot probably tens of thousands of images that had trademarks on them with no problems.

The lawyer's opinion article says that is what the ruling said -- so it's on his ass citing the Court and not mine;

is a stark example of the increasing judicial skepticism toward efforts by trademark owners to use the rubric of the Lanham Act and related state laws to exercise control over the appearance of their branded products in expressive visual works such as films, television shows, or video games.

However, you could get sued or criminally charged with practicing law without a license -- my partner did 35 years ago in LA Maybe not -- you just say that you have never been sued LOL

So, you have to CYA and put things in a bulletproof context -- it's a risk assessment -- what is there to gain? The PDF is interesting though. There are a lot of IT questions answered so it was worth the searching -- I saved the PDF as relevant with citations to refer to -- I did get something of value out of this.
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#21

06-18-2016, 06:26 PM

RK had great success with Lady Gaga, I think it was. Go for it.
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#22

06-18-2016, 09:26 PM

Originally posted by mkx

I am still confused. From what I am gathering, it is legal but they will likely sue and drain your funds in court.

There you have it.

Can you afford to go against, Disney in the courts? That's the only questions to ask yourself. And should you win, will the judge award costs to you?

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#23

06-18-2016, 09:41 PM

Originally posted by Barry-xlovecam

The lawyer's opinion article says that is what the ruling said -- so it's on his ass citing the Court and not mine;
However, you could get sued or criminally charged with practicing law without a license -- my partner did 35 years ago in LA Maybe not -- you just say that you have never been sued LOL

So, you have to CYA and put things in a bulletproof context -- it's a risk assessment -- what is there to gain? The PDF is interesting though. There are a lot of IT questions answered so it was worth the searching -- I saved the PDF as relevant with citations to refer to -- I did get something of value out of this.

It pays lawyers to frighten you about the consequences of your actions--even if there's little chance of the shit hitting the fan. My own lawyer counseled me many years ago on risk assessment and I took his advice. For one thing, most of the companies I shoot for demand a Work for Hire agreement, so they own the copyrights on the images so what the fuck do I care? As for the others, if Louis Vuitton or similar sued me I'd probably just welcome the free advertising.
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#24

06-18-2016, 11:45 PM

Originally posted by Barry-xlovecam

Incorporate the production company and isolate it from your other assets. That is your first step -- and maintain the corporate veil properly, so if it is ever challenged, it will stand up to scrutiny. --The Art of the Fucky Fuck ™

The problem with incorporating the production company is that when they do sue I would be literally required to obtain an attorney for their frivolous lawsuit which will drain all the corporations profits. If I release it as a sole proprietor, then I will be able to represent myself without charging myself $300-$500 an hour.

I guess that would be my next concern. I don't have any personal assets but I would want the profits of the production to be protected and not drained by attorney fees so it's either sole proprietorship or corporation.
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#25

06-18-2016, 11:54 PM

Originally posted by mkx

The problem with incorporating the production company is that when they do sue I would be literally required to obtain an attorney for their frivolous lawsuit which will drain all the corporations profits. If I release it as a sole proprietor, then I will be able to represent myself without charging myself $300-$500 an hour.

I guess that would be my next concern. I don't have any personal assets but I would want the profits of the production to be protected and not drained by attorney fees so it's either sole proprietorship or corporation.

Actually, even if I protected myself from hefty legal fees by not producing under a corporation, I am assuming Disney will also go after distributors, affiliates, etc causing them not to want to market the video. This sounds to me like worse than me or my company being at risk since although I may be prepared to fight the battle, affiliates will throw in the towel with a simple Cease and Desist.

I guess that analogy answered my own question that it is not worth the risk given that I would not be the only one distributing / marketing it.
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#26

06-19-2016, 02:19 AM

Originally posted by Jigster715

The only trademarks you see in Hollywood film and tv are product placements. There is a reason for it. Paul Plus 1

Yup

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