However, legally speaking, filmmakers do have the right to include trademarks in their films – with or without permission. In her article “Camera Shy,” published in Intellectual Property Magazine, Partner Lisa Callif discussed the history of trademarks, as well as the purpose of trademark law and the limitations filmmakers may face when portraying brands.
“If the film does not misrepresent the source of the product and does nothing that would have a negative impact on the value of the trademark, there is no legal prohibition on the use of a trademark in a film,” Lisa said. “However, even if you have the right to use a trademark, you do not have the right to commit trade libel in the name of entertainment.”
Trade libel occurs when a product or service is falsely accused of a negative attribute. For example, a filmmaker can include as many McDonald’s hamburgers as he or she wants in a scene, but if these hamburgers are portrayed as poisonous, that libels the trademark.
Lisa concluded the article by noting that for the most part, trademarks in films do not tarnish or blur their brands – as long as filmmakers are respectful and accurate in their storytelling, they can and should continue depicting brands in their films.