How did they get away with using all those companies in “Ralph Breaks The Internet”? (May contain SPOILERS!) In today’s session we discuss Fair Use.
Note: we are NOT lawyers. Consult any actual attorney before you make your multi-million dollar, pop-culture-themed movie.
Hollywood Reporter: Making of “Ralph Breaks the Internet: How Disney Turned eBay and Amazon Into Cartoons
Gamespot.com: “31 Things We Learned About Ralph Breaks the Internet”
Stanford: Four Factors to Consider in Fair Use
RightsofWriters.com: Can I Mentino Brand Name Products In My Fiction
[Editor: Some helpful info from Gabrielsburg on Reddit (https://www.reddit.com/user/gabrielsburg)]
Not a whole lot of substance in this and I think it misses a few points that are important to understanding some of the notions around fair use and how trademarks and copyright are different.
1. I roll my eyes every time I see some idiot has attached some fair use blurb on a clip they’ve posted to YouTube because Fair Use is an affirmative defense, it’s not automatic and doesn’t come into play until you’ve been sued. You can add that Fair Use bit as much as you want and it doesn’t mean shit.
2. I think it would have been valuable to make the point when talking about Kleenex and Google, they protect against their brands becoming general use words because that genericizing of the trademark causes them to lose the trademark — this is exactly what happened with aspirin, escalator, trampoline and heroin, among others.
3. Copyright holders can pick and choose when and which infringements to litigate, but trademark holders can’t. They have to actively protect a trademark against dilution and genericizing, and must be actively using the trademark, otherwise they lose the rights to it.