Team identities in movies

[Waffles]

I had always been under the impression that directors/producers/whoever is in charge of that kind of thing needed permission and/or cooperation from leagues and teams to use their logos and identities in their productions, hence the parade of fake team names in sports movies that don't present the rosiest picture of sports, leagues and athletes. I saw the

and I began to wonder what in the world the Giants were thinking getting involved with a movie that shows one of their star players involved in a violent nightclub incident.

Then I read this interview with Oswalt and director Robert Siegel on Deadspin and saw this:

Sarah:So you didn't need permission to use the team name?

Robert: No, we didn't need permission. The first amendment affords us certain rights that are rarely executed in Hollywood. They usually opt not to exercise those rights and make movies about the New York Wizards, you know? As a sports fan, fake teams take me out of the reality the movie. The teams are a part of our culture. They have significance and a resonance. Whenever I see a movie with a fake sports teams, I just don't get it.

Full interview here

So I have two questions...why can't teams and leagues protect their brands? And conversely, if it's this easy to use team logos and identities in movies and presumably Robert Siegel probably isn't the first person to figure this out, why do we have tons of movies about the Miami Sharks and North Dallas Bulls?

[Firefly]

That begs the question as to why the movie isn't called 'Giant Fan'? 'Big Fan' sounds awkward.

[BallWonk]

So I have two questions...why can't teams and leagues protect their brands? And conversely, if it's this easy to use team logos and identities in movies and presumably Robert Siegel probably isn't the first person to figure this out, why do we have tons of movies about the Miami Sharks and North Dallas Bulls?

Teams can and do protect their brands. But the right to protect a brand is an entirely commercial right. You can't stop me from saying whatever I want to say about your brand; you can only stop me from engaging in commercial activity in which I profit from your brand or negatively affect the value of your brand. (Very broadly speaking, of course.) Siegel is arguing that his movie amounts to speech about the Giants, which is protected from interference under the First Amendment, rather than a commercial venture that exploits the Giants brand, which is not protected and exposes him to quite severe potential civil penalties, up to and including the preemptive destruction of his film and all materials related to it.

Why then do we see movies about the New York Mammoths rather than the Yankees? Because the only way to be sure that your movie's use of a real team's name is protected speech rather than a prosecutable tort is to be sued and win. Since movie producers are in the business of making money, not in the business of defending personal liberty, it's a no-brainer to opt for a fake team name when your attorney comes to you and says that you'll probably have the law on your side if you use a real team name and the real team opts to sue and then you choose to fight the suit for several years before your movie can be released.

As long as he promotes his film carefully -- for example, using the word "Big" in the title rather than "Giant" -- Siegel is probably right. After all, novelists use real company names -- including sports teams -- all the time as plot elements in their stories, and nobody questions their First Amendment right to do so. But because movies are so much higher profile than novels, Siegel may be right in the same way as the dead man resting under the famous Irish gravestone that reads,

Here lies the body of Mike O'Day

Who died defending his right of way

His right was sure, his will was strong

But he's just as dead as if he'd been wrong

[oddball]

If you're replicating a historical moment, you wouldn't create a movie with fake names. If you're creating a movie from scratch, I'd create new and unique names only because then I could structure the movie and the rules as I would see them and create my own history with the league. It's just more creative, the problem is, most people writing these movies don't go that deep, so you have no feeling of a team one way or the other. The other reason most movies don't use real teams is because of cost. If you're a low budget film, to use let's say the Dallas Cowboys and their identity will cost you. Any professional franchise can keep someone legal from using anything related to that team. It's called trademark laws. The look of a team is a trademark and professional franchise have every right to protect their image, so then it costs the filmmaker a lot of money to use images or the look of a team. Can you slap a New York Giants banner in the background, sure, but I'm pretty sure it will cost something. The quote about the First Amendment is laughable. This idiot obviously has no clue about the First Amendment and what it's about. If he's talking freedom of speech, then what the Constitution is talking about is the ability to criticize the government without the government coming down on you. It has nothing to do with the rights of a franchise/league to to protect its image. If this film makes money, then he will pay the Giants and the NFL a nice amount of money, and they will get it. Whether you know it or not. To use a trademark image, you have to pay for it and all professional teams have their logos trademarked and are protected under trademark laws. He cansay anything he wants in the movie so long as it's not slanderous and a complete lie and even use a professional franchise's name, but can he just go ahead and use the image of a team? Nope. It's not a Freedom of Speech issue, it's a trademark issue. With a little education this filmmaker might not look like and sound like such an idiot.

[slapshot]

What about Ace Ventura? It featured the Miami Dolphins' kicker as a manicial transgendered attempted murderer. didn't see Miami having any problem with the movie.

[DEAD!]

What about Ace Ventura? It featured the Miami Dolphins' kicker as a manicial transgendered attempted murderer. didn't see Miami having any problem with the movie.

Well, Ace Ventura did have Dan Marino, right?

[slapshot]

Dan Marino being the attempted murder victim in question

[BBTV]

I thought the first amendment meant that you can speak freely about the government, without fear of prosecution. I'm not sure how it relates here, nor how it can be used as a defense when a company fires an employee who speaks out publicly against them.

[Top Shelf]

Dan Marino being the attempted murder victim in question

Laces out!

[BRice16]

What about Ace Ventura? It featured the Miami Dolphins' kicker as a manicial transgendered attempted murderer. didn't see Miami having any problem with the movie.

The NFL, for some reason, not only endorsed the movie, but encouraged the Dolphins to help in whatever way they could.

[Delux247]

I guess this is a commercial, but in a recent Buffalo Wild Wings commercial a basketball game comes on one of the bars' TVs. Just by the stain of the court I could tell they shot it at the Target Center in Minneapolis. I then looked up BWW & they're headquartered in Minnesota.

[oddball]

I thought the first amendment meant that you can speak freely about the government, without fear of prosecution. I'm not sure how it relates here, nor how it can be used as a defense when a company fires an employee who speaks out publicly against them.

It can be used against an employee that speaks out publicly against a company. If he says something that he knows is false and says it, that is slander. Libel would be if he wrote/published something something that he knew was a complete lie. Those are covered under the Freedom of Speech part or even Freedom of Press.

[BallWonk]

I thought the first amendment meant that you can speak freely about the government, without fear of prosecution. I'm not sure how it relates here, nor how it can be used as a defense when a company fires an employee who speaks out publicly against them.

The First Amendment reads, "Congress shall make no law ... abridging the freedom of speech, or of the press." Simply put, the government may not outlaw speech or silence the press. So you can say pretty much anything you like about me and the government will not help me do anything to stop you from doing it. If I bring a complaint to the police about you insulting me or making an unauthorized movie about me, the police will say there's nothing they can do. If I bring a suit to the courts to try to stop you from insulting me or making an unauthorized movie about me, the courts will (in nearly all instances) say there's nothing they can do. The First Amendment doesn't say that you can speak freely about the government; it says you may speak freely. About anything.

But note the first clause of the First Amendment: "Congress shall make no law." The First Amendment, like the rest of the Constitution, governs what the government itself may or may not do. It does not govern relations among citizens that do not involve the government. So if you work for me and then you insult me, I can fire your ass, because the First Amendment doesn't limit what I can or cannot do.

How the First Amendment relates here is the mechanism the Giants would use to try to do anything about a movie depicting the team without the team's authorization. Since the director doesn't work for the Giants, the Giants cannot fire him. In order to get at the director, therefore, the Giants would have to file a lawsuit -- that is, ask the government to do something to help them punish the director for something he said. Which in most cases the government cannot do, because the First Amendment bars the government from doing that sort of thing. There are exceptions, of course, some based on obviously BS but entirely sensible "interpretations" of the unambiguous text of the First Amendment, such as libel or slander or fighting words, and some based on other sections of the Constitution itself, such as Article I, Section 8, which reads, "Congress shall have the power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," which is where Congress draws its power to make laws protecting private trademarks.

So the Giants would have to use a trademark suit to get around the First Amendment and go after the director. Legally, that's probably not a great idea, since the director has a reasonable free speech claim here, and federal courts tend to err on the side of reasonable free speech claims even in trademark cases. But more importantly, it's probably a very bad idea for the Giants to sue from a public relations point of view. Because 1. Nobody likes a corporate bully; 2. Suing someone because you don't like what they say about you makes you look like a weak little crybaby, which would do more harm to a football team's brand value than anything a movie could conceivably say about you; and 3. Even popular movies go away in a few weeks, whereas a lawsuit will keep the issue in the news for years.

[Saintsfan]

Its interesting. But take Every Given Sunday as a film. Would the storyline be as believable to a sports fan if it was about the Miami Dolphins but with loads of fictional players and coaches thrown in? Its a difficult balance I guess. I always thought the West Wing, as a TV show that casually mixed real life history and fictional present and history, struggled with continuity a bit because of its mixing, but also struggled to be as life like as you might want a TV show to be because it was so obvious that these were fictional characters.

So when something as familiar to most people as sports are fictionalized, I personally think its probably better to complete a whole new universe, with fictional teams as well as players.

Also if you chose to use real sports teams, we would have a new thread on the boards every time picking holes in the continuity of the uniforms and identities. I suppose that might be fun, but you just know it would spoil the film!

[BlueSky]

I thought the first amendment meant that you can speak freely about the government, without fear of prosecution. I'm not sure how it relates here, nor how it can be used as a defense when a company fires an employee who speaks out publicly against them.

The First Amendment reads, "Congress shall make no law ... abridging the freedom of speech, or of the press." Simply put, the government may not outlaw speech or silence the press. So you can say pretty much anything you like about me and the government will not help me do anything to stop you from doing it. If I bring a complaint to the police about you insulting me or making an unauthorized movie about me, the police will say there's nothing they can do. If I bring a suit to the courts to try to stop you from insulting me or making an unauthorized movie about me, the courts will (in nearly all instances) say there's nothing they can do. The First Amendment doesn't say that you can speak freely about the government; it says you may speak freely. About anything.

I think the bolded sentence needs clarification. For one thing, the government will help you if the speaker officially makes false allegations (i.e. a false police report). Pretty much anything else is not a criminal matter, which is perhaps your point, that there will not be prosecution. But you could still be liable in civil court. So you can say anything you want about me as long as it's either true or an opinion that doesn't involve statements of fact or false allegations. You can be sued for lies or false allegations.

As for fake teams, it is indeed a tough balance. As someone said, you can use real teams fairly easily for depicting historical events as long as they're reasonably accurate. But there's no way Playmakers ever sees the light of day with real NFL team identities. Then there are films like Everybody's All-American (highly recommended btw) that use NFL teams (Redskins, Broncos, and others seen in game scenes) but has "The Grey Ghost" (Dennis Quaid's character) attending a college that uses purple and gold, plays in Tiger Stadium (the real one), and has a tiger in a cage but is inexplicably called simply Louisiana University or some such when it's painfully obvious it's LSU (and they're playing Georgia in the Sugar Bowl). That one I don't get.

And doesn't it figure that even Moses couldn't lead the Saints to the Promised Land? Here's Charlton Heston in Billy Kilmer's uni playing Saints QB Ron Catlan in the '69 bomb Number One.

[John in KY]

I thought the first amendment meant that you can speak freely about the government, without fear of prosecution. I'm not sure how it relates here, nor how it can be used as a defense when a company fires an employee who speaks out publicly against them.

The First Amendment reads, "Congress shall make no law ... abridging the freedom of speech, or of the press." Simply put, the government may not outlaw speech or silence the press. So you can say pretty much anything you like about me and the government will not help me do anything to stop you from doing it. If I bring a complaint to the police about you insulting me or making an unauthorized movie about me, the police will say there's nothing they can do. If I bring a suit to the courts to try to stop you from insulting me or making an unauthorized movie about me, the courts will (in nearly all instances) say there's nothing they can do. The First Amendment doesn't say that you can speak freely about the government; it says you may speak freely. About anything.

But note the first clause of the First Amendment: "Congress shall make no law." The First Amendment, like the rest of the Constitution, governs what the government itself may or may not do. It does not govern relations among citizens that do not involve the government. So if you work for me and then you insult me, I can fire your ass, because the First Amendment doesn't limit what I can or cannot do.

How the First Amendment relates here is the mechanism the Giants would use to try to do anything about a movie depicting the team without the team's authorization. Since the director doesn't work for the Giants, the Giants cannot fire him. In order to get at the director, therefore, the Giants would have to file a lawsuit -- that is, ask the government to do something to help them punish the director for something he said. Which in most cases the government cannot do, because the First Amendment bars the government from doing that sort of thing. There are exceptions, of course, some based on obviously BS but entirely sensible "interpretations" of the unambiguous text of the First Amendment, such as libel or slander or fighting words, and some based on other sections of the Constitution itself, such as Article I, Section 8, which reads, "Congress shall have the power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," which is where Congress draws its power to make laws protecting private trademarks.

So the Giants would have to use a trademark suit to get around the First Amendment and go after the director. Legally, that's probably not a great idea, since the director has a reasonable free speech claim here, and federal courts tend to err on the side of reasonable free speech claims even in trademark cases. But more importantly, it's probably a very bad idea for the Giants to sue from a public relations point of view. Because 1. Nobody likes a corporate bully; 2. Suing someone because you don't like what they say about you makes you look like a weak little crybaby, which would do more harm to a football team's brand value than anything a movie could conceivably say about you; and 3. Even popular movies go away in a few weeks, whereas a lawsuit will keep the issue in the news for years.

Pretty good analysis but the Trademark litigation is where it lives - and the NFL and their teams will defend those trademarks vigorously. If you want to use their images, designs, etc. then you had better get permission and pay them for it. In order to retain the trademark you have to defend it against every usage, otherwise you lose your exclusive rights to your design and it falls into the public domain.

My other hobby is music; I've played guitar off and on for almost 30 years now. Even if you aren't a player, I'm sure you saw images of the Gibson Les Paul guitar when Les died a couple of weeks ago. In the mid-1980s the Gibson Guitar Company trademarked the Les Paul shape, knob placement, and other "trade dress" items. No one challenged it because no one cared about them (everyone wanted Strat-type guitars with wild paint schemes and locking tremolos like Eddie Van Halen). Then Guns & Roses hit and when everyone wanted Les Pauls again they had to go to Gibson since other manufacturers couldn't make an exact copy. Gibson vigorously defends these trademarks and no one makes a legal identical copy of the Les Paul (the irony being Slash's yellow Les Paul used on "Appetite for Destruction" was an illegal hand-made copy done by a guy in LA, not a Gibson).

Fender took a different tactic - they trademarked the headstock shapes of the Stratocaster and Telecaster, but they never trademarked the body shape. Once the patent on the design ran out anyone could make a Strat body but not duplicate the headstock. Fender recently tried to go back and retroactively get trademarks on the body shapes, but all the other companies who make guitars in that shape/style contested the trademark filing. Fender lost because the other companies proved Fender had never attempted to defend their design against imitators.

To keep the trademark you have to defend it even if it makes you look bad to part of the public - otherwise your trademark is worthless.

[Sport]

I actually watched the preview and it's not a game by game story of a season like "Any Given Sunday" or "The Replacements". I also didn't see any scenes of simulated game action like "Invincible". This is about a fan who has a confrontation with a player. They had to make the player fictional because no real player would play themselves beating the snot out of a fan and no player would be a good enough actor. In this case, I'd say that the realism would be lost if Patton Oswalt's character were cheering for the "New Jersey Rhinos". Also from what I can see, the New York Giants are just the team the main character likes, the movie centers around this dispute between the player, the fan, and how the fan's lawsuit of said player affects his favorite team's chances.

It looks like a commentary on how crazy fanaticism can get. They tried to do it with Robert Deniro and Wesley Snipes in the "The Fan", but that went over the top. This looks really good and more real. I applaud them for going with the real franchise even if their explanation of why they can use it without consequence may be a little off.

[dgthree]

They just use the Giants as a base for the team, the story is about a fake scenario and a fake player.

[BallWonk]

To keep the trademark you have to defend it even if it makes you look bad to part of the public - otherwise your trademark is worthless.

While this is true, and changes in case law in the 1990s led to a number of basically tragic instances of good corporate citizens being punished with the loss of trademarks for not being suit-happy hosers, it is not that case that a trademark holder is obligated to sue the pants off of everyone who tiptoes up to their trademarks every single time. If the Giants take a pass on stopping this movie from using their trademark, no maker of pirated Giants jerseys is going to be able to point to the lack of action to defend their wrongdoing when NFL properties sues them for trademark violation. By allowing an artist to depict your team in a work of fiction, you do not risk letting your trademarks fall into the public domain.

[Gothamite]

They just use the Giants as a base for the team, the story is about a fake scenario and a fake player.

Doesn't matter, though, if they use any Giants trademarks.

The director's claim is interesting but seems very shaky. I'd almost like to see the Giants or League challenge it, just to see if it can hold water.

If they don't challenge it, seems to me to be open season in films and television. How can they justify coming after another film which uses their league as a backdrop?