C3 Patent and Intellectual Property Law

Dec012009 | Steve O'Donnell

Why Archie drank generic beer

I used to be confused that some TV shows would make up their own prop brands while other shows used real-life products. I assumed it was because of trademark or copyright  licensing issues. It’s actually less interesting.

First, most TV or movie uses of a real product are not going to support a claim of trademark infringement. The touchstone of trademark infringement is likelihood of confusion and that’s simply not going to happen because a character used a branded prop. If I see Frodo Baggins eat Funyuns and drink a 7up I’m not going to think that either company made the movie, although I may question the purity of the goods at the concession stand because I’d be pretty sure there was more than salt in the salt shaker.

Depending on the depiction, there might be an exception for brand tarnishment. That could occur if a brand was used in a manner that would tend to offend people, but a filmmaker would probably have to go out of their way to embarrass a brand before having to worry about a tarnishment claim.

Most routine displays of copyrighted material also won’t be actionable, more substantial displays might be actionable in certain circumstances. For example, as if the horrible abomination of a movie that was Batman Forever needed any more trouble, the studio was sued over filming an architectural work. Batman won. Batman always wins.

No, the reason that sometimes a show uses a real brand and sometimes doesn’t is ad revenue.

In a simpler time, it was thought that by keeping brands out of a show that advertising opportunities would be greater. After all, Miller Lite might not want to buy ads on “All in the Family” if Archie was drinking something better in the episode. Miller, however, probably won’t care if Archie has a couple plain-labeled “beers” during a show.

On the other hand, shows can sell product placement space during the show itself to advertisers, and for a number of years we saw both prop brands and real brands. The choice was likely dictated by whether there was a sponsor willing to pay enough for product placement to offset concerns that it would keep competitors from buying traditional commercials.

Since the debut of DVRs and other ways of avoiding commercial breaks there has been a steady shift towards using more product placement ads. Now the only time prop brands are used are probably when a sponsor couldn’t be found.

We may never again see Archie’s favorite beer outside of reruns.

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