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A federal court in Texas confirmed last month that the First Amendment protects filmmakers who use the trademarks or service marks of others in the title of a film, as long as the use describes the content of the film and does not indicate that the film is sponsored by or affiliated with the owners of the marks.
It happened in a case in which IDA filed an amicus brief in support of producers who had used the name "Rin Tin Tin," a valuable trademark, in the title of a film about the real Rin Tin Tin. Michael Donaldson, former President of the International Documentary Association (IDA), organized a united coalition of independent film organizations in support of the brief, gaining the assistance of Michael Morales, General Counsel for the IDA, and Susan Cleary, who signed the brief on behalf of the Independent Film & Television Alliance (IFTA). Donaldson is also General Counsel of Film Independent and signed on their behalf.
An amicus brief is written by a non-partisan amicus curiae, or "friend of the court," who offers information on a point of law or some other aspect of the case to assist the court in deciding the matter before it. IDA argued on behalf of First Look Studios, the producers behind the film Finding Rin Tin Tin: The Adventure Continues. IDA told the court that filmmakers should be able to use trademarks in the title of their films if that's the best way to describe the content of the film.
In analyzing the film's use of "Rin Tin Tin," the court held that the use of the name in the title and body of the film constituted a "fair use" because it is not used in a trademark fashion--that is, as an identifier of the source of goods--and therefore was protected by the First Amendment. While the court did not rely on the IDA brief to make its decision, many of the First Amendment principles that the IDA argued in its brief were reflected in the court's 16-page decision.
Rin Tin Tin was a German Shepherd dog who became famous after he starred in several major motion pictures in the 1920s. Rin Tin Tin, Inc., a company focused on maintaining the "Rin Tin Tin" lineage, owns several "Rin Tin Tin" trademarks and came after the creators of Finding Rin Tin Tin, a fictional film based on the real-life story of Rin Tin Tin, after it was released on DVD in 2008.
The court noted that the use of the term "Rin Tin Tin" described the content of the film-- the historical story of the famous dog--rather than as a "source identifier," which would have created an improper insinuation of sponsorship by Rin Tin Tin, Inc., the trademark holder.
The decision looks to be a great boon for filmmakers (especially documentarians) who find themselves in the relatively common situation in which the use of the trademark is really the best way to describe a film. In those situations, filmmakers shouldn't have to worry about overzealous trademark owners trying to shut down free speech.
For the complete Court ruling, click here.
© 2013 International Documentary Association. All Rights Reserved.
A documentary has been made on my life....In 1976 I invented the Jelly Belly jelly bean. The company that made it for me told me in 1980 that they were coming to town to buy me out and were not leaving town without the trademark...We are calling the documentary Candyman but if I had known about this ruling I think we would have put Jelly Belly somewhere in the title. A trailer of the documentary can be viewed at www.candymanfilm.com.........thank you so much for such a great article david klein
So sorry....forgot to tell you that it will be in Slamdance 2010...thank you
It only seems prudent to correct some of the information contained in Mr. Donaldson’s original post.
First, on behalf of the Defendants (First Look Studios) in the case, IDA merely asked the court for Leave (Permission) to file an Amici Curiae Brief on 7-14-09. In an unusual move, IDA did attach a copy of the “Brief” in the request to file the “Brief.” Plaintiff's objected to the Amici Curiae Brief based on information that one of the IDA board members actually represented RIN TIN TIN in the past, a principal in Defendant’s business was Vice Chairman of finance on the Executive Committee of the Independent Film and Television Alliance and Film Independent corporate status with the state of California had expired.
The judge Denied IDA's request to file the Amici Curiae Brief in an order signed and dated 8-28-09.
Second, the complaint as filed by Plaintiffs NEVER objected to use of the trademark in the "Title" of the film. The judge’s ruling last month granting Defendant’s 7-month old Motion for Summary Judgment did not address in any way the original complaint filed by Plaintiff’s. If you read the actual pleadings you will see that for Plaintiff’s the issue of “Fair Use” was Not the basis of the case.
Third, you refer to Rin Tin Tin, Inc. as, “a company focused on maintaining the Rin Tin Tin lineage, owns several Rin Tin Tin trademarks,” which is also incorrect. RIN TIN TIN is a “Living” German Shepherd Dog from the same line of the first RIN TIN TIN and he is owner/breeder is Daphne Hereford who has been involved with the bloodline 52 years, some 10 years longer than Lee Duncan himself.
Fourth, I am a bit confused by your posting in a couple of areas, first you write, “Finding Rin Tin Tin, a fictional film based on the real-life story of Rin Tin Tin,” then you write, “described the content of the film-- the historical story of the famous dog.” Granted Plaintiff’s said the film was “Purported” to be about the “historical story” it clearly was Not. So based on your comments, was the film “fictional” or “historical?”
And finally, I am not sure how this ruling is a “boon” to film makers since it did not set any precedent in Intellectual Property Law and the case had nothing whatsoever to do with Free Speech.
Faithfully Yours,
RIN TIN TIN,
Miss Daphne Hereford
www.RinTinTin.com