Morning Glory

This weekend, I went to margaritas with the fashion department before heading home to bake cookies and decorate my miniature Christmas tree. Did I say bake cookies? I meant eat them. Oops. My mistake. The thing about grabbing drinks with the fashion department is that even while wearing two necklaces and wedge boots, I still manage to be the most underdressed person there. You know what could help? A choose-your-own-adventure-outfit video from Madewell. After twelve years of wearing plaid kilts and knee socks, I'm not good at dressing myself in new and imaginative ways. If I do in fact find a creative combination, I'll wear it once a week until I do my dry-cleaning. So tomorrow, I'm going to let this cute video decide. Where did your choices take you? (Mine were: Tea, geeky chic, handbags, dress down, confetti).

Can I Expose Exxon in My Documentary?

Dear Rich: I am making an independent film about life on our ranch with ExxonMobil. I had a blog for a few years and youtube page. For three years, I filmed lots of Exxon activities on the land that is owned by my husband. About a six months into my blog writing, ExxonMobil sued me for tortious interference saying "my shenanigans raised their operating costs" because they had increased inspections from regulators. So, I am aware of how they can be big bullies with their lawyers. However, when I was not intimidated, they just backed off and I kept filming and writing. I never got any releases from Exxon workers or subcontractors but I have the permission of the land owner (my family). Of course, everything has Exxon stickers, etc. I even interview the people working there. Exxon's partners (El Paso Corp) sued me for tortious interference and exposing trade secrets on my blog. But, we made an agreed judgement where those claims were dismissed with prejudice. I am planning to make my movie free and put it on iTunes and the Internet. I have this idea that free speech is more protected than commercial speech. But, I don't know if that is true and where I got this idea. I also think that people are less likely to sue me if they think there is no money in sales to fight over. What do you think? We admire anyone who has something to say and doesn't let other people stop them from saying it. But we're also protective of anyone who calls themselves a Dear Rich reader, so we'll provide the legal rules with a caveat that you're already probably aware of --  free speech will protect your rights, but proving you have those rights may prove to be a burden. There is some recent good news for you. Last month, Texas passed its version of an anti-SLAPP law (as explained here). Anti-Slapp laws even the playing field by stopping lawsuits that are used to censor speech. That law could prove helpful if the claims brought against you are trivial or have no legal basis. Anyway, here are the legal rules.

• Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
• Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
• Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
• Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret. 
• Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
• Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
• Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film. 

Breakfast Interrupted

BSS | Breakfast Interrupted from Bruton Stroube Studios on Vimeo.

Breakfast was already my favorite meal of the day ... and then this happened.

Can I use fashion trademark in movie?

Dear Rich: Please if you could let me know about using the Barney's name (Barney's New York) in feature film and presenting some space as its office. The lead actress gets an offer to work for Barney's from one of the managers, plot goes into different direction, and from her actions we conclude that she doesn't consider Barney's offer any more. So if it's part of the plot at all, it doesn't have a strong point. I would appreciate if you could respond to my dilemma. Short Answer Dept. You're probably fine with your planned use (although you should ditch the apostrophe as it implies you are dealing with purple dinosaurs not the store's apostrophe-free trademark). As we've said before, filmmakers and screenwriters have a First Amendment right to talk about and reproduce trademarks in films. However, such uses may trigger a lawsuit if a displeased trademark owner believes that your film is confusing consumers--that is, filmgoers  mistakenly believe that Barneys New York endorses or is in some way associated with your film.
Creating the fake Barneys office. We believe your re-creation of the Barneys office is permitted under First Amendment grounds but that doesn't mean that you won't get hassled. As you know from reading our blog, there's a difference between being legally correct, and surviving the lawsuit that proves you're legally correct. Re-creating the office may trigger a wider range of objections -- for example, if you accidentally use a character with a similar name as a real Barneys employee in an unflattering manner, or if the film defames management or by implying that working conditions at Barneys violate the law in some way. An apprehension of a trademark's owner wrath can even kill a big-time Hollywood production. As our previous post pointed out, another  problem in situations like this is that if your film becomes a success, your distributors and festival producers may demand releases for these uses. Hopefully, if you're successful enough to obtain distribution, you'll also be able to afford the legal power necessary to acquire the necessary rights.

Does travel photographer need property release?

Dear Rich: I have an opportunity to do some video work for a travel related website distributor. They want video tours of certain cities, highlighting the attractions. I was under the impression that I needed property releases from any property I depict in a video or photograph. Now I'm not sure. The video would have scenes of attractions such as museums, theaters, ball parks, amusement parks, bars, restaurants, casinos, etc. I will limit myself to shooting from public property such as sidewalks. I may also have people in these shots. Where would I stand? The client expects me to sign a contract saying I am responsible for obtaining all releases needed. In the U.S., if you're photographing from public property, usually no release is needed. There are two exceptions: structures such as statues and memorials that qualify as copyrightable works; and buildings that have achieved trademark status. You may not need to worry about either of these exceptions as we discussed in a previous post. If you're creating videos outside the U.S., you should review a principle known as Panoramafreiheit. As for the people in your videos, you're generally fine photographing people in public places as they have no reasonable expectation of privacy. Problems will develop if the website deliberately either: (1) makes these people appear in a bad light -- for example, the travel video has a section entitled "The Amsterdam Red Light District" and shows two tourists who do not work there; or (2) you use screenshots of individuals in a manner that makes it seem as if they are promoting the site -- for example, the website creates banner ads using screenshots of individuals seen in your videos.
Property Release. If you need to obtain a release, here's a standard property release (also known as a 'location release') from our book, Getting Permission. You can use this release for buildings that are copyright protected or are not viewable from public space.
Property Release

He wants to use image from concert video

Dear Rich: I have some old Who videos from a concert about 35 years ago that I took one frame out of and made my own electronic art out of it. While what I created is quite different then the original frame, it is the foundation of my art picture that I am left with. If I were to hang that up or sell it, would I be violating copyright laws. It was from a very old concert and the frame that I used as a my foundation for what I created could have come from anywhere. And, if I am violating copyright, is it really enforceable and/or do you think it would be an issue with anyone if I were to sell this edited image? Short answer dept. No we don't think your use is likely to become a legal issue. As we explained in yesterday's entry, using a single still can constitute infringement though it's usually not likely to result in a lawsuit. The concert film is most likely protected under copyright law as the Who haven't been around long enough to trigger any of the traps that would drop the movie into the public domain -- for example, if it was published before 1964 and not renewed.
Fair Use Dept. It sounds as if you have the makings of a decent fair use argument (although we'd prefer if you didn't get embroiled in that type of dispute). Here's a link to compare your use to other visual arts fair use cases.
Staying out of trouble dept. Are you selling only a single print?  Problems are more likely to develop if you market the work in bulk. So if you're paranoid about being hassled, don't mass produce your prints.

House Proud on The Nate Berkus Show

Last post about Nate Berkus, I promise! Thanks everyone for watching :)

Live Colorfully

Sparkles, red lips, and cake — does it get any more Kate Spade than that?

[via Musings in Femininity]

More on using (tobacco) trademarks in films

Dear Rich: Thanks again for the blog post with my question about using trademarks in a film. One of my concerns had been that a Marlboro sign appears in the store where we filmed. I've since tried to contact Philip Morris twice via e-mail, receiving the exact same stock response both times, basically saying they don't pay for or endorse their products in any media. So I was about to call them up when I stumbled on this article on their site, which quotes:

Unfortunately, the fact that we do not engage in product placement does not mean that our brands are never shown. Some producers and directors choose to depict our brands in their work without our permission. But we are limited in our ability to stop all displays of our brands because federal and state trademark laws, as well as the U.S. Constitution, protect freedom of expression and the "fair use" of trademarks in works such as movies and television shows. Our position is clear – we do not want our brands or brand imagery depicted in movies and television shows. The unauthorized use of our brands and brand imagery perpetuates the misunderstanding among some that we pay or are otherwise responsible for these depictions, which is simply not the case. We strongly encourage the movie studios to eliminate references to or depictions of our brands. 

So I'm kinda giving up on asking them for permission, and am just going to include the image in my film. I am contacting other companies to get their permission with great success so far, but I've given up on the tobacco industry. Thanks again for your help!
Thanks for filling us in on this fascinating aspect of trademark practice. There are two reasons for the tobacco company's response. First, the tobacco companies signed a master settlement agreement of a class action lawsuit in 1998 that prohibits payment for placement of tobacco products in films. Second, there's no sense in promoting tobacco products because the tobacco companies are often sued under the theory of negligent advertising. Of course, product placement is a separate (though related) issue from granting permission. However, as we've discussed before, use of trademarks in films is commonly justified under first amendment grounds.

VIDEO: MINI Drops New Teaser for Crossover, Official Presentation on February 7

MINI's love affair with the psychedelic-looking swirly camouflage that it uses to wrap its prototype models during testing is so strong that the British firm decided to employ the same black and yellow design in its latest teaser video for the new Crossover model.

The film doesn't show anything that we haven't seen before, but MINI did announce that the official reveal of the crossover model will take place online on February 7. From what we gather, the automaker will most likely release the first official pics on that date.

The latest member of the MINI family is a small crossover measuring around four-meters in length that will be offered with an optional four-wheel drive system, both a first for the automaker. Sales are scheduled to start in Europe later this year and in the US in early 2011.

New Audi A1 to get Colored Roof Arches [with Video]

More or less, we know what the production Audi A1 that will have its online premiere in early February prior to its physical debut at the Geneva Salon in March, will look like. The Germans showed the car in near production guise through the 2007 Metroproject Quattro (3door) and more recently with the A1 Sportback concepts.

We've even seen the actual production model snapped alongside Justin Timberlake. But Audi's marketing team insists on releasing various tidbits about its sporty supermini.

In this latest video interview, the A1's exterior designer, Jürgen Löffler, reveals that Audi has kept the 3door concept model's contrasting roof arches and that customers will be able to order the roof arch in a variety of colors, regardless of the body color of the car.

He also talks about the A1's shoulder line that Audi names "tornado line", which wraps the car completely around beginning up front with the single-frame grille, extending over the front lights and the side to the tail lights and the rear hatch.

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VIDEO: Toyota FT-86 G Sports Turbo Up, Close and Personal

A great number of modified production and concept model made their world debut at this weekend's Tokyo Auto Salon in Japan, but there's one vehicle that stood out from the rest and that's no other than the Toyota FT-86 G Sports Turbo Concept.

What's special about the concept study is that there will be a similar G Sports version of the production FT-86 when the rear-wheel drive sports coupe goes on sale in late 2011.

The prototype model featured many upgrades over the standard FT-86 concept shown in Tokyo last October including a turbocharged version of the 2.0-liter boxer-four and a wide body aero kit. Follow the break to watch the video from the Tokyo Auto Salon or click here for more details.

Video via: Youtube/GT Channel

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VIDEO: 2011 Audi A1's R8-Style LED Headlights Explained

The guy you see pictured above is André Georgi, light designer at Audi, and the car shadowed behind him, Ingolstadt's answer to the BMW Group's MINI hatch, the all-new A1 that will be officially unveiled in February. And yes, Audi's latest video teaser on the A1 is all about the sporty hatchback's headlamps and in particular, the LED daytime running lights.

"On the A1, the front gets its character from a completely new form of LED daytime running lights. We have given our newcomer the sportiness of the R8 and the elegance of the A8," says Georgi. You can watch the film after the jump but you won't hear us complain if you decide to pass...

VIDEO: Toyota FT-86 G Sports Turbo Concept Kicks Ass in Gran Turismo 5

No sooner than Toyota dropped the covers on its FT-86 G Sports Concept model at the Tokyo Auto Salon today, and the makers of the Gran Turismo 5 released a video showing the souped-up prototype tearing up the virtual circuits of the much anticipated racing game.

We remind you the FT-86 G Sports is a conceptual proposal based on the prototype version of Toyota's forthcoming rear-wheel drive sports coupe featuring all sorts of aero and performance upgrades, including a turbocharged version of the FT-86's 2.0-liter boxer engine. Follow the jump for the video and a photo gallery.

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First Promo Video for Alfa Romeo's New Giulietta Sport Hatch

The countdown for the official world premiere of the new Alfa Romeo Giulietta at the Geneva Salon in the beginning of March has already began, so the Italians have started working on the promotion of their Ford Focus sized sporty hatch. To our knowledge, this is the first advert for the Giulietta to find its way on the web, but don't get too excited as the film is all talk, no action... Hit the jump to watch the video or click here for the most recent photos of Alfa's five-door hatchback model.

New Opel Corsa Color Race Harks Back to 1970s Rallye Kadett B Sprint [with Video]

Chevrolet isn't the only brand in the GM Group playing around with vivid colors and special editions that hark back to models of the 60s and 70s. So is the firm's European division Opel that has released a new exclusive edition of the Corsa supermini called 'Color Race' inspired from the late 1960s - early 1970s Rallye Kadett B Sprint.

However, unlike the sporty Kadett that combined exclusive styling cues with performance enhancements, the Corsa Color Race's upgrades are limited to cosmetic upgrades.

The three-door Color Race is available with a choice of three exterior finishes - Sunny Melon Yellow color, Casablanca White and Magma Red- and comes with a standard black hood as well as side and tailgate appliqués with a checkered flag motif, black painted roof and black 17-inch alloy wheels.

The special edition model's interior features matching color highlights such as special seat stitching and vent bezels, a Panorama sunroof and a leather-clad steering wheel.

The Corsa Color Race is offered with the same range of engines as the other 2010 Corsa models including the new 1.4-liter gasoline unit with 87HP or 100HP and the 130HP 1.7-liter CDTI turbo diesel that returns a combined fuel consumption of just 4.5-liter per 100 km or 52.3 mpg US.

Pricing in Germany starts from €15,560 or at today's exchange rates, approximately US$22,500.

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VIDEOS: 2011 Cadillac CTS-V Coupe Presentation and Action Shots

The new XTS Sedan Concept looks promising and all but the real star at Cadillac's 2010 NAIAS booth is the 2011 CTS-V Coupe. Basically, it's a slightly more compact, two-door version of the CTS-V sedan sharing the same 6.2-liter supercharged V8 engine with 556HP and a whopping 551 lb.-ft. of torque (747 Nm).

Offered with a choice of a six-speed manual gearbox or a six-speed automatic transmission with paddle-shift control that transfer power to the rear wheels through a limited slip differential, the CTS-V Coupe is propelled from 0 to 60mph (96km/h) in a mere 3.9 seconds.

Hit the jump to check out the live photos from the Detroit Show and of course, two videos that include the official presentation and a promo film with some power-sliding action.

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