Propping up your set:

how to avoid E&O pitfalls

(Diana Cafazzo and Ron Hay are entertainment and media lawyers and members of the KNOWlaw Group of the Toronto law firm of McMillan Binch.)

* * *

The shooting draft of the script is complete and preproduction is underway. As principal photography approaches, scenes make the transition from paper to screen as the team of location scouts, production designers, set decorators and props personnel, working with the director and producer, create the backdrop for the picture.

Props are often an important component in this process since they can help establish the period and setting of the story or give expression to some aspect of the characters' personalities. If the film has a contemporary urban setting, the creative team may well want to mimic real life by filling the sets with well-known brand-name products, magazines and posters.

Experienced production personnel know that they don't have a completely free hand in dressing the set, and that some caution must be exercised in the use of certain props in order to avoid legal problems.

The law of props

Using certain kinds of props without permission may run you afoul of copyright law, trademark law and the various kinds of laws which protect individuals from the unauthorized use of their image, name or other attributes.

Visual props such as artwork, posters, magazines, newspapers, sculptures and photographs are protected by copyright law and, with few exceptions, may not be used in a film or television production without the copyright owner's permission. Products bearing a brand name or a logo may be protected by trademark laws. Even a product's shape (for example, the Coke bottle) may be protected. Items showing the name or image of a celebrity or of an ordinary person may pose problems in terms of publicity rights or "personality" rights, or invasion of privacy.

There's more. Many broadcasters have policies against brand names in the programs they license. In some cases they're concerned about excessive commercialization (especially children's and public broadcasters) and none want to worry that products in your film compete with products of their advertisers. So including brand name props could either breach your broadcast licence or restrict your distributor in selling your film down the road.

Cases in point

Productions have been sued over the use of everything from brand names to toys to photographs to costumes. The producers of sex, lies and videotape were sued for invasion of privacy by a French actress whose photograph appeared on a living room wall in the film. Walt Disney launched a copyright infringement suit because someone appeared in a Snow White costume for one of the Oscar presentations. Rather surprisingly, at least three toy manufacturers actually complained about the unauthorized use of their products in the scene from et where et is found hiding in a closet.

Say you want to include a scene of an affluent teenager's bedroom. Walls are plastered with posters of rock stars and sports celebrities dressed in team jerseys along with brand-name equipment. Magazines, newspapers and cds are littered over the desk. A software program or computer game flickers on a monitor. A boss sweatshirt lies on top of a pair of nike running shoes. Soft drink containers and cigarette packages are strewn about. A nightmare for parents and producers alike.