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Product Placement

Sep 19, 2019 | Firm News

Light bulbs depicting business language

I remember back in 1991 I was reading American Psycho, the Bret Easton Ellis novel about the yuppie serial killer and sexual sadist who was also fixated on material luxury items – Hermes ties, Bruno Magli shoes, Corneliani suits, cashmere gloves and other fetishistic items – that served as a kind of shorthand for his psychoses. His obsessive fixations were at first distracting and then after a chapter or so became part of the rhythm of the novel so that I stopped noticing them and began to participate in the flow of the narrative. Days after reading it I remember automatically clocking off in my mind what kind of suits and shoes men were wearing, and wondering whether the guy walking around Hull House in beat up Levis and an old cashmere sweater had strapped on his Rolex to subtly impress the casual passersby.

Now, more than 20 years later, I find it odd that the kind of overt references included by Easton Ellis are the subject of somewhat spirited public debate as to whether the time has come for product placement in novels. We are all familiar with the concept of product placement in television – think Simon Cowell sipping from a gigantic Pepsi as a judge on American Idol – and the more subtle inclusion of products in movies. The homicide detective who throws his Marlboros on the counter, grabs coffee at Starbucks, secretly records conversations with an iPhone, and roars off in a Ford Shelby GT 500 – those are all grace notes that hopefully arise from the story line but are ultimately dictated by the bottom line. Because product placement pays big money, and is in fact one of the most effective forms of advertising a company can buy. When the hero of a $100 million thriller drinks Ketel One martinis with four Roquefort olives, shaken not stirred, a sudden spike in Ketel One martinis is seen in bars all across the world.

But why would one want to include product placement in novels? The spirit of novels has always been different than that of movies, with novels being primarily a private creative endeavor and movies generally falling along the crass edge of materialism. In an author’s first novel, lovingly polished for three or more years, you can be sure that the choice to have the protagonist smoke cigarettes has a reason behind it – it’s part of the story line, part of his background and biography, part of his character. He smokes Marlboro Reds because that’s what his dad smoked, and those were the cigarettes he stole from the house when he snuck off to smoke with his friends behind the tennis courts. He wears Levis because that’s what the cool kids wore when he was growing up. He wears Ray-Bans because they were always the epitome of cool, from classic Hollywood (before product placement) to Tom Cruise’s breakthrough role in Risky Business. People do things in books because of the backstory that the reader never sees, because of all the notebooks piled up in the author’s closet describing what [name of chief protagonist] is like.

Writers fixate on little things because they build up character by accretion – how the hero walks, how he talks, what he wears, what he drinks, his smile when he sees a pretty girl, etcetera. Movies, on the other hand, decide Jack Reacher (6’8”) can be played by Tom Cruise (5’7”) because it’s good for the box office. Who cares if the hero is supposed to be 35 years old? Who cares if he’s supposed to weigh 240 lbs? Who cares if the writer thinks the character has to be called Jack and not Billy Jack? Hollywood only cares about sales.

To my way of thinking, product placement in books is an idea that we should dispense with as not only unnecessary but essentially malign. The fight over intangible rights is already convoluted enough, when recording artists are paid by the movies for using snippets of their songs, but multinational conglomerates turn around and pay the movies to have their products prominently displayed. In one of the new television shows I discovered while recovering from surgery a few weeks ago – The Glades – I didn’t notice until about five episodes into Season One that everyone seemed to be driving a Kia. “How odd,” I thought, “I had no idea Kias were so popular with the Florida police department.”

Strangely enough, if you were a video game producer and you dared to show that same Kia during game play, Kia would be holding out its hand saying “Pay up, buddy, you need a license to show images of our awesome new Kia Sedona.” Which is precisely what happened in a case that has been garnering attention for the last year or so, when Electronic Arts got sued for using Bell helicopters in its popular game Battlefield 3. While I won’t bore you with all the details, the lawsuit arose out of failed negotiations between Electronics Arts and Bell over the terms of a license to use Bell’s helicopters in the video game. Perhaps emboldened by a favorable ruling in the Dillinger case – where a federal judge ruled that Electronic Arts could use the Dillinger Tommy Gun under a First Amendment analysis, because video games constituted “literary works” – Electronic Arts filed a declaratory relief action seeking a ruling that no license was necessary and that use of the Bell trademarks constituted nominative fair use (to the extent any defense was required at all).

The case is in stasis for the moment, though over the summer Judge Alsup of the United States Federal Court for the Northern District of California denied Electronic Art’s motion to dismiss the trademark infringement counterclaims, noting that:

It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters. . . . Although consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is ‘somehow behind’ or ‘sponsors’ Battlefield 3.

Personally, I think it is a dubious proposition that a 14-year-old boy is going to be confused about whether Bell sponsors the latest edition of any Electronic Arts game, and I would be willing to bet that his distracted parents didn’t give a passing thought to the image of the Bell helicopter on the cover of the game — they just checked Battlefield 3 off their Christmas list and moved on to the logistics of where to buy Barbies in bulk.

But what is the right result here? Should Electronic Arts have to pay for placing images of real world goods in video games, or face liability for what amounts to trademark infringement in an imaginary realm, where no one is actually buying Bell helicopters? At the edge of trademark law, we start to flirt with absurdity.