Is it legal to use in my scene movie posters like for example Terminator 2 poster or Rambo poster as a decorative part of my scene. I’m making 90’s style room scene and It would be great If I could use known themes from this era, but I don’t know If I can do that. I may use this scene as a part of my Indie game project and potentially try to monetize it somehow. I’m not talking about copying existing posers but creating my own versions of these artworks as much similar as originals. How does it apply for other brands like video games or bands posters?
It would not be legal for you to use the original poster images or the original movie names, but you are allowed to create something similar (otherwise, those indie titles heavily inspired by popular games like Pokemon would not exist).
This is probably the most well-written and complete law-oriented write-up I have ever seen on this subject. Law is complex and based on Case Law, which is the study of former case decisions. The wording of the original law is often ambiguous. Whereas case decisions and judge comments after a decision are what drive how the law is applied and enforced. It is about context and understanding how things work on a case by case basis.
The article is summed up at the end quite well.
In general, it is not necessary to blur the logos and products of brands in films. There are several limitations on a trademark holder’s ability to successfully assert its trademark rights to prevent the unauthorized use of its trademark in a works of art. How the product is portrayed makes a huge difference for trademark owners, but it does not require filmmakers to seek consent for every use of a mark in his film. The motion picture industry would be severely crippled if trademark owners can use their marks to stop real products being shown in films, or even just in films which are not to their liking.
The second half of this has to do with copyright. Whereas the posters may have trademarks on them, the posters themselves, are art covered by copyright.
This article pertains to writing and covers fair use. You might want to research this more.
So, to simplify this as much as possible, I can`t use in my scene for example Rambo movie poster safely, but I can create something like Lambo character which would look similar as original?
And another thing. There are some artworks on pinterest for example that contain original trademarks in their content. I wonder on which basis this is allowed, does this depends on art medium that you are using (different copyrights for drawings, 3D art, movies/animations and games). Or maybe is it issue of monetization, maybe it is allowed for non commercial use and not allowed for commercial use.
Although “I am not a lawyer,™” I would cautiously say that you would be okay if you used the poster exactly as it originally appeared, as a very-obvious “decoration” to your scene. I’d say that this would easily qualify as “fair use.” No copyright owner could reasonably say that you were somehow depriving them of revenue – at best, they should be happy for the free promotion.
It is best first to understand the difference between Trademark and Copyright. A poster is not a Trademark. But a work of art that contains a Trademark. The work of art, the poster itself, and the character it portrays, is covered by Copyright.
Take some time to research what fair use actually is. This is in relation to the use of a Copyright. The second article I linked is concerned with fair use in terms of writing. But the same basics apply to other works of art.
Another thing to toss into the mix is if the poster has a likeness of an actor. This is separate from trademark and copyright. And this is the right of the individual to be exploited and publicized. The studio would get the release from the actor to use the actor’s likeness. This happens with anyone who appears on camera or in a photograph or advertising. So, you don’t have that person’s permission to exploit their likeness in a game or other media. You are in fact taking that from the studio, who has not granted permission because that would also have to come from the actor. They only have permission to use it with their own products which the actor has agreed.
In general, to be clear all the way around, create completely 90s style posters of your own 90 ish style characters and movies. Don’t use anything that exists.
Trademarks you can probably get away with. But just remember that reason labels and so on are covered up is not because of lack of permission as much as it is leverage. If you show Coke lables for free you are not going to get money from Pepsi or any other brand. And Pepsi is going to want you to cover up all of the Coke logos. Probably not going to apply to you. But think of the future. You never know when you might be in a position to charge money for product placement.
The same is true for the posters actually because those represent brands. If you were a AAA game, I imagine you could monetize movie poster placement. Could you get money to include movie posters? Well probably not. But you may as well start off in the right direction.
Avoid any legal issues. Create your own cool stuff and make a lot of money. Then people will likely pay you to include brands in your games. Not the other way around.
I have seen countless times in many shows, that using references rather than the exact original material is the most safe and easy way.
A dude with shade glasses and red eye (we all know who he is).
A dude with long hair and a red ribbon (yep… this also).
However not that it would be the most ideal choice but is only to think what are the pros and cons of each approach. Just focus on technical stuff and deliver the output (references). Provide the most accurate and true depiction (real material). Have peace of mind (references). Play coin-toss with trademark laws (real material).
Well I’ll advise applying a certain amount of caution by not seeking legal advice via the interweb so try contacting an IP lawyer instead, I mean other than too avert potential litigation from arising but for your own peace of mind as well, since I gather you’ve also thoughts of monetization at some later date.
I would not anticipate legal problems if you simply used a movie poster accurately as a decoration. Of course do not use it in a way that would be desparaging.
But many people get around the issue entirely by creating poster art which looks like a well-known style but actually isn’t. For instance, the “Indiana Jones” logos always use a particular, recognizable type face: any poster that uses that same font is going to conjure up the reference. Or, consider how various town sets were decorated with recognizable-but-fake parody business storefronts in the Shrek movies – a coffee shop named “Farbucks,” for instance.