Abercrombie & Fitch has offered to pay Jersey Shore cast member Mike “The Situation” Sorrentino not to wear its clothing. I hesitate to give this publicity stunt more publicity. But the coverage from the New York Times includes a garbled account of fair use law. The article spreads the damaging myth of the clearance culture: the false view that artists need approval for every single item of trademarked or copyrighted material appearing in a work.
Here's how the Times wades into the law:
Jordan Yospe, a lawyer who handles product-placement deals in movies and television shows, said that if Abercrombie were serious about keeping its clothing off the Situation, it would have pursued legal options rather than offering him money.
“They could try to prevent the series from airing their intellectual property without their permission,” said Mr. Yospe, a lawyer at Manatt, Phelps & Phillips in Los Angeles. Logos and labels fall under fair-use law, he said, and shows have to get approval from the owner of the intellectual property to use them
That’s why on so many low-end reality shows, brands are often blurred, Mr. Yospe said — the shows either could not or did not try to get approval. Abercrombie “could say, ‘Blur ’em,’ ” if they really wanted to sever the association, Mr. Yospe said.
But it is simply false that an artist needs permission for every logo or label depicted in a creative work. See, e.g., Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 812 (9th Cir. 2003) (use of Barbie trademark in photographs fair use); Wham-O, Inc. v. Paramount Pictures, Corp., 286 F. Supp. 2d 1254, 1263 (N.D. Cal. 2003) (depiction of and reference to Slip-N-Slide toy in movie was nominative fair use). Indeed, in what I can only assume is a clumsy paraphrase of Mr. Yospe, the Times gets the law of fair use backwards—you do not need approval if something is fair use. See Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (“being denied permission to use a work does not weigh against a finding of fair use”).
This is not the first time the New York Times has incorrectly suggested that approval is needed for any use of trademarks in creative works. The resulting fear and confusion around fair use is exactly why we have the absurd result of brands being blurred in reality shows and documentaries. Producers would rather deface their own work than risk a lawsuit, even if the lawsuit lacks merit. It is a sad situation indeed.