Commerce and entertainment comingle with entertainment is nothing new. In the beginning it was likely that a major company sponsored an entire show and you heard the words, “Brought to you by…” Then you began to hear, “This segment brought to you by…” and at this point networks had figured they could make more money by segmenting advertising.
Soon Walt Disney came along with Mickey Mouse and Donald Duck and Disney everything grew: toys, theme parks, other merchandise and food. The decisions to interface the Disney show with product placement for them was easy. The opportunities were not hidden away from the public either.
In the 80’s Reeses’s pieces sales grew 65% the little boy shared with ET in Steven Spielberg’s ET. That was the beginning of a new generation of marketing called “Product Placement.”
What is a product placement deal?
Product Placement is when a company or manufacturer allows its trademark, products or image to be shown within a third-party media platform, generally television or film.
There are a lot of misconceptions. The first one is that every time you see a product or trademark, it is a paid position. This is not true. There are even instances where producers or networks have had to pay to license the trademark or show the products. And there are many Product Placement situations that are “barter” situations.
Do not write brands into your scripts. There are other instances where producers places brands into their scripts and independent productions and either the brand would not agree to the licensing or the fee was too great for the producers. This is true for all intellectual property! You need permission for every trademark, logo and product that a brand is shown. The only exception is The Fair Use Doctrine for the purpose of documentary,
Viewers are now sophisticated and they know how to avoid commercials; therefore commercials and product placement must have meaning. Without you knowing Product Placement can be added to media already filmed and archived or TV show that have been aired for a long time.
When constructing a Product Placement deal heed to the following generalizations.
- Do not proceed without brand agreement on paper,
- Do not conflict with other products.
- Try to use positive light.
- Determine the scope of the placement: how many minutes, what view, what happens in the scene, what will the lighting be like and how long does the product appear?
- Know your actors and how they work with Product Placement.
What is Product Integration?
Product Integration means that the product is embedded in the media; perhaps the actors drive of a certain brand as advertisement.
Product Placement Releases and Permissions
If you can view the logo or the brand, there is an agreement. The manufacturer gives the producer or the network permission to license the product or trademark. The deal will depend heavily upon what “light” you show the product and what associations the product will gain “positively” or “negatively.”
Nominative Use – The use of another’s trademark to identify something and it does not imply sponsorship or endorsement. This doctrine is losing power as the judge in the case, New Kids On The Block v. News America Publication, made it up. Some consider Nomitive Use a runaway of The Fair Use Doctrine, however this is loosely regarded. Three things apply to Nominative Use if it is going to be applied in court,
- The product or service in question must be one not readily identifiable without use of the trademark;
- Only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
- The defendant must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
Agreements and trademarks have great power over this doctrine, but some call it the Nominative Fair Use Doctrine. Most courts will come to the conclusion that infringement, is flat out wrong.”
Do advertisers have to disclose their Product Placement?
Section 317 of the Federal Communications Act (FCC) is required to disclose when it “transmits any matter for which money service or other consideration is either directly or indirectly paid or promised.” These regulations apply only to public airways and do not apply to cable or private broadcast.
However many industries have rules concerning advertising and Product Placement, such as the alcohol, tobacco and the children’s advertising and these may apply in all circumstances and they may regulate the advertisement or placement as well.
As a producer it you are tempted…DON’T! Let us line up your Product Placement and analyze the opportunities. Our conclusion at The Communications Journal is to get expert help!