Packaging Cameos: Legal & Creative Rules for Showing Brands On-Screen

Packaging Cameos: Legal & Creative Rules for Showing Brands On-Screen

The legal framework (U.S.)

1) Nominative fair use: calling a brand by its name—no more, no less

If you must reference a brand to identify the thing (“grab the Kleenex,” “she drives a Lexus”), courts allow limited use so long as (i) the product or service isn’t readily described without the mark, (ii) you use only what’s necessary, and (iii) nothing suggests sponsorship. The Ninth Circuit’s New Kids on the Block decision is the touchstone, later applied on the internet in Toyota v. Tabari. Practically, that means keep logos unobtrusive and avoid “official partner” vibes unless you actually have a deal. GGU Law Digital Commons Ninth Circuit Court of Appeals

2) Rogers v. Grimaldi: expressive works get breathing room

When a trademark appears in an expressive work (film, TV, game) as part of the creative expression, courts often ask: (a) does the use have artistic relevance to the work; and (b) is it explicitly misleading about source or endorsement? If it’s relevant and not explicitly deceptive, trademark claims usually fail. This is the Rogers test. For set-dressing or story realism, artistic relevance is typically easy to show, and an absence of endorsement cues helps. Law Resource

A recent narrowing: Jack Daniel’s v. VIP Products (U.S. Supreme Court, 2023)

The Court held that when you use another’s mark as a mark (i.e., as a source identifier for your product—there, on a dog toy label mimicking Jack Daniel’s trade dress), you don’t get Rogers’ threshold shield; ordinary likelihood-of-confusion analysis applies. For filmmakers, this mainly bites when a prop becomes your branded merch or marketing—less so for transient packaging on screen—but it’s a caution against building a product line around someone else’s trade dress. Supreme CourtSkadden

3) Negative or prominent portrayals: false endorsement, dilution, disparagement

Even without a brand deal, you can show real equipment and logos. When Caterpillar tried to enjoin Disney for depicting its bulldozers as “villains” in George of the Jungle 2, the court declined to block release, crediting the film’s expressive context. Still, conspicuous, sustained logo shots near harmful conduct (e.g., intoxication, violence) can draw dilution or false endorsement claims. Clear editorial framing—not product adulation or bashing—helps. Justia Law

4) “Knockoffs” on camera

Using a counterfeit that viewers might think is genuine can backfire. In the Hangover Part II case, Louis Vuitton’s suit over a fake LV bag failed—partly because any confusion stemmed from the third-party knockoff, not the film’s use in an expressive work. It’s safer to use real goods or clearly fictionalized designs than ambiguous fakes. Justia Law

5) Copyright and “origin of goods” are different questions

Trademark law is not a back door to control attribution over expressive content. The Supreme Court’s Dastar decision limits Lanham Act “origin” claims for communicative works; attribution disputes belong to copyright, not trademark. This matters when packaging art or labels are themselves artworks. Legal Information Institute

When you should seek permission (or re-design the shot)

  • Paid placement, sponsorship, or endorsement. If money or in-kind consideration changes hands, you’ve entered advertising territory—paper it. Follow the brand’s usage guidelines and your guild/union or platform rules. In social media and branded content, the FTC Endorsement Guides require clear, conspicuous disclosure of material connections. Federal Trade Commission+1
  • Merchandising, key art, or promo materials. Using someone else’s trade dress or logo on your posters, thumbnails, thumbnails-as-ads, or product tie-ins can signal source and trigger Jack Daniel’s-style scrutiny. Supreme Court
  • Extended, hero-shot logo exposure. Long shots or dialogue expressly praising or attacking a brand increase perceived association. Consider neutral angles, obscuration, or fictionalization. Law Resource
  • Risky contexts. Tobacco, firearms, or illegal drug depictions with a real brand in frame can invite claims (and platform policy issues). When in doubt, switch to a “faux brand.”

International quick hits (TV & streaming)

European Union (AVMSD). The Audiovisual Media Services Directive permits product placement with conditions and requires identification of placements (e.g., at the start/end of programs and after ad breaks), plus category bans (notably for tobacco); Member States implement specifics. emr-sb.deOSCE

United Kingdom (Ofcom). UK television must display the “P” logo to signal product placement at mandated times; Ofcom’s Section 9 includes rules against undue prominence and category restrictions (e.g., no product placement in children’s programming). Films made for cinema aren’t subject to the broadcast P-logo, but TV versions are. www.ofcom.org.uk+1Marketing Week

Creative guardrails that reduce legal risk

  1. Use the minimum necessary. If the story needs “a sports drink,” consider generic packaging—or if realism matters, keep any real logo incidental (out-of-focus, partial, or brief) and avoid dialogue that suggests approval or partnership. Nominative fair use favors restraint. GGU Law Digital Commons
  2. Avoid endorsement cues. No “thank you” credits, no “official sponsor” phrasing, no brand b-roll cut like an ad—unless it is an ad and you disclose accordingly. Rogers looks for “explicitly misleading” signals; don’t add them. Law Resource
  3. Mind negative associations. Satire is often protected, but gratuitous brand-bashing tied to logos can attract dilution/disparagement claims. The Caterpillar case shows courts resist prior restraint, but litigation is its own cost. Justia Law
  4. Don’t build your own product on someone else’s trade dress. A prop label that too closely is a famous label—used as the source indicator for merchandise—invites Jack Daniel’s problems. Supreme Court
  5. Prefer fictional or cleared assets for “hero” shots. If the packaging is in close-up, on key art, or central to plot beats, commission a faux brand or license the real one.

Clearance checklist (producer’s cut-down)

  • Context: Is this editorial use inside an expressive work (scene realism) or commercial use (ad/endorsement, sponsor reel, paid placement)? If commercial, paper it and plan disclosures (FTC, platform rules). Federal Trade Commission+1
  • Prominence: How long and how close is the mark on screen? Reduce duration, size, and centrality if permission is absent. Law Resource
  • Messaging: Any dialogue or visuals implying endorsement? Remove, re-write, or add clarity. Law Resource
  • Alternatives: Can a faux brand or generic art serve the scene? If yes, prefer it for hero shots.
  • Deliverables: Will stills or clips be used in marketing? Re-review for Jack Daniel’s exposure if trade dress appears in ads or merch. Supreme Court
  • Territories: Will the work broadcast in the UK/EU? Plan for product placement identification, broadcaster rules, and category bans. www.ofcom.org.ukemr-sb.de

Sample playbook for your art department

  • Green-/Greek-it: Blur or tape over logos when you don’t need them; design a neutral look that reads “soft drink” without reading “Coke.”
  • Design a “house brand.” Build a library of cleared fictional labels (fonts, colors, shapes that don’t evoke a single famous trade dress).
  • Logo logic. If you must show a mark: limit to a glance, avoid center frame, and don’t pair with brand-lifting sound design (no loving can-crack and product beauty pan unless licensed).
  • Paper trail. Keep notes on why a real mark was necessary for realism (nominative need) and how you reduced confusion risk; this helps if issues arise. GGU Law Digital Commons Law Resource

Case spotlight (quick reads)

  • Rogers v. Grimaldi (2d Cir. 1989): Artistic relevance + not explicitly misleading = expressive use protected. Baseline for trademarks in creative works. Law Resource
  • E.S.S. Entertainment v. Rockstar (9th Cir. 2008): Parodic neighborhood club in GTA: San Andreas protected under Rogers; look and feel used to evoke place. Ninth Circuit Court of Appeals
  • Jack Daniel’s v. VIP Products (U.S. 2023): When you use another’s mark as your mark, Rogers doesn’t apply; analyze confusion directly. Supreme Court
  • Caterpillar v. Disney (C.D. Ill. 2003): Court refused to halt film release over negative depiction of branded bulldozers. Justia Law
  • Louis Vuitton v. Warner Bros. (S.D.N.Y. 2012): Hangover II bag scene survived; confusion pinned to the counterfeit bag maker, not the movie. Justia Law
  • Toyota v. Tabari (9th Cir. 2010): Internet nominative fair use; allow only what’s necessary and avoid implying sponsorship. Useful outside the web, too. Ninth Circuit Court of Appeals

UK/EU broadcasters: on-screen signals

For TV content in the UK, expect “P” logo requirements at the start/end and after ad breaks if paid placement is present; Ofcom’s Section 9 also polices undue prominence. EU Member States implement AVMSD rules that require identification of placements and prohibit certain categories. Streamers and international distributors often follow the strictest-territory rule in deliverables. www.ofcom.org.uk+1emr-sb.de

Bottom line

If a real-world brand cameo is incidental and truthful, enhances realism, and avoids endorsement signals, you’re likely on solid footing under Rogers and nominative fair use. The moment you lean into promotion, extended hero shots, negative tie-ins, or merchandising, shift to clearance or fictionalization—especially post-Jack Daniel’s. Build these decisions into your shot lists and deliverables, and loop in counsel early for international versions.

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