Post-Apocalyptic Fiction: A Likelihood of Confusion?

The overwhelming popularity of movies and TV series revolving around dystopian societies with post-apocalyptic chaos is hard to miss these days.[1]  With hit television shows like AMC’s The Walking Dead, and old-school revivals like Independence Day: Resurgence (sequel with 20 years of lag time from the 1996 original), Hulu’s adaptation of Margaret Atwood’s novel The Handmaid’s Tale, and successful sagas like The Hunger Games – the appearance of harsh, world-ending themes does not seem to be going away.[2]

While some of these cinematic dramas encompass a completely fictional world of their own, many instead take our world some amount of years into the future where some catastrophic event has led to zombies, toxic waste, or some other form of disaster that threatens the existence of the human race.

Now, with many films, the audience is made aware of the geographic setting by a shot of some notable landmark in the background. Many such landmarks are trademarked.[3] The Hollywood sign, Empire State Building, Yankee Stadium, The Willis Tower and The Louvre are just to name a few.[4] Filmmakers often need to obtain licenses from the trademark owners to include shots of these notable landmarks in their productions.[5] However, if and when these licenses are not obtained, a trademark owner often has difficulty pursuing an infringement action against the filmmaker because the “touchstone” of trademark infringement is missing.[6] A likelihood of consumer confusion is generally lacking in instances like these where there is no direct competition between the trademark owner and the filmmaker.[7]

When dealing specifically with trademarked landmarks in post-apocalyptic fiction, is this better or worse for the trademark owner? Do the enhanced special effects to create a nearly destroyed Hollywood sign push the infringement even closer to a non-competitive artistic use? Or does the depicted deterioration of these famous landmarks give the trademark owner a better chance at a dilution claim?

For more information on this concept of trademarked landmarks in fictional films, check out Dr. Joel Timmer’s article in Volume 15, Issue 4. His article will also soon be featured in the 2017 edition of the Intellectual Property Law Review, an anthology published annually by Thomson Reuters (West).

Congratulations to Dr. Timmer on his article being chosen as one of the best law review articles related to intellectual property law published within the last year!

[1] Sarah Goodyear, Doomsday Scenarios, Daily News, http://interactive.nydailynews.com/2016/02/why-hollywood-obsessed-with-apocalypse/ (last visited June 6, 2017).

[2] AMC.com, http://www.amc.com/shows/the-walking-dead; Independence Day: Resurgence, IMDB, http://www.imdb.com/title/tt1628841/ (last visited June 5, 2017); Hulu.com, https://www.hulu.com/the-handmaids-tale (last visited June 5, 2017); IMDB, http://www.imdb.com/title/tt1392170/ (last visited June 5, 2017). [[I’m not sure if these are better as footnotes or just as hyperlinks in the blog post]]

[3] Joel Timmer, The Depiction of Trademarked Landmarks in Fictional Films: Protecting Filmmakers from Infringement and Dilution Liability, 15 J. MARSHALL REV. INTELL. PROP. L. 676, 678-379 (2016).

[4] Id. at 679; See also, JP Danko, 10 famous landmarks you’re not allowed to photograph for commercial use, Photography, http://www.diyphotography.net/10-famous-landmarks-youre-allowed-photograph-commercial-use/ (last visited June 6, 2017).

[5] Timmer at 677-678.

[6] See generally, Robert C. Welsh & Pratheepan Gulasekaram, Protecting Products That Go Hollywood, Santa Clara Law Digital Commons, 24 California Lawyer 41 (2004).

[7] Timmer at 684.