Is the person in the following situation at risk of being sued for copyright infringement?
A video photographer is producing a short television spot intended to raise public awareness of poverty in the local area and the work of a local charity. The video photographer receives permission from a local welfare family to film them preparing and eating a Thanksgiving dinner with food provided by the charity.
The project is lots of fun, the family is very sweet, and the charity comes through with loads of groceries for the dinner. Back in the studio, the video photographer goes over the footage looking for the best piece for the TV spot. As it turns out, there is one incident that is so endearing that the video photographer feels simply must be used.
The footage shows a scene of the family gathered around the dinner table talking and eating when the youngest child, a cute little boy, looks up from his plate and gravely intones to his older brother "Do you have any Grey Poupon?" His brother smartly passes a bottle of the mustard to his sibling, and everyone breaks out in laughter.
When the video photographer is just about finished creating the spot, he recalls something from school about copyright or trademark infringement.
Could the video photographer or the charity be sued? If yes, what should the video photographer do?
It is unlikely that the producer of the documentary will get sued, because the context of the documentary, and the context within which this commonly-recognized phrase was repeated by the child does not create a correlation to using, buying, refusing, nor boycotting the product to which the phrase is associated.
It is when the phrase is used intentionally to induce or deflect attention toward or from a product where trademark infringement can be considered. According to 15 USC § 1127 the trademark crime consists on:
Yet, 17 USC § 503 points out that, like with copyright law, a fair use defense can be put forward by the documentary producer in defense of the words spoken by the child. The "fair use" defense can state that the child, out of innocence, repeated a phrase that is very popular and that the use of the phrase maintained the same primary meaning/context that the Grey Poupon corporation intended to use for its product. Therefore, the use of the phrase was:
- not intentional; the child was not coerced to say anything for any particular reason. The argument from the part of the company is that the original commercial of Grey Poupon dramatically contrasts with the setting of the documentary; in the original, two men in Rolls Royce cars are featured, one asking the other to pass the product to the other. In the case of the documentary, the family is poor. Yet, there is no evidence that suggests sarcasm or irony from the part of the child.
- devoid of specific meaning; the child merely repeated a marketing slogan that clearly correlates the product with food. Therefore, the mention was not conducive to anything nor meant to deflect or criticize. It meant nothing.
- inconsequential: in order to prove fair use, it should show that there was no negative effect from the child's usage of these words.
As long as the producer insists on focusing on the context of the documentary, on the innocence of the child, and on the effects of his words, he should be free from any issues if someone claims to take offense to the child's words.