‘Flight’ gives rise to interesting fair use dispute

By Pankaj Ladhar of Manos • Alwine P.L.

Denzel Washington’s Miami fans might not have realized it, but when they went to see Washington’s new thriller “Flight,” they were actually watching the subject of a very interesting intellectual property debate.

In case you have not seen the movie, Washington plays a character who struggles with alcohol and drinks at inappropriate times, like when he is behind the wheel.

One of the drinks Washington’s character consumes in Budweiser. Earlier this week, Anheuser-Busch asked Paramount Pictures to digitally erase the Budweiser trademark from future copies of ‘Flight.’

In a statement, Anheuser-Busch said it does not condone irresponsible use of its product and doesn’t like that it is being depicted in connection with unhealthy drinking.

Now, usually, the use of a trademarked image in a film is considered fair use, meaning it is a reasonable and fair use of work without the author’s permission. However, it’s a case-by-case analysis, since a condition of fair use is that the use in question not impede the rights holders’ ability to earn money and doesn’t constitute more of a “use” than is necessary to accomplish the original objective.

As applied to this film, then, does negatively portraying Budweiser impede Anheuser-Busch’s economic interests and is Budweiser used more extensively than necessary to accomplish the objective of showing that Washington’s character is an alcoholic?

In any event, Anheuser-Busch has asked for the logo to be removed, but hasn’t made any legal moves yet. That likely says something about how it perceives its chances of filing suit over this issue.

Source: The Hollywood Reporter, “Anheuser-Busch Asks Paramount to Remove Budweiser From Flight,” Daniel Miller, Nov. 6, 2012