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It began with Katharine Hepburn’s character dumping some Gordon’s gin out of Humphrey Bogart’s weather-beaten boat in “The African Queen” and hit its stride when the heart-melting alien in “E.T.” displayed a fondness for Reese’s Pieces candy. Today, the Hollywood-oriented business known as product placement has grown into an industry worth about $4 billion each year. So when 7,400 lawyers, corporate executives and other industry insiders convened recently in San Diego for a gathering of the International Trademark Association, it was only logical that part of the focus was on trends toward greater use of product placement as well as the increasing potential for misuse of trademarks in movies and television. “In a world of Tivo, where you can skip commercials, companies try to work products into shows and movies,” said Bruce Keller, a trademark specialist with Debevoise & Plimpton in New York who was among the speakers at the San Diego conference. Nimble companies are aggressively seeking licensing arrangements and will pay to place their trademark product on TV and in movies. The flip side � the misplacement of a product in a setting considered damaging to the corporate image � produces lawsuits. The Federal Trade Commission recently rejected a call by a consumer group to identify for viewers the paid product placements on film and television. But a similar request before the Federal Communications Commission is still pending, according to Keller. Fights over the unlicensed use of protected works that show in the background of movies and television shows took a sharp turn after artist Faith Ringgold sued Black Entertainment Network for copyright infringement when a poster of one of her paintings, “Church Picnic Story Quilt,” appeared in the background of the “ROC” television show. Previous cases had held that incidental use of a protected product in a film amounted to fair use. But the Second Circuit U.S. Court of Appeals, in Ringgold v. BET, 126 F.3d 70 (1997), changed the legal landscape in Hollywood by concluding that fair use could not be decided on summary judgment. Instead, the appellate panel directed the trial court to take into account the potential effect on Ringgold’s future ability to license her design. In the meantime, protecting celebrity images on a global basis has become more complex than ever due to technology that allows even long-dead celebrities to be digitally brought back to life. “It is possible to digitally have [President John F.] Kennedy saying something he never said in life,” said David Bernstein, another partner at Debevoise & Plimpton who helped to organize the San Diego meeting. “That is scary for politics in our society today.” In the entertainment industry, who has the right to decide whether digital images of a celebrity can be created? “It is an issue of moral rights for the entertainer,” said Bernstein. And when it comes to protecting commercial rights, “there is the law of 200 countries you have to consider,” he added. Pamela A. MacLean is a San Francisco-based reporter for The National Law Journal.

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