Sometimes you get the most sophisticated intellectual property questions while sitting on the couch and watching television.  This one comes courtesy of The Big Bang Theory. Does CBS need permission when Sheldon wears those t-shirts bearing copyrights and trademarks?
The Big Bang Theory is the most watched show on television and features one of the lead characters, Sheldon Cooper, the brilliant but neurotic theoretical physicist.   Sheldon is a big fan of string theory and comic books.  On almost every single episode of the show, Sheldon sports a t-shirt that bears logos or pictures related to Superman, the Flash, Batman and even Godzilla.  Of course the images that appear are protected under copyright and in the case of many of the logos (like Superman’s S”) trademark as well.  So is it copyright and trademark infringement when Sheldon wears those shirts or even if you use such logos in your own comic book, movie or book?
As is with the case with most legal questions the answer is….maybe.  Generally, you must have permission to use someone else’s intellectual property.  Also, you cannot create some kind of association with a trademark that makes other people believe you are affiliated or associated with the brand when you are not.  (In the case of The Big Bang Theory it is produced by Warner Bros, a parent company of DC Comics so that permission is pretty easy to get for DC Comics’ properties. )The defense to all this is the doctrine of Fair Use meaning you can use someone’s trademarks and copyrights for a limited purpose because it is “fair”.  For example, could the character in your story drink a COKE or do you need permission to say the soft drink. More likely than not, that is Fair Use but why risk it?
All movies, television shows, and books have people who do clearances.  This means that the work is reviewed for the use of copyrights and trademarks and in most cases the film studio or network seeks permission to use the the logo.  Yes it might be Fair Use if an actor is wearing a Captain America t-shirt but why risk the lawsuit?  If you are seeing a copyright or trademark on television it is usually because the network got permission to do so or the brand is paying for product placement.  Those trips to Subway on television shows are not random and usually paid by a sponsor.  Many television shows, especially reality shows, will put black tape over logos to avoid infringement and avoid having to get and pay for permission.
So next time you are watching The Big Bang Theory and Sheldon is wearing a branded shirt remember that CBS has permission or someone is paying for you to see it.
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