I had an interesting conversation with David after our Week 5 class about nominative fair use and the movie Super-Size Me. For those of you not familiar with the film: first off, watch it because it’s hilarious. Documentary maker Morgan Spurlock spends one month eating three meals a day, only eating at McDonald’s. I’ll let you imagine the result.
My question for David was: the golden arches appeared more than in passing (so this wouldn’t be nominative fair use), and we can all be reasonably certain that McDonald’s didn’t licence anything to Spurlock for this film (if you’ve seen the movie, you’ll understand). So, how was Spurlock able to make such extensive use of this McDonald’s trademark?
After talking with David and reading a bit, I think the answer might be this: it is not trademark infringement, because a consumer is unlikely to confuse the movie as a McDonald’s product nor are they likely to believe McDonald’s sponsored the movie. It is not copyright infringement per a fair use defence, because the purpose of the film could be classified somewhat as reporting or research (terrible, terrible, immoral research 😉 ).
I’m not sure if that’s an entirely accurate answer, so maybe others can pitch in.