McDonald’s and Nominative Fair Use

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.

2 responses to “McDonald’s and Nominative Fair Use”

  1. joewmanning

    The golden arches could theoretically still be the subject of copyright under US law, I suppose. Copyright is protected until 70 years after the death of the author, there.

    I don’t know about US laws, but in Canada I’d assume it would fall under s. 29.2 of the Copyright Act, which refers to fair dealing for the purpose of news reporting (I’d go with criticism or review, but he’s not really criticising the design of the arches, is he?). The research exception, I think, mostly deals with the creation of a limited number of copies for personal study (or education), so I’m not certain it would apply here. I might need to re-read the copyright pentology at some point.

  2. dmchugh

    Wouldn’t the golden arches be subject to trademark law, as opposed to copyright law? Copyright protects the expression of ideas. I’m not sure what idea the golden arches expresses. I guess you could really stretch the concept and say that the golden arches express the idea that McDonald’s foods can be purchased at the restaurant located underneath the arches. But if the concept of copyright can be stretched that far, it would kind of undermine the whole point of trademarks.