A 14-year-old boy made a stop motion animation film to accompany Spinal Tap's song 'Tonight I'm gonna rock you tonight' featuring Lego figures representing the band, crowd and instruments. The band saw the film and projected it on to the stage at concerts.
They have just released a DVD of that tour and have succumbed to Lego's demands that any stage footage showing the boy's film be cut from the release.
"[The footage] had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12," Lego spokeswoman Julie Stern told the New York Times newspaper.
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Other brand owners have previously demanded that their products be excised from films in what is becoming known as product displacement. Mercedes was reported to have asked to have its cars removed from Danny Boyle's Oscar winning Slumdog Millionaire last year.
Trade mark law expert Lee Curtis of Pinsent Masons, the law firm behind OUT-LAW.COM, said that trade mark law in the UK is unclear on whether or not companies have the right to make such demands.
"If the use of the trade mark is incidental in the film, then it can be argued that the use of the mark does not affect its 'essential function' in the words of the European Court of Justice, quoting from the well known Adam Opel case," said Curtis. "This reasoning was also followed in the relatively old case of the use of the English football team's three lions logo on the shirt of an England player whose photo formed part of a card which was sold with Trebor Baseet sweets. Essentially the trade mark was simply not being 'used in the course of trade' in that instance and the Football Association failed to enforce its trade mark rights against Trebor."
Curtis said, though, that there were some arguments companies could make depending on the context of the use of their trade marks.
"Brand owners argue that the public are aware of the concept of 'product placement' in films and thus would assume that the prominent use of a trade mark in a film is in some way authorised by the trade mark owner," he said.
"Problems often occur where the brand is associated in the film with something unsavoury and thus the brand owner can argue the use of the brand was in someway detrimental to its brand image and devalued the value of the brand. Tarnishment may be a particular issue with well-known or reputable marks," said Curtis.
The other right that might be invoked by the makers of featured goods is copyright. Intellectual property expert John Mackenzie of Pinsent Masons, the law firm behind OUT-LAW.COM, said that companies may be able to take action, but only if their products are a central feature of a work.
"If the product or the brand is protected by copyright then the brand owner will be able to take action if the brand or logo is a central feature of the film," he said. "In a case involving the Football Association and [football sticker company] Panini it was held that without the team badges being present the Panini stickers would not have had the same value to Panini or their collectors."
Lawyers for Spinal Tap told the New York Times that they were sure that the film's appearance in the background of staged performances was fair use, but that the band did not think the fight was worth having.
