Is Super Size Me just an invitation to a super-sized lawsuit?
Copyright expert Michael C. Donaldson sizes up Super Size Me's potential legal battles.
Morgan Spurlock’s Super Size Me brings up all the legal issues that any documentary filmmaker will ever have to face — and all in one film! These issues become a bit scarier given the film’s subject — the fast-food corporate behemoth McDonald’s, which probably went over Spurlock’s film with a fine-tooth comb before going on the defense by cutting out their Super Size meals from their menus.
But even if Spurlock’s film hits the theaters unimpeded, in America anyone can sue anybody over just about anything. Fortunately the director and his team have taken precautions, and aspiring documentarians can learn a thing or two from his techniques. Let’s touch on the most obvious issues.
Trademarks.
There are a lot of trademarks shown in Super Size Me, and that is okay. The basic rule is that you can photograph a trademark and include it in your film without permission so long as you are using the mark in the way it was intended to be used. Trademarks exist to let the public know the source of a product, and generally speaking, as long as you don’t create any confusion about the product or its source you are on good legal ground.
McDonald’s, however, is likely to be very upset about this film. If so, the company would most likely sue on the basis of “disparagement of trademark.” That’s a fancy term meaning, “You unfairly knocked our product!” Consumer Reports was sued on these grounds when it was accused of unfairly reporting on tests of autos. But with Super Size Me, McDonald’s would not have a very strong case because the filmmakers were careful to report just the facts without giving their own opinions. They leave that to the viewer.
Releases.
The talking heads in the film were cleared either with a written release or on film and were informed that the filmmakers were making a documentary and would be seeking the widest possible distribution for it. Obviously, insurance companies and cable channels prefer a written release.
All Those Folks Wandering Around Public Places.
This always presents a dilemma because it is virtually impossible to obtain individual releases. When you are filming at an event, posted signs announcing that filming is going on help a lot, but don’t forget to make a photographic record of the signs just in case someone “forgets” that he or she was warned. Otherwise you might be violating someone’s personal rights. Here are the big three personal-rights violations: invasion of privacy, which can happen even in a public place; defamation, which requires a false statement that harms someone; and false light, which requires that you misrepresent someone. But truth is a defense in the USA. In some countries the plaintiff has to prove that the statement was false. The charge of false light explains why the faces on a lot of people in the film are pixeled out. The film makes a clear statement about obesity in America. Without knowing the medical history of each overweight person depicted in the film, however, it would be unfair to reveal their faces and imply that their weight was the result of too much fast food.
And that is the final — and best — rule for filmmakers. Think about how you would feel if it were your face in the film. That will often answer your legal questions more clearly than an hour with an expensive lawyer.
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