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Charlize Theron was shown with a tub of Ben & Jerry’s ice crean in the 2011 movie Young Adult. (Phillip V. Caruso)
Charlize Theron was shown with a tub of Ben & Jerry’s ice crean in the 2011 movie Young Adult. (Phillip V. Caruso)

Out-of-place: How brands respond to unauthorized product placements Add to ...

“You probably wouldn’t get your product in any stories if you were waiting for the perfect [character],” said Sean Greenwood, the “grand poobah of public relations” for Ben & Jerry’s.

Not everyone agrees with that lighthearted approach.

“I wouldn’t say any exposure is good exposure,” said Jason Silver, president of Toronto-based FTWK Agency, which facilitates product placements in movies and TV for clients such as Toyota, Johnson & Johnson, and Mastercard. FTWK was instrumental in an episode of How I Met Your Mother that took place partly in a Tim Hortons. But he would never allow a client’s product to be handled by a villain or be present in negative scenes.

“When I’m watching a movie and I see a fake-label brand, I know something bad is about to happen,” he said. That’s because the absence of a real logo indicates the advertiser didn’t sign off on the action.

Film and television producers regularly seek out consent before using a product, because the production company’s insurance often requires it: Securing permission cuts down the likelihood of a company taking legal action against them, which the insurer would have to help pay to defend.

But Leonard Glickman, a partner in the Business Law Group at Cassels Brock, who specializes in intellectual property law in the entertainment industry, has noticed fewer lawsuits, mostly because they are difficult to win.

“Most of the cases – and there are more in the States than in Canada – have gone against the brand owners,” he said. “There’s more of a role for a communications response than a legal response.”

Take the 2004 Slip ‘N Slide case: Wham-O Inc., the maker of the toy waterslide, sued Paramount for unauthorized use of the product in the film Dickie Roberts: Former Child Star. In the scene, the main character jumps on to a dry Slip N’ Slide to painful effect. The court dismissed the case because of a “fair use” allowance in trademark law, and because the scene was exaggerated enough that the audience would understand it was not a product placement and the brand would not be harmed.

In an age where news travels quickly on social media, more brands are learning that there is a risk in taking a legal response. When Labatt Breweries of Canada found its product in the hands of suspected killer Luka Magnotta in a photo on the Montreal Gazette’s website, it made legal threats against the paper. Twitter and Facebook erupted with criticism of Labatt, and the brand ended up being misappropriated even further: People used the Twitter hashtag #newlabattcampaign to post fake advertising slogans for the beer, tied to the grisly murder.

Beyond legal concerns, there is a simpler reason producers will ask before showing a brand in a scene: to cut costs. Many companies are happy to provide free props in exchange for having their products featured.

But unauthorized use of products is still relatively common. In 2011, New Balance had an unfortunate star turn in Crazy Stupid Love, when suave leading man Ryan Gosling threw a pair off a balcony in a lesson about bad fashion choices.

“What can a company do?” said Steven Lewis, president of integrated marketing firm XMC Sports & Entertainment, and a former entertainment lawyer with Heenan Blaikie LLP. “It comes back to libel and slander. If something is said about a brand that is inaccurate, and there are damages that can be attributed to the statement, there’s a basis for legal proceedings … But there’s an ambiguity to it – if I were defending the production company, I would talk to that point. There’s ambiguity.”

Marketers such as Jaguar’s Mr. Schorr are now thinking twice about whether that’s entirely negative.

“I think it’s a generational thing,” he said. “We knew it wasn’t real ... and our responses using Twitter and Facebook really helped turn it into a positive.”

Even when authorized, product placement has to walk a fine line between helping the brand and looking authentic, said Anthony Hello, who runs the branded content department at MediaCom Canada. As viewers become even harder to reach, companies need product placement more than ever.

“People can tune out a lot of what is out there – or fast-forward through it ... Advertising for a long period of time has been an interruption, and people don’t like to be interrupted,” Mr. Hello said. “With social media and all the screens that are constantly going, the real forefront for brands is showing up on those screens as part of the content that consumers want.”

Sometimes that means taking a deep breath, building a thicker skin, and in the case of Jaguar, praying that the car won’t start.

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