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  • Writer's pictureNancy C. Prager

Happy Pop•Tart Day to all who celebrate!

It's May 3rd!


Happy Pop•Tart Day to all who celebrate!


Just me? 


Jerry Seinfeld co-wrote and directed "Unfrosted" a parody of brand origin stories focusing on my guilty pleasure, the Kellogg Company's POP•TARTS breakfast pastry which premieres today on Netflix


In early interviews about the film, Seinfeld disclosed that he and his team had produced the film without seeking any permission from Kellogg to use POP•TARTS (or any of the brands featured in the film). 


Even the promotional materials are rife with images of Kellogg, Post and other brands trademark and copyright protected materials. 


How can it be that Seinfeld could so blatantly use the intellectual property of these companies without permission? 


Fair Use. 


Yep. 


Two little words.... One big defense to copyright and trademark infringement. 


Nominative fair use is the legal principle in the United States that a third party may use an otherwise trademark protected logo or name without permission for certain purposes, including parody. 


Similarly, using copyright protected works in parody without permission qualifies as copyright fair use. 


Both nominative fair use for trademark and copyright fair use derive from the courts in the United States balancing intellectual property rights with the Freedom of Speech found in the First Amendment. 


But relying on fair use means the filmmakers left something valuable on the table... 


Fees for product placement. 


Oftentimes product placement is a valuable tool for filmmakers to raise money or in-kind support for a film. 


Similarly, brands may look for product placement opportunities in film and television to reach an audience (e.g. anytime a car is spotlighted on your favorite television show, it's a product placement).


Here, Seinfeld and his team thread a needle... 


While Kellog's did not know about the movie in advance, Seinfeld screened "Unfrosted" for them, and they liked it! 


Well, at least Kellogg's liked it enough to throw some marketing dollars behind "Unfrosted" in a series of tongue-in-cheek web videos and social media posts promoting the film.



Now I'm craving a Pop•Tart. What's your favorite flavor? 

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