Starbucks mug on the Winterfell table – how did it happen?

The Internet rumbles about the “slip-up” of the creators of the latest episode of the eighth season of the famous series “Game of Thrones”. What is it about this time? Well, in one of the scenes set at Starks Castle, Queen Daenerys is ‘accompanied’ by a paper cup from a well-known chain of Starbucks cafés. This is a good opportunity to introduce our blog readers to the topic what rights clearance in audiovisual productions is and when we deal with product placement.

The role of lawyers in film and TV series production is not only to prepare, negotiate and enforce agreements concluded by producers and film crew, but also to verify what creative elements, symbols and trademarks appear in the produced work – both at the stage of script writing and post-production.

Source: “The Game of Thrones”, episode 4, season 8, HBO production.

The lawyer’s role in such situations

So called ‘rights clearance’ – irrespective of the fact that it is in the vital interest of the producer, who is responsible for the legal defects of the film – appears more and more often in contracts as a producer’s obligation (in relations with co-producers, TV stations or streaming platforms). It requires analysing, first of all, the script and then the finished film (image and sound) in order to verify which trademarks, names and symbols, as well as references to culture or existing events, history or persons require consent or licence from third parties, and which elements of the set design or script will not be necessary. It is not uncommon for these questions to be answered in such a way that they are not at all obvious.

Between product placement, infringement and mere slip-up

However, symbols, logos, products and trademarks in film and series are not only a question of the limits of creative freedom and the ability to relate to reality. It is also a potential source of financing for audiovisual productions in the form of product placement. The question of who decides on product placement and at what stage depends to large extent on contractual arrangements. The situation is different in feature films, where it is usually the producer’s decision, with possible contractual restrictions on active placement in relations with actors. The situation is different in series produced on behalf of broadcasters or streaming platforms – here full decision making is usually left to the ordering party financing the series.

The key issue is also the contractual bans on any unauthorized brands presented by actors or crew, often burdened with high contractual penalties. How to treat a Starbucks mug placed in the centre of the set, in a scene taking place in one of the Winterfell Castle rooms?

Was there a slip-up, or is there a not really subtle product placement in the “Game of Thrones” series? We don’t know that. What is certain, however, is that Starbucks is being talked about by the whole Internet today.

It is worth noting that from a legal point of view, the use of someone else’s trademark/product in your own work without the brand owner’s consent should be considered on a case-by-case basis. In many situations, this will be acceptable in the light of freedom of expression and creative freedom – especially when the products or logotypes in question are part of the reality shown in the film. There are situations, however, which give rise to the risk of potential civil law claims for infringement of trademark rights or, more generally, parasitism on the reputation of another entrepreneur or infringement of personal rights – especially due to the fact that the context is not particularly positive.

Accidental profits

There’s also the other side of the coin. It happens that an accidental or purely artistic presentation of a product in a film, especially a very popular one, gives the owner of the used brand “free” very tangible popular one, gives the used brand’s owner free and quite easy to calculate benefits. It should be remembered that product placement (with all its consequences – including legal restrictions and information obligations) can only be mentioned when the producer receives some form of remuneration or benefits for such a “service”. If a given brand appears in a film only within the creative decision of the creators – we are not dealing with a product placement. An example of such a situation was (at least according to the statements of all interested parties) the use of Wilson’s volley ball as a moving companion of the main character, Chuck, by the creators of ‘Cast Away’. After the success of the film, Wilson released a special edition of ‘Mr. Cast Away’.

Why is it worth using clearance?

Legal and creative ‘clearance’ (in this case, often also good and responsible post-production) therefore seems essential in any audiovisual production – regardless of the need to limit legal risk – gives the producer a sense of control over what happens in the background of the plot and when the use of certain elements in the script and set design will be risky or vice versa – potentially profitable.

The Starbucks mug in Winterfell joined the slip-up canon of the cinema, next to the plane in the film ‘Troy’, the watch on Gandalf’s hand in ‘The Lord of the Rings’ or the gas cylinder in the chariot in ‘Gladiator’. Unless behind the scene, which circulated the Internet faster than the episode itself, stands a product placement agreement.