Image Protection at Universities

at_stanford_universityThe Chronicle of Higher Education (subscription required so no link) notes that Hollywood tends to ask universities and colleges for permission before they set their films or television shows at a particular campus. So Felicity attends University of New York instead of NYU, and Legally Blonde is set at Harvard instead of, wait for it … University of Chicago? Odd but apparently true (my guess is that this turn of events helped the film. No offense to Chicago but as a matter of pop culture Harvard probably takes the prize). One possible culprit according to the article is our friend US News and World Report and the ranking game. Since the report started ranking undergraduate institutions films reference real schools, rather than random State U, 29 percent of the time as opposed to 19 percent before the US News games began. The claim is that references might seem to be endorsements. So Stanford only allows “aspirational” portrayals; read here goody-goody overachievers. The article claims that Stealing Harvard was originally Stealing Stanford, but the farm rejected that idea “Since Stanford is need blind” and the story of needing to steal to go to the school would be unreal (as many fictional stories are). In contrast, Harvard seems to realize that a fictional story is just that and seems more generous about the names and so on. Note that most schools are more restrictive about shooting on campus but may embrace the idea for the fees they can charge.

All well and good, but whether there really is a trademark claim as the article suggests and the schools seem to think (note that Dawson’s Creek also wished to avoid conflict and invented Worthington University as a generic Ivy although ironically shot at Duke) is troubling. The expansive notion of association seems to fuel this perspective. But as Sandy Rierson and I argue in the Confronting the Genericisim Conundrum uses such as these are expressive and in that sense irrelevant to the market transaction trademark is supposed to be about. On a similar wavelength Mark Lemley and Mark McKenna seem to be arguing that other uses of trademarks are not relevant to trademark analysis (To be clear, I have yet to read the paper, and it may be that this sort of use would be actionable according to Mark and Mark (or dare I say it? Dare. Dare. Mark y Mark?).

In short, if one considers the feedback loop in play here, the more expressive uses that are made, the less likely people will think that Standford endorsed a portrayal. In addition, what about more critical commentary that could be set a university? Setting up a system of permissions is dangerous. Last, maybe Harvard has it correct: people are not that stupid. They can tell the difference between a fictional story and a claim to reality. Can’t they?

Image Source: Wikicommons
By: Yukihiro Matsuda from Kyoto (and Osaka), Japan

Creative Commons Attribution 2.0 License

3 thoughts on “Image Protection at Universities

  1. IIRC, Yale was used in the Gilmore Girls and the latest Indiana Jones (without naming the campus, I think). I thought both uses were probably good for the Yale brand…

    But perhaps I’m a little too much like Frank — when school spirit segues into school brand management and starts to look like a positional race for the best portrayals in fiction, I become sort of underenthused about all the boola boola.

  2. And here I thought schools were paying to get featured! I was envisioning some sort of under-the-table payment from Yale to Gossip Girl.

    What about the reverse–portraying a campus as a “safety school” or worse? I think that’s the role Sarah Lawrence played for the Gossip Girls. I also recall a parody of High SChool Musical being “Community College Musical,” but that’s generic enough to be safe.

    Finally, re positionality…it’s really sad how many experiences it infects.

  3. I doubt that Yale paid Spielberg (Spielberg has a child at Yale) or the Gilmore producers, or the producers of Jeopardy!, which hosted its college tournament there a few years ago. But the Office of Public Affairs at Yale does reach out to filmmakers and TV producers, partly for brand management and publicity but partly as a way to induce production-related economic activity in New Haven. New Haven on its own struggles to attract this kind of activity; Yale offers cachet.

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