• by David Goetzl  @dgoetzl, October 10, 2006

One of the arguments that networks put forth in favor of product placement is that inserting real, branded products into shows adds to a program's "believability." In other words, a "Grey's Anatomy" character holding a "blank" coffee cup--without the Starbucks mermaid on the side--feels as if it's missing something. So, the "real-life" brand gives the content verisimilitude.

Nowadays, product placement has become so widespread that the argument has merit in a slightly twisted way. An unbranded, blank cup just might be more attention-grabbing to a viewer than one that has the Starbucks logo on the side. Of course, if that's true, public interest groups, academics and others would certainly rail against what that says about our culture--i.e., the lack of advertising feels unnatural?

Ivory Tower debates aside, programmers frequently insert branded products in scenes in that quest for authenticity. These aren't paid product placement--mandated insertions orchestrated by the sales department--just producers and editors trying to do right by the viewer.

It seems pretty harmless. So, the assistant manager in "The Office" munches on a Baby Ruth? Or Tony Soprano buys his son a spiffy new Nissan SUV.

But what happens when the production staff's benign intentions--or no intentions at all, just prop assemblage--portray a product in a negative light? For NBC, the answer last week was litigation.

Emerson Electric, the maker of the In-Sink-Erator kitchen disposer, filed suit against NBC for the way it depicted the product in a recent episode of its new drama "Heroes." In the scene that had Emerson apoplectic, a woman sticks her hand into one of the devices and pulls it out damaged and bathed in blood.

Emerson charges NBC with "irreparably tarnishing the product" and using it in an "unsavory" way--without Emerson's permission. The company alleges that NBC engaged in unfair competition and trademark infringement and dilution. The suit also charges that NBC's use of the In-Sink-Erator "suggests (the product) will cause debilitating and severe injuries, including the loss of fingers, in the event consumers were to accidentally insert their hand into one."

NBC has said that while it does not think it is liable in any way, it will edit the scene from future airings or uses of the episode. Still, as of Friday, the suit--which seeks unspecified compensation, including corrective advertising--had not been dropped. A photo of the gruesome scene is also still accessible on the Web site defamer.com.

One legal expert, Mark McKenna at St. Louis University School of Law, said Emerson is unlikely to win the case. In an e-mail, McKenna said NBC would likely have a sturdy First Amendment defense, and he is unaware of any precedent "finding a use of a branded product in a creative work to violate trademark rights."

It seems likely that the Emerson case will be resolved via an out-of-court settlement with NBC writing a check. But if both parties were to take it to trial, it could shed some light on the bearing of the First Amendment on product placement.

In general, the First Amendment is a potent weapon for content creators. Otherwise, David Letterman might find his salary below $30 million. For example, on the Sept. 25 episode of "The Late Show," a sketch pokes fun at Subway. The voiceover segment references Iranian President Mahmoud Ahmadinejad's visit to the U.S. and his exposure to the country's evil "devotion to consumerism and imperialism" and Subway's new Meatball Marinara Sub.

While typically Letterman-esque in its randomness, it hints that Subway is the new McDonald's--the personification of the ugly American overseas. The piece mocks Subway's meal deal for $3.99 (seems like Letterman's researchers got a good deal). The meandering piece even takes a shot at Applebee's, and says Ahmadinejad is "Eatin' Good in the Neighborhood."

Neither Subway or Applebee's responded to e-mails seeking comment, but if either had been as incensed as Emerson, they likely wouldn't have a prayer of a case.

Neither would Pepperidge Farm, which found itself mocked in the Sept. 24 episode of Fox's animated show "The Family Guy." The spoof featured a "spokesman" using extortion to entice the Griffin family to buy Milano Cookies. Buy the cookies, he said, and the company would keep quiet about a hit-and-run accident. Otherwise, proceed at your own risk. "Pepperidge Farm ain't going to keep it to Pepperidge Farm's self free of charge," the spokesman said.

The whole thing is so juvenile, it's likely that Pepperidge Farm executives just shook their heads in bewilderment. But even if they were upset and pursued a case, Fox would surely be employing the First Amendment defense (the Subway and Milano Cookies placements were two of the top-ranked product placements of the week, according to measurement firm iTVX.)

Some years back, protestors noisily interrupted a speech Vice President Al Gore was giving. As if he had done it before, Gore coolly told the annoyed crowd: "Let's hear it for the First Amendment."

Television programmers no doubt feel the same way.