Is It Better To Ask For Forgiveness Or Permission? Non Legal Factors That Drive Trademark Clearance Decisions In Film & Television

As entertainment lawyers, we are often asked a deceptively simple question by creatives, producers, and studios: “Can we use this trademark in our project?”

This question is actually two questions in one. First, it is a legal question: do we have a legal defense to the proposed use? Second, it is a business question: even with a strong legal defense, should we still seek consent from the trademark owner?

To answer the legal question, one must weigh the context around the proposed use against available defenses, including the First Amendment Rogers defense and the nominative fair use defense. To answer the business question, one must conduct a risk assessment that considers many non-legal factors.

Even when a legal defense is strong, the decision to seek permission is ultimately a business judgment. This blog discusses some of the non-legal, practical factors parties should consider when deciding whether to seek permission (rather than forgiveness after the fact) for a proposed use of a trademark in film and television.

Below are some factors that weigh in favor of obtaining consent:

1. Does the E&O carrier agree with the strength of your legal defense? Even where counsel is comfortable with a legal defense, the carrier issuing the errors-and-omissions policy may not share that comfort level or may require additional steps before underwriting the risk. If the carrier views the use as likely to trigger a claim, or believes the claim could be expensive to defend, it may condition coverage on a license. Even a strong defense is not necessarily a cheap one to assert. Before the Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC, defendants asserting the Rogers defense could often obtain dismissal at the pleadings stage, avoiding the cost of discovery altogether. Since Jack Daniel’s, plaintiffs have increasingly alleged that a mark is being used as a source identifier, sometimes with minimal factual support, and that allegation alone can make it harder for courts to dismiss on Rogers grounds early. This is particularly true for title-based claims because titles often do double duty: they usually describe the subject matter of the work (e.g., Home Alone is about a child left home alone), but they can also signal source to some consumers. Because titles can serve that dual function, the expressive-use-versus-source-identifier line becomes harder to draw early on. The practical effect is that even a defendant who ultimately prevails on the merits may be forced into discovery and a longer court process, which carries real litigation costs that a carrier will factor into its own risk assessment.
2. What is the owner’s enforcement history? Not all owners behave the same way when they see their trademarks used in film and television. Some brands are known for sending cease-and-desist letters at the first sign of unauthorized use. Some file suit readily and aggressively litigate. The same is true of certain celebrities and their estates. An owner does not need a strong legal basis to come after you. A lawsuit can be filed as a tactic: a pressure tool designed to force a license negotiation, delay a release, or simply make the litigation costs so painful that settlement becomes the path of least resistance. So, even when the law may be on your side, you have to ask a separate question: who are we dealing with?
3. Are you an attractive litigation target? High-profile productions, deep-pocketed studios, major streamers, and projects with substantial marketing spends can look like better settlement targets and may face a higher likelihood of being challenged. A weak claim can still create meaningful business disruption, particularly if it triggers concern from distributors, platforms, financiers, or advertisers. Consent can reduce the likelihood that an owner uses timing and publicity as leverage.

Alternatively, there are some scenarios where asking for permission can increase risk rather than reduce it. Below are the factors to consider that weigh against obtaining consent:

1. Will asking for consent alert owner to a use they would not otherwise have known about? Once the request is made, it often travels beyond legal into marketing and brand management teams, where decision-making may be driven by reputational preferences rather than legal nuance. If the rights holder says “no,” or simply does not respond, the production may be left with fewer options than it had before asking, including potential insurer discomfort because now there is a paper trail of a refusal. For some projects, the better risk posture may be to proceed based on a documented clearance analysis and reasonable mitigation steps, rather than create a conversation that invites scrutiny.
2. Will development/production/distribution be slowed down? Permission processes can be slow and unpredictable, even when everyone is acting in good faith. The production may need to identify the correct rights holder and the person with actual licensing authority, and then wait for internal review cycles that may involve multiple departments and layers of approval. The brand may request additional context, require script review, insist on depiction limitations, or seek approval rights that are difficult to accommodate in film and television production workflows. When a project is approaching locked picture, delivery deadlines, or marketing rollouts, delays are a significant risk.
3. Is there room in the budget for it? Negotiating a license can require meaningful attorney time. Even when an owner is willing to approve the use, the process may involve a license fee higher than what was planned for in addition to approvals and other restrictions that create downstream costs for the production (e.g., rewrites, reshoots, etc.).

As a practical matter, the clearance process should start early: the moment a real brand, logo, or trademark is likely to appear in a script, on a set, in a title, or in promotional materials, it should be flagged for review. Problems caught later are far more costly to fix through reshoots, edits, delivery delays, or errors-and-omissions insurance complications. From there, the legal analysis and the business analysis work together rather than in sequence. The party should assess whether the proposed use is likely protected under the law, while also weighing whether that legal position is sufficient in light of non-legal factors. No single factor is dispositive, and the goal is not to set one rule that productions should always seek consent or never seek consent. Trademark clearance in film and television is ultimately a fact-dependent risk-management decision made under real constraints, where practicalities often shape strategy as much as the strength of the legal defense.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.