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    Can Peloton Sue Over Its ‘And Just Like That’ Appearance?

    A Peloton stationary bike played a pivotal role on the new HBO Max “Sex and the City” revival, whose premiere preceded a drop in the company’s stock price on Friday.This article contains spoilers for the premiere of “And Just Like That” on HBO Max.Peloton, a maker of high-end exercise equipment, was just as surprised as you were by its appearance on “And Just Like That,” the new HBO Max limited series that picks up the story of “Sex and the City.”At the end of the first episode, Mr. Big (Chris Noth), the on-again-off-again love interest of Carrie Bradshaw (Sarah Jessica Parker), clips into his Peloton stationary bike for his 1,000th ride. Shortly after he hops off the bike, he has a heart attack and dies.After the shocking ending, we couldn’t help but wonder: Are companies usually in the dark about how their products will be used in a movie or TV show, as Peloton reportedly was? What does the typical product-placement agreement look like? And if a company is particularly upset with how its product is portrayed, does it have any legal recourse?So, can Peloton sue?According to Nancy C. Prager, an intellectual property and entertainment lawyer, there are two types of product-placement agreements: one in which a company pays to be featured in show or movie, and another in which a production company procures a trademarked product to be used onscreen.Peloton declined to state on the record whether it was involved in any formal product-placement agreement, but if a production company wants to use a trademarked product, Ms. Prager said, it must get a special license to show the product and brand logos. (In the episode, the Peloton logo is clearly visible on Mr. Big’s bike, and the instructor video closely resembled a real Peloton course.)Ms. Prager explained that under trademark law, a principle known as nominative fair use allows production companies to use a trademark as long as the product is shown being used in a way consistent with the original trademark.“Nominative fair use does not to apply, though, when you use the protected mark in a way that disparages the mark or the brand,” Ms. Prager said. HBO “tarnished Peloton’s good will to consumers,” she added, noting that Peloton products purport to make their customers stronger and healthier.The ‘Sex and the City’ UniverseThe sprawling franchise revolutionized how women were portrayed on the screen. And the show isn’t over yet. A New Series: Carrie, Miranda and Charlotte return for another strut down the premium cable runway in “And Just Like That,” streaming on HBO. Off Broadway: Candace Bushnell, whose writing gave birth to the “Sex and the City” universe, stars in her one-woman show based on her life. In Carrie’s Footsteps: “Sex and the City” painted a seductive vision of Manhattan, inspiring many young women to move to the city. The Origins: For the show’s 20th anniversary in 2018, Bushnell shared how a collection of essays turned into a pathbreaking series.“The tarnish can be evidenced by the stock price plummeting,” she added, referring to the 11 percent drop in Peloton stock overnight after the episode aired. The stock’s value continued to fall on Friday.In Ms. Prager’s view, that means Peloton could reasonably consider litigation, especially if HBO did not disclose the story line involving the product.“It was a misstep that Peloton wasn’t fully aware of the script,” said Stacy Jones, the chief executive and founder of Hollywood Branded, a marketing and branding agency in Los Angeles.Peloton did not know how the bike or its instructor Jess King would be featured in the show, according to a report in BuzzFeed News. Ms. Prager and Ms. Jones agree that withholding those details leaves HBO in murky legal territory.“The production forgot that product placement is supposed to be mutually beneficial, and they did not put their thinking cap on about the damage that this would cause the brand,” Ms. Jones said.This seems like a lot of trouble. Why bother with product placement?“Think of product placement as an alternative form of advertising,” David Schweidel, a professor of marketing at Emory University Goizueta Business School, said on Friday.In recent years, companies have been seeking out product-placement agreements more than ever, he said. The increased use of streaming platforms means viewers are seeing fewer commercials, driving companies to make greater use of product-placement deals to promote themselves.“If I can’t reach my customer base with a traditional television commercial anymore, I take the product in the program itself,” Professor Schweidel said. “Then, they can’t avoid it.”He estimated that product-placement advertising was worth well over $20 billion in 2021.For production companies, the arrangements can be mutually beneficial, since featuring recognizable brands can make a show more realistic, Ms. Jones said.In this particular case, the inclusion of Peloton was integral to advancing a story line. “Peloton provided a solution to their problem,” she said.Can HBO protect itself?Usually when a company is so unhappy with how its product has been portrayed that the idea of litigation is floated, “TV shows claim that it’s a parody, that viewers obviously knew that this was fictional,” Beth L. Fossen, an assistant professor of marketing at the Kelley School of Business at Indiana University, said on Friday.That approach usually works for shows like “Saturday Night Live,” she said.But given that Peloton was the subject of unfavorable headlines this year about a child dying in an accident involving one of its treadmills, the story line may have “hit a little too close to home” for that argument to work, Professor Schweidel said.At least for the time being, it seems that Peloton is uninterested in pursuing litigation. In a statement on Saturday, Dr. Suzanne Steinbaum, a cardiologist on Peloton’s health and wellness advisory council, noted that “Mr. Big lived what many would call an extravagant lifestyle — including cocktails, cigars and big steaks — and was at serious risk as he had a previous cardiac event in Season 6.”Dr. Steinbaum said that Mr. Big’s lifestyle choices, perhaps in conjunction with a family history of heart disease, were most likely the cause of his death.In fact, she speculated, “riding his Peloton bike may have even helped delay his cardiac event.” More

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    Bicycle Diaries: Cruising With the ‘American Utopia’ Family

    Our intrepid reporter and photographer biked through Queens with David Byrne and some of his castmates ahead of their return to Broadway. Then the skies opened up.On a dock in Queens, David Byrne’s musical bike gang was gearing up to go.“Are we ready?” Byrne called.It was a Saturday in late August, and the gang — three percussionists, a guitarist, a bassist and me, along with a daredevil photographer and lighting assistant — were sitting astride bicycles as Byrne, our fearless two-wheeled leader, outlined the plan.He wore a brimmed, pith-style helmet and a tour guide’s relaxed confidence: He’d done this route before, from Astoria to Flushing. The destination was the Queens Night Market, a paradise of global food stalls at the site of the 1964 World’s Fair. He’d already been talking up a ceviche stand and the all-women samba drumline he’d seen the last time he’d pedaled through.The market, in its diversity, “is really extraordinary,” he said — the kind of endeavor that seems like an antidote to our current social divisiveness. “In that context, you really go, ‘OK, this is not impossible, we can do this.’” It’s a message of community-as-uplift that Byrne, the former Talking Heads frontman, has been big on recently, with his hit theatrical concert “American Utopia,” a mostly joyous pilgrimage through his music. Even the act of extreme weather that ultimately derailed our ride didn’t curb his ability to find revelation locally.From left, the percussionists Tim Keiper, Jacquelene Acevedo and Daniel Freedman. “We would go on these adventures,” Acevedo said of the rides with Byrne. “It’s great. You come back six hours later, exhausted, like, ‘Where did I go?’”Byrne is, of course, a devoted cyclist: He’s written a book about it, and even designed bike racks; last week, he took an e-bike to the Met Gala (so he wouldn’t get sweaty!) and checked his helmet at the door. In the Before Times, I could sometimes clock the velocity and verve of my nightlife by how frequently I intersected with him speeding to some event along the Williamsburg waterfront bike path. He was easy to spot, often dressed in somehow still-pristine white — as he was on this evening, stepping off the East River ferry in white pants, a blue guayabera shirt and brown fisherman sandals. His whole crew, castmates from “American Utopia,” had been onboard, too.On the dock, he gave a few general instructions — hang a left at the big brick building, “go down for, like, a couple miles; should I say when our next turn is? Sixty-first, we make a right” — and then we peeled off. In interchanging pairs or spread out, our expedition took up half a city block. “Riding in New York is — hoo-hoo!” trilled Angie Swan, the guitarist, who had moved here from Milwaukee to work with Byrne and was now dodging through a crowded bike lane.From left, the guitarist Angie Swan, Byrne, Freedman, Keiper and the bassist Bobby Wooten III. The band members got matching folding bikes during their tour.It was the weekend before rehearsals began for the Broadway return of “American Utopia.” But the cast had already been convening throughout the pandemic for these miles-long, leisurely (or not) bike rides around town, led by Byrne, who is 69 and has the stamina of an athlete and the curiosity of a cultural omnivore. Queens, the Bronx, Staten Island: He traversed the city a couple of times a week at least, trailing bandmates alongside him.“That kind of pioneering spirit that he has in music is the same as he has in his bike rides,” Jacquelene Acevedo, a percussionist and Toronto transplant who lives in Manhattan, said as we pedaled along, passing beneath the rumbling train and only-in-Queens intersections like the corner of 31st Avenue and 31st Street. She said she got to know the city on these socially distanced rides. “We would go on these adventures,” she said. “It’s great. You come back six hours later, exhausted, like, ‘Where did I go?’”From left, Freedman, Byrne and Swan. They landed in Flushing Meadows Corona Park with the rest of the group as the sun was setting.That Saturday, we pulsed through Jackson Heights toward Corona — two neighborhoods, Byrne observed later, that had been hit hard, early on, by the coronavirus — and saw the city’s rhythms change. We spun through families barbecuing on pedestrian blocks and dinged our bells along to the streetside cumbia and reggaeton. It was, in a word, glorious.We might’ve blown a few stoplights, too, and caused some double-takes as Cole Wilson, the photographer, and his assistant, Bryan Banducci, cycled ahead of the group but peered backward to get their shot. Byrne was always in the lead; as soon as traffic disappeared, he removed his helmet, revealing his signature silver coif.By the time we landed in Flushing Meadows Corona Park, the sun was setting. Byrne led us to his ceviche spot. Moments later, the skies opened up: Tropical Storm Henri, arriving far earlier than the forecast predicted. We were quickly drenched. So, so drenched.A night that was meant to be a dreamy celebration of this multicultural city and its serendipitous connections, experienced from atop a bike seat, wound up in a (very) soggy group subway ride home. But even that became a moment for Byrnian wonder, thanks to a subway preacher and her acolytes, and an unexpected bit of ecstatic dance — the civic and the divine aboard the 7 train. Byrne clocked it all, surrounded by his bikemates.This group of musicians had toured with “American Utopia” when it was a more traditional rock concert a few years ago, and their matching bikes — a folding model made by Tern — came along then, too. The bikes had their own compartment on the tour bus: “Even when we went overseas, the bikes would come,” said Tim Keiper, a drummer. They would sometimes ride 25 miles before soundcheck, added Daniel Freedman, another drummer. (There are more than four dozen percussion instruments in the show.) “David would find the cool thing,” Freedman said, “and be like, there’s a restaurant or a museum or something bizarre, funny — ‘Cumming, Iowa! We’ve got to go!’”For Byrne, the rides kept him “sane on the road,” he told me later, “and inspired and stimulated.”It also gave his cast and crew a connection that was rare among performers. The original run of “American Utopia” ended in February 2020, just before the coronavirus shut down the city’s live performance spaces. During lockdown, Annie-B Parson, the show’s choreographer, saw the “American Utopia” crew a lot more than anybody else, she said. The cast’s emotional closeness onstage? “It’s not acted.”“Bike riding is a nice metaphor,” she added, “because there’s a kinship. There’s a group moving together, but everybody’s in their own space. But there is a unison. It’s a dance, for sure.”Tropical Storm Henri arrived earlier than forecasted. But the group did manage to finally try the ceviche and some of the other fare at the market.Days after drying out from the Queens ride, the group gathered for rehearsals. “American Utopia” is now playing at the St. James Theater, a bigger Broadway venue than its previous home, the Hudson. Parson, a downtown choreographer known for her attention to form and multimedia detail, was thrilled to learn that the stage is a rectangle, as she’d originally envisioned for the piece. “To me, a square shape is a warm shape that faces in, because there’s symmetry on the sides,” she explained. “A rectangular shape implies infinity, because it reaches out on the sides. They’re both beautiful. This show, and David, to me, I associate with a rectangle.”So Parson polished the choreography, much of which is done by the musicians while they’re playing. (Chris Giarmo and Tendayi Kuumba, standouts onstage and in Spike Lee’s filmed version of the show, are the main dancers.) In one rehearsal, Parson directed Byrne to amplify a moment by turning to face his castmates, giving an extra beat of connection there — the pandemic had underscored a theme of the show, “that we’re not atomized entities,” Byrne said. “Being together with other people is such a big part of what we are as individuals.”As a collaborator, Byrne leads with praise. Watching his percussion circle, he danced along with his very core. “I love the first half where you change up the groove, but it still keeps all the momentum,” he told them.In Byrne’s recent eclectic career, “American Utopia,” which will receive a special Tony Award at this Sunday’s ceremony, has taken up a bigger chunk than other projects. It may be because it makes him happier. “It’s a very moving show to do,” he said, “and a lot of fun” — not least because audiences shimmy with abandon a few songs in.And it pulls from the panoply of Byrne’s interests. There’s neuroscience, civic history, and Brazilian, African and Latin instrumentation. The visual and movement references span the world: the Bauhaus artist Oskar Schlemmer; ’70s Japanese movies; a Thai king’s coronation; and, after our Queens odyssey, a scene from the 7 train, when a woman pulled out a mic and an amp, plugged in and began proselytizing.Byrne, unrecognized beneath his mask, stood near her, holding his bike. Across the way, her companion suddenly began doing impassioned hand motions that were reminiscent of some “American Utopia” moves, waving and snapping her wrists around her face. “Annie-B should see this!” Byrne said, almost to himself. Someone taped a snippet, and he sent it off to her to check out.“There are no words to describe how adventurous David is,” Parson said. “He always finds the most profound way to interact with a place with his bicycle, and he always invites others, graciously, to join in.” More