Band names in my novel?

I'm not sure of the legality surrounding it, or the context of your novel, but i would personally tend on the side of caution and get permission, if possible. Someone who knows these ins and outs better than me will be along with the correct answer shortly, i'm sure.

Legally, I don't think it would be any problem if you were simply naming them. You might want to be careful, though, as music mentions can date your book really quickly if you don't choose well (and sometimes if you do.) Of course, if you are trying to set the time and place, some Beatles mentions would be perfect in 1964, etc.

I don't think there's a problem unless you're writing something slanderous or libellous against them.
It's ok if one of your characters says he doesn't like them.
But don't go into song lyrics, because those are copyrighted.

I'm pretty sure its okay to mention them.
I mention Dunkin' Donuts and my character wonders if Abercrombie and Fitch or Hollister will have a maternity line

fairy86 said:

I'm pretty sure its okay to mention them.
I mention Dunkin' Donuts and my character wonders if Abercrombie and Fitch or Hollister will have a maternity line

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Fairy86, Selena meant band names, not brand names. But as per your comment, brand names are okay as long as you don't over do it (as pointed out by Kate Testerman during MSFV's secret agent contest in April).

Tuuli said:

Fairy86, Selena meant band names, not brand names. But as per your comment, brand names are okay as long as you don't over do it (as pointed out by Kate Testerman during MSFV's secret agent contest in April).

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Lol, I just noticed that. Sorry, I've only gotten about 6 hours of sleep since Thursday! But I'm sure band names are fine too! I used Flyleaf and Paramore in my novel.
. . . wow, I really need to get some rest!

I thought it said Bland Names...

The bands undisputably exist in our real world, therefore you're perfectly entitled to mention them. But as said above, avoid saying derogatory things about them (unless it's proven to be true). Same advice applies to brands.

-Derek

How about blands?

I thought I'd use fake band names in a play I wrote several years ago. Not only is it really difficult to come up with a realistic name that's not already taken by an actual band, but the fake names you produce are later used by real bands.

Maryn, who felt validated, at least

There's a novel called Sway that actually uses members of the Rolling Stones and other real people as fictional characters. You might look into what that author did to ensure he was safe.

Amy, the legalities surrounding "publicity rights" and trademark and copyright infringement can definitely be a little murky and confusing. I'm no lawyer (so don't take any of this as legal advice), and I don't know how you're using these band names exactly, but here are some things that may help you figure out for yourself if you're protected:

Product names are generally fine, as long as you don't use them to promote other products or services. On the subject of trademark infringment (which would cover the use of product names, e.g.), the U.S. Government has this to say:

"If the term is being used in a literary sense, but not to label or otherwise identify the origin of other goods or services, then the term is not being used commercially. One example of non-commercial use is descriptive use (where the name is used to describe something, such as "He went to MacDonald's for lunch" or "She was wearing the MacDonald tartan)." - http://www.copyright.gov/circs/circ1.pdf

So, it seems that as long as you're using it simply as a simple reference to a real world thing, in and of itself, without using it to promote or sell your products or services, or to deceive the public into thinking your product is linked with or the same as theirs, it's fair use.

Titles are always fair game. Titles of songs (or TV shows, or books, or anything else) can't be copyrighted, so you can pretty much always use those. Allegedly. :>)

Historical figures are generally fair game. As long as you either stick to the facts, mention them only descriptively, or make very, very clear that they have been fictionalized (at least to some degree), historical figures can be used relatively safely. Most of the time. According to Lloyd L. Rich at publaw.com:

"The writing of historical novels or other fiction works that are based on actual people and events would not be possible if an individual's right of publicity legally prohibited such efforts. Courts have generally held that as long as a fictionalized work makes it clear to the reading audience that the work is one of fiction then there is no infringement of an individual's right of publicity. One difficulty with this distinction is that some courts have failed to distinguish between works that are fictional and those that are factual and have permitted an individual to successfully claim that a fictional work has infringed his/her right of publicity." - http://www.publaw.com/rightpriv.html

Publicity Rights are a big, chaotic mess. When it comes to the issue at the heart of your question -- using names of real people or groups -- things get a little messy. At the federal level, there's only one law I know of that deals with this: Lanham Act, 15 USC § 1125(a) prohibits unauthorized use of a person's identity to create a false endorsement. So, basically, as long as you're not using the band's name to promote your book, you're probably fine there. There may be other laws (like I said, I'm not a lawyer and my research into this answer has been very brief this evening), so be sure to do some research on the topic yourself. Or talk to a lawyer. Either way.

Other than that, my understanding is that Publicity Rights are left up to each state to decide for itself. In some states, the judges tend to support free speech. In others, they've ruled in favor of the celebrity or their estate. And whether the person is dead or alive comes into it as well. New York, for instance, rules that publicity rights cease when the person dies. California, OTOH, transfers the rights to the deceased's family or estate. And which state's law applies to your work depends on which state was the residence of the person or group you're naming. It's a huge mess.

To get a taste of the California laws regarding publicity rights, go here: http://library.findlaw.com/1998/Feb/1/130405.html It even has a number of cases listed that illustrate how courts have found in real world suits.

All that being said, I have a feeling that you'll be fine if you are just mentioning them descriptively, as a part of the world that your characters inhabit. E.g., If you mention in passing that one of your characters is listening to the Cure, or is wearing his favorite NIN hat, you're probably fine. If, however, you (a) quote lyrics, (b) make Britney Spears one of your main characters, or (c) use the appearance of the band in your story to promote your story, you'll probably be sued. A lot.

Don't take my word for it, though (Did I mention that I'm not a lawyer?). :>) To do a little more research into the question on your own, you can start out with a search of "publicity law" and/or "publicity rights" on Google (or wherever you like to search).

If that doesn't answer the question, you could always attempt to contact the bands or the license holders and see if they have any objections to your use of the name(s), or if they have any requirements for the use.

If you're still unsure, you can always meet very briefly with a lawyer (or hit up a forum on a law site) and get some actual legal advice from an actual lawyer (which I'm not).

If you're still unsure, you can always bite the bullet and invent your own band name(s). If you need help with that, I'm sure the creative people of this board wouldn't mind a little brainstorming... right, people? :>)

Or, if all else fails, I have a little "random band name" generator that I created for a project I worked on in the past. I'd certainly be willing to generate a few pages worth of band names for you. :>)

Anyway, Amy, I hope that helps.

Did I mention that I'm not a lawyer?

You've heard this a bunch of times already on this thread, but I don't think you'll have a problem. If all you want to say is something like 'X character has tickets to see... whatever, Counting Crows,' you're almost certainly fine. Even if you want to say 'X character really thinks Counting Crows sucks the big donkey schlong,' you're fine. I'd be willing to bet you could write a short story involving members of Counting Crows being accused and convicted of heinous crimes against humanity and you'd be fine.

The first amendment protects almost all speech, with a few notable exceptions (a few of which have been brought up here). I've noticed a lot of discussion about libel and slander, and I thought I'd comment briefly on that. First, slander doesn't apply. Slander is spoken. Second, libel isn't something you see novelists accused of very often.

Libel is a tort (a civil wrong) that involves a false utterance made with the intent to defame. (Indeed, many jurisdictions don't really have any kind of separation between libel and slander anymore; they just lump them both under a single tort called defamation). In other words, you have to say what you're saying with knowledge that it's false and you have to intend that people will believe you and that the reputation of the person you're speaking about will be harmed.

You don't have to prove that what you said is true. The person bringing suit against you (Counting Crows in our example) has to prove it's false. You don't have to prove that you didn't intend harm. CC has to prove that you did. That's how it works in all civil cases. Because those things are very difficult to prove, libel cases are rarely filed even when it's very likely that a piece of writing was libelous.

But even if it were easy to prove, you would probably be in the clear for pretty much whatever you want to say because you're not writing a newspaper article. What you're writing does not purport to be true. It's clear that your intent is not to defame because it's clear that you're not telling people something you expect them to believe.

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Important disclaimer: This is not legal advice. I have no idea what jurisdiction you're in and tort law is state law. It varies from state to state. (All states must bow to the first amendment, however.) I also have no idea what the specifics of your project are, who you want to write about or what you want to say about them. As a general rule, though, a fiction writer can saw whatever he wants about whatever he wants with impunity. In the US at least.

One caveat regarding what David just said: Just because a case is not realistically winnable, it doesn't mean a crazy celeb won't bring suit anyway. Even if they lose the case, it's (1) a big hassle for you, (2) a lot of wasted time in court for you, and (3) a lot of legal fees, which you may or may not be able to recoup.

I agree that you're probably relatively safe from libel charges (as long as you're not obviously stomping all over the libel laws), but Publicity Rights are a whole 'nother story. Writers need to be very careful about the boundaries of Publicity Rights and a celeb's legal control of their "persona." And because the boundaries of Publicity Rights are so ill-defined and state-specific, it can be a tough line to toe.

As long as you're not doing any more than mentioning the bands (or celebs or whatever) in a passing, literary, descriptive way ("Kyle paused his Arctic Monkeys mp3 and stared at the mushroom cloud," e.g.), you should be fine.

BUT -- and this is a big BUT -- be aware that some celebs are crazy and litigious and may jump on you anyway. They may have no legal leg to stand on, and they may ultimately lose, lose, lose in court, but you still may have to go through the hassle and cost of being involved in a court case.

Thankfully, I've never been fully in that position. But, in the mid '90s, I worked on a videogame that took place in 1982, in an alternate Earth timeline. In this timeline, the gas crunch of the '70s never ended, society collapsed, and people took to the streets and backroads in muscle cars loaded with weapons (think Mad Max meets Miami Vice). It was fun, funny, and VERY obviously fiction. When we sent our scripts and level designs through our legal department, however, we were quickly given a bunch of major changes to make to several of the characters. Why? Because the big bad guy at the end was Ronald Reagan (piloting a giant robot), his henchman was John Hinckley, Jr. (with a Christopher Walken voice), and our lawyers knew that Ron Reagan, Jr. was extremely litigious.

Now, this was a billion dollar a year corporation I was working for (ie, plenty of money to spend), the lawyers were some of the tops in their field, and they knew that we were covered by Fair Use (because the game was obviously both fiction and parody). They knew that Ron Reagan would never win a court case in the end. BUT they were worried that he would bring a case anyway -- because he'd done it in the past with other people -- and they didn't want to spend the money and time fighting it in court.

In the end, we got them to compromise and we made only a few small changes to our script and designs to cover ourselves a bit more legally (and took our chances with the rest), and it all worked out fine. But the moral of the story is the same: Just because something you write is legally covered, it doesn't mean someone won't drag you into court anyway.

With that in mind, let me reiterate what we've all said on this thread now: As long as you're not using the bands as main characters in your story, using them to promote your story or your book, or representing your book and your statements about them as non-fiction, you should be fine. As long as you're using them only as descriptive elements of the world your characters inhabit, you're probably fine.

BUT, if you plan to use real world people in your stories now or in the future, it would behoove you as a professional writer to learn all you can about Publicity Rights. No reason to walk blindly into a minefield...

And, like I said in my earlier post: If you're planning to use the bands more extensively than descriptive elements and you're worried about the legality of it, you can always send an e-mail to the band or the person/company/estate that controls their rights, and ask for permission. Odds are many bands (especially current ones) would be fine with letting you use their name for free (as long as you don't go overboard). Worst case scenario: They ask you for money for the right to use their name, and you say "no" and substitute another band's name in the same spot. :>)

Anyway, Amy, I hope some of this helps.


j

Enzo said:

I don't think there's a problem unless you're writing something slanderous or libellous against them.
It's ok if one of your characters says he doesn't like them.
But don't go into song lyrics, because those are copyrighted.

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You can't write anything slanderous...

Every point Hollywood John made in his post is a good one. Though I was a writer before I was a lawyer, having been to law school, it often seems now that I'm a lawyer first. I think in terms of what you can and can't do and who will prevail under the law when there's a disagreement. I've never been terribly good at remembering to give the kind of advice John has given. The 'Yeah, you'll win, but it probably won't be worth it' variety. I tend to think that if someone has a right to do something, that's the end of the discussion and it just isn't true.

Still, I just don't think this is a huge issue. I don't know a thing about publicity rights (though I probably should learn). That's not the kind of law I practice. Just the same, I do know that Ronald Reagan's name, his image and his life story (his entire life story) are completely public domain. You can say anything you want about that guy. And the same is true for bands. I applaud John's mentioning that the suit he was trying to avoid was probably ultimately without merit, but the artist in me still chafes at the idea of letting an overly-litigious heir scare me away from a cool Reagan-piloted giant robot.

I acknowledge, though, that it's something to think about and leave you with this last bit of advice: Don't mention Metallica.

Here's the thing. When you get the book published, your publisher has lawyers. They will check all this stuff and give you a memo. I have been there and done that.

You can say that your character listens to Death Cab for Cutie. You don't need to get permission from anyone for that.

What you can't say is that Death Cab for Cutie lip-synch all their shows and steal their lyrics from sixth-graders' creative writing assignments.

I mention Alice in Chains and Depeche Mode in my novel, I think its fine. I ope it is lol i just mention how much my character loves those two bands.

davidnowlin said:

the artist in me still chafes at the idea of letting an overly-litigious heir scare me away from a cool Reagan-piloted giant robot.

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Oh, we chafed. A lot. It was near the end of a two year project on which we'd worked very hard, we were supposed to be releasing within a month, and Legal came back with all these objections at the 11th hour. While it was frustrating to think we'd have to make these changes quickly (and, given the ticking clock, poorly), the main reason we were frustrated was exactly what you're describing: we were legally in the right, we all knew we were legally in the right, and it just seemed unfair that a legally-protected artistic expression should be squashed by jumpy corporate fear over unfounded (and, at that point, imaginary) lawsuits.

So I not only understand what you're saying, david, I agree with it. Whole-heartedly. What's more, I think it's fundamentally wrong for an artist to hamstring him/herself out of fear of potential, random, unfounded lawsuits.

That being said, I still think it's a good idea for writers -- or any artists, really -- to educate themselves in the parts of the law that affect their art (publicity rights, for one). Yeah, as some have suggested here, you can just write blindly and with imagined impunity and let your publisher's legal team tell you after the fact what you can and can't keep, but why waste the time carefully and lovingly constructing, crafting, and weaving bits of a story that are for sure going to be thrown out later (leaving you to attempt to reconnect the remaining bits in a satisfactory way) when you could've avoided the whole mess with a little knowledge up front? There are always going to be notes and changes that need to be made, but some are avoidable.

BTW, the end of the Reagan-in-a-Robot legal adventure went like this: We suffered through several miserable weeks in which we were forced to change the characters' names, pitch-change their voices (so they would be unrecognizable), and cut out any shots of their faces. It completely killed not only the fun of the story, but any sense in the plot. Unfortunately, being so late in the game, those were our only options.

We didn't stop fighting for our original vision, however, and, using everything from a sit-down read-through of Fair Use and numerous examples from shows like Saturday Night Live, managed to convince corporate and Legal to let us dial back all the changes except one: we couldn't show Reagan's face. Our last minute solution? We gave him a giant cowboy hat that kept his face in shadow. :>) In the end, we kinda felt that was even better than showing him outright.

davidnowlin said:

Still, I just don't think this is a huge issue.

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In the context of the OP's question, I imagine you're probably right. Like I said in my previous posts, I imagine Amy's fine as long as she's using the band names in a relatively benign way. Descriptive elements of the characters' world, e.g. Basically, as long as she's not making the band the star of her story, or using the band's name to promote her book in any way -- and, though she doesn't mention how she's using them, it doesn't sound like she is -- I'm sure she'll have no problem.

Hell, contrary to what someone said here, I think she could even get away with bashing them, as long as it was done through a character's voice and opinion and not treated as a narrative statement of fact.

Still, her question opened up other questions regarding how far that ability to name a real world person or group in a story extends, and I think those are worth covering. Which we did. :>)

davidnowlin said:

Just the same, I do know that Ronald Reagan's name, his image and his life story (his entire life story) are completely public domain. And the same is true for bands.

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Really? Is that true? My understanding -- and, I admit, I'm no lawyer, so correct me if I'm wrong -- is that the actions, images, and stories of politicians and government employees are only public domain during moments when they're on the job. For instance, the text of any speech given by Reagan is public domain, but interactions he had with Nancy in his private life are not. Similarly, any document created by a government agency is public domain, but a short story an employee of that agency writes at home on his own time is not.

Another example: A photograph of Reagan taken by an on-the-job government employee documenting Reagan on the job is public domain, but a photgraph taken by a journalist is a copyrighted work belonging to the journalist.

In the case of celebs (or anybody, really), my understanding is that unscripted things they say (and, to a certain extent, do) in public are public domain (which is why People can quote some dumb thing Lindsay Lohan says on the Red Carpet without permission), but you still can't take a photo of a celeb you snapped on the street and use it in an ad for your product.

Am I misunderstanding the law here? Or your comment?

davidnowlin said:

Don't mention Metallica.

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Now THAT is good advice. :>)

Methinks I'm a bit of a coward on this issue. Rather than use the real name of some prominent schools in the San Francisco Bay Area, I opted to change them to Leland University and the Golden Gate Conservatory of Music. But then, that way I could alter other things about those institutions to suit my story without any worry or guilt--the name and history of a sports team, for example.

Yet it is likely I'll mention sooner or later the musical tastes of some characters, as in So-and-So popped in an Aerosmith CD, or Jane Doe preferred P!nk over Bach usually. Honestly, I don't see how that would be a problem. If, on the other hand, a band were part of a main body of the story, methinks I'd almost certainly make up a fictionalized version of same. For example, I kinda/sorta combined the Beatles and the Rolling Stones once into a band called NoMoreEagleZ, but with Jim Morrison (not really) taking on the John Lennon "role."

Offered for whatever that might be worth.