Using real-world stuff

It's fine, so long as you don't say anything either false or negative about them.

In other words, don't write Bobby looked at his Star Wars sheets, faded and pilling after only three launderings.

Maryn, who's had cheap sheets, obviously

Isn't this more of a "fair use" copy-right question, the Warhol Soup Can thing? While brand names have been used for many decades in fiction, whether the author paid them or not is also a good question. I would think that the company should be paying the author for product placement, especially if the author is a famous one.

Use Her Name said:

Isn't this more of a "fair use" copy-right question, the Warhol Soup Can thing? While brand names have been used for many decades in fiction, whether the author paid them or not is also a good question. I would think that the company should be paying the author for product placement, especially if the author is a famous one.

Click to expand...

I think I've read that this has actually happened, like what they do in the Bond movies, but obviously to big names only.

I'm actually also in a similar situation. In my WIP, my MC is a celebrity athlete. He endorses a number of brand name products, and it sounds silly to create my own BING brand of sport wears, or make him drive a BING car, etc. In fact this guy even interacts with real life celebrities. He has met with Kofi Annan and is amazed that the UN chief knows him. Naturally, I haven't said anything bad about them. They all have nice or moderate personalities. Those I dig into their minds, I make up names and characters.

But now I'm starting to worry.

Bingain said:

I think I've read that this has actually happened, like what they do in the Bond movies, but obviously to big names only.

I'm actually also in a similar situation. In my WIP, my MC is a celebrity athlete. He endorses a number of brand name products, and it sounds silly to create my own BING brand of sport wears, or make him drive a BING car, etc. In fact this guy even interacts with real life celebrities. He has met with Kofi Annan and is amazed that the UN chief knows him. Naturally, I haven't said anything bad about them. They all have nice or moderate personalities. Those I dig into their minds, I make up names and characters.

But now I'm starting to worry.

Click to expand...

Here is a good link to a very good article about using trademarks.
http://www.publaw.com/fairusetrade.html

Incidental use seems to be just mentioning of some trademark, whereas what you suggest is bit more. I'm sure you would need a lawyer on that. It could be prudent to have a brand "created."

Bingain said:

I think I've read that this has actually happened, like what they do in the Bond movies, but obviously to big names only.

I'm actually also in a similar situation. In my WIP, my MC is a celebrity athlete. He endorses a number of brand name products, and it sounds silly to create my own BING brand of sport wears, or make him drive a BING car, etc. In fact this guy even interacts with real life celebrities. He has met with Kofi Annan and is amazed that the UN chief knows him. Naturally, I haven't said anything bad about them. They all have nice or moderate personalities. Those I dig into their minds, I make up names and characters.

But now I'm starting to worry.

Click to expand...

There's nothing to worry about. As long as you don't say anything defamatory, you can talk about public figures and commercial enterprises all you want.

IceCreamEmpress said:

There's nothing to worry about. As long as you don't say anything defamatory, you can talk about public figures and commercial enterprises all you want.

Click to expand...

That's what I've gathered as well. You have to draw the line at quoting songs though, right?

I have a Kenny Chesney song I desperately want to quote in my novel. The song just fits so perfectly with the story, and in fact it was the inspiration for how my novel is going to end. I've emailed the record label and so far haven't heard anything back.

Any other ideas?

AC, I'm not sure, but I think the publisher makes that request?

LaceWing said:

AC, I'm not sure, but I think the publisher makes that request?

Click to expand...

So I should just go with it and not worry about it yet?

goatpiper said:

I have a moment in my WIP where a child looks at his Star Wars sheets - it's somewhat integral, but I need to know if mentioning a real-world trapping in passing is okay? Is any mention of something like that (like Coca Cola, for example) need to be cleared or gotten permission for when a novel is published?

Click to expand...

Tarantino does it. Lots of folks do it.

Don't worry about it. Your editor/publisher will help you when permissions are needed.

Quoting songs, due to weird copyright guidelines that handle music differently from anything else, is usually pretty costly and a legal pain in the butt. I'd only do it if I knew the band personally. Here's a post from Neil Gaiman about how he got around that in a creative and memorable way and managed to put the song in without putting the lyrics in:
http://journal.neilgaiman.com/2005/06/fathers-day-thoughts.asp

Let me tell you, reading the passage he's talking about there, I not only didn't notice a thing wrong with it but actually thought it was very clever and sweet -- with no idea that the prose had anything to do with copyright at all. And I'm totally going to steal that technique in the instance that I really, really need to reference a popular song.

Mentioning trademarks, on the other hand, is standard. I can count at least three books off the top of my head in which Star Wars is mentioned. The James Bond books are riddled with car, watch, alcohol and clothing brands -- like at least two a page. Ian Fleming certainly didn't go writing all those companies. In movies it's weird because you have to have a contract to show these things off, but writing can do whatever it likes. Though there's a very interesting caveat on this page:

http://www.copylaw.com/new_articles/trademrk.html#usage

Summarized: When using a trademark, attach a generic term. The example used: the character put on his Ray-Ban sunglasses, not his Ray-Bans. This is to avoid leading to the genericization of trademarks (look up that phrase on Wikipedia if you don't know what I'm talking about.)

In practice, I see this caveat ignored frequently. Your editor will know whether it's important in the particular case.

Movie tie-in products are clearly not generic for the item (nobody would ever use "Star Wars" as a shorthand for bedding, not unless they had a REALLY eccentric sex-life) so you don't need to worry about that there.

Edit: Oh, and satire is also protected. For example if you had people drinking Coke and turning into brain-eating zombies, it wouldn't be easily confused for a legitimate criticism of the product, though Coca-Cola is enough of a giant that if I were doing it I'd call the soda Poke or Cope or something.

Another thread I turned up: http://forum.freeadvice.com/showthread.php?t=316109

Real world stuff has the oddest impact of all in my story, where the evil Warlord of the West in the magical fantasy land that my ordinary teenage MC falls into while rolling out of bed turns out to be none other than world infamous dictator and world-conqueror, <removed to keep surprise intact>

But, still, as long as you're not saying anything too bad about people alive to complain about it, you should be okay.

ACEnders said:

That's what I've gathered as well. You have to draw the line at quoting songs though, right?

Click to expand...

Yes, because those are intellectual properties of their own, and because songs are so short, quotations from them are invariably going to be too long (as a percentage of total length) to meet "fair use" guidelines.

Although you can secure your own permission, it's usually something the publisher does (as LaceWing says). Be ready to change it if the publisher can't secure permission (or can't do it at a price they find acceptable).

Thanks, AJ Luxton, for that link to the Neil Gaiman post on the topic.

There is, of course, a long thread on copyright issues elsewhere (by Medievalist, I believe).

But that's irrelevant to the issue of using brand names in stories. You can do that to your heart's content--though you may get a letter from Coca-Cola® or Kleenex® suggesting that you need to put a registered trademark dingus by the name.

Mind you, they don't really care if you put "®" there or not. But their lawyers need to write the letter to show that they are definding their trademark. If you don't show evidence that you have defended the trademark, you can lose it. This happened to a product called Aspirin; the trademark was defended against infringement.

But you can refer to the products as much as you like, and you need not present them in a positive light, either. Check out the novel American Psychopath: Easton-Ellis probably has more brand names in the book than verbs. And these products are being used, and praised, by a sociopathic murderer.

You have a great deal of latitude in free speech in the US, and speech in art is even more protected. If you suggest with a straight face in a nonfiction book that Coke® causes autism, you may have a problem; but suggest in a novel that Coke® turns children into giant leeches and you are probably safe (not only is it clearly labeled "fiction," but it is arguably being used in a satirical fashion, and is anyway an unbelievable claim).

Check out the book Mondo Barbie (a pretty funny book, by the way). Barbie is a trademark of Mattel--but the writers of the stories in the collection do things with Barbie that Mattel probably dislikes. [/FONT]

Mattel is somewhat litigious--they have gone after a few websites, and after the song "Barbie Girl" by the band Aqua. The latter case went to the Supreme Court, and Mattel lost.

Last time I checked, Mattel still has a suit pending against ChinaBarbie.com, which was a porn site using the Barbie image and name in a way Mattel disliked. Mattel may have decided that, given the general attitudes of the Bush Administration on freedom of speech and on pornography, that the time was ripe to try again.

But insofar as I know, even Mattel hasn't been audacious enough to attack the use of Barbie in print media.

There is nothing you can do to assure you will never be sued for something you write in a novel. You can be sued for almost anything you say. I'm sure I could find grounds for suing you (probably unsuccessfully) for calling yourself "Goatpiper."

But I'd have no hesitation about writing, as Maryn said, "Bobby looked at his Star Wars sheets, faded and pilling after only three launderings."[/SIZE]

David I said:

This happened to a product called Aspirin; the trademark was defended against infringement.

Click to expand...

You mean "not defended," I think, but that actually isn't the case with aspirin; Bayer lost the US trademark (along with the trademark for heroin) as part of the confiscation of German assets following World War I.

An example of a trademark that was lost because of lack of defense is "zipper".

IceCreamEmpress said:

You mean "not defended," I think, but that actually isn't the case with aspirin; Bayer lost the US trademark (along with the trademark for heroin) as part of the confiscation of German assets following World War I."

Click to expand...

I'll be damned. That seems to be correct--although books I've read frequently use the example of "Aspirin" to explain the Coca-Cola Company's relentless letters from their legal department.

Thanks for the correction! I plan on winning some bar bets with that fact.

I think, with respect to goatpiper's Star Wars sheets, there is one more point. AFAIK, Star war items/toys are made by other (and numerous) manufacturers under licenses. Whoever owns the Star War trademark doesn't make them. There MAY also be multiple manufacturers making a certain item. So while maker A may make high quality sheets, maker B may produce a sheet that will fade after the first laundering.

Anyway, thank you to everyone for the responses, guides, and links. I have also went through the FAQ section about trademark/copyright issues.

I don't think my use of certain brand names, like craving for Dryers ice-cream, staying at the Four Seasons suite, traveling on a NetJets private plane, having a pre-approved line of credit from Wells Fargo Bank, etc will ever pose any problem. Some of the real world celebrities likely won't cause a problem either. For example, Kofi Annan actually had gone to the event where I have my MC met him, and there were like a thousand celebrities attending that event. I'll be damned if Mr. Annan could remember everyone he had talked to.

I'll probably have to change the names of some famous people who have closer relationships with my MC, even though there's no defamatory descriptions on them whatsoever.

What I'm most bothered by are my MC's endorsements. Say, he endorses Adidas, Gap, BMW, etc, and in the story he'll have some relationships (liaison, getting signed, or being dropped) by these companies. I may be able to create my own line of BING clothing products instead of say, Gap, but autos and big name sportswear are tough to be convincing without pointing at a certain high profile brands.

Thoughts and advises?


Bing the troubled mind