Legal question - use of real organization

For these type of questions I would ask a lawyer who specializes in this sort of thing and give them specifics.
I thought I was fine using a different spelling of a name that sounded the same for a character with similar qualities to a real person and my editor had me change the name. She discussed it with the lawyer on staff.
You could change the name & location and make it OK.

When in doubt, use a fictional version of the real place.

A lawyer's job is to minimize risk (or at least set out the risks for the client to decide which risks he/she is willing to take), and while there may be minimal risk in mentioning a real place as a simple background if you're not saying anything bad about it that might be false (truth is an absolute defense to libel), there is a small amount of risk, b/c what you may not consider bad, the owner might consider negative and damaging to his business (renting the building to tenants).

So, to avoid all risk, make the location fictional.

On a practical level, if the location isn't key to the story (e.g., the solution to a mystery is dependent on a real-life location and the sleuth knowing the real-life location, so you really need a real place), then using a real place is often a lose-lose situation. People unfamiliar with the location won't care that it's a real place, and people who ARE familiar with the location will nitpick your description to death and not be satisfied, no matter how accurate you are.

JD, not giving individual legal advice, just general information.

There is no real reason not to use the existing place from a legal standpoint.

Unless your location is the Flatiron Building. The owners have tried to copyright it and trademark it and are prickly about how it is used, viz:

http://query.nytimes.com/gst/fullpage.html?res=9E07E4D71039F937A15753C1A96F958260

-- Josh

Coyote Man said:

Unless your location is the Flatiron Building. The owners have tried to copyright it and trademark it and are prickly about how it is used, viz:

http://query.nytimes.com/gst/fullpage.html?res=9E07E4D71039F937A15753C1A96F958260

-- Josh

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I just called my little brother; he worked for Newmark as a commercial broker while the Flatiron Partners case was going on, so I asked him if he knew anything. He did:

1) Newmark (the owner of the FI building) lost the suit, and spent a lot of money in the process. The case was being appealed when it was settled.
2) The settlement was for next to nothing. It was more important to them that the PR would say "Flatiron Partners has agreed to license the image of the building from the owners" than it was to get money that they likely wouldn't have won anyway. If Newmark lost the appeal, the would have made themselves look even worse than they already did.

Now, none of this has anything whatsoever to do with the original question of this thread. I'm just following up because I realize how hard it is for most people to understand legal principles. In this thread, and others I've seen, a few people say "Watch out" when there is no reason whatsoever to watch out. The sensationalist stories about lawsuits that seem to pop up all the time are doing just what they are designed to do; scare the average person away from the legal system. Don't believe the crap.

For all the ugly flaws of this nation (usa), we DO have an incredible system of intellectual property protection - it has allowed the emergence of more creative works than any other system in any other culture ever, and we should all be grateful that our early legislators (and the english who created the framework) did such a good job.

Let me further distinguish the Flatiron case from what happens when a writer uses a real location in their work:

The Flatiron case was really a trademark infringement case. Something as distinctive as a building CAN BE USED in a confusing way by someone peddling something else, and sometimes the court will stop that use. For instance, let's say I own the Empire State Building, and Joey Bagadonuts starts printing condoms with an image of the building on them, selling them at his pretzel cart in front of the building alongside his salty treats and sodas. That's a trademark violation, because Joey's use of the mark tends to confuse ordinary consumers. That's how trademark works.

Buildings can be copyrighted too, but it's different: the actual architecture of the buildings is a copyright; that means another architect can't draw and a builder can't build something that is obviously the same or very similar. It has nothing to do with photographs, paintings, or written descriptions of the building.

For instance, let's say I own the Empire State Building, and Joey Bagadonuts starts printing condoms with an image of the building on them .... That's a trademark violation, because Joey's use of the mark tends to confuse ordinary consumers.

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But if you own the XYZ Building, and an author writes (falsely) in his book that the owner of the XYZ Building (a real building) encourages drugdealers to congregate in his building, and as a result of that, you, the building's owner are unable to rent space in the building, b/c prospective tenants are afraid of the purported drug dealers, wouldn't you consider that libel?

Sure, the risks are small in the circumstances set out by the original poster, but if I were to advise a client that there was no risk at all, and then the risk actually occurred and the client was sued (regardless of whether the suit was successful), I would have to be prepared to face a malpractice action myself.

JD, risk-averse by training and natural tendency, but also not giving individual legal advice here, just general information.

JanDarby said:

But if you own the XYZ Building, and an author writes (falsely) in his book that the owner of the XYZ Building (a real building) encourages drugdealers to congregate in his building, and as a result of that, you, the building's owner are unable to rent space in the building, b/c prospective tenants are afraid of the purported drug dealers, wouldn't you consider that libel?

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I don't think your facts indicate libel. Assuming that the novel is clearly characterized as fiction ("a novel by...") it just doesn't seem to meet the elements. That being said, I would never advise a client to write what you envision. It's good to be risk-averse, at least to a point.

Clean Slate said:

I don't think your facts indicate libel. Assuming that the novel is clearly characterized as fiction ("a novel by...") it just doesn't seem to meet the elements. That being said, I would never advise a client to write what you envision. It's good to be risk-averse, at least to a point.

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This is a common misconception. It has gotten more than one writer in deep (six-figures-and-up) trouble.

Merely labelling something an "opinion," or casting the work as "fiction," does not foreclose a libel claim. It may make a libel claim somewhat harder to win.

The particular example used — the building described as a druggie safe-harbor with (misdesignated) owner permission — is probably closer to business disparagement than to libel. That's a technical difference that varies substantially from jurisdiction to jurisdiction. The one thing that the business disparagement theory does that makes it attractive is that it evades the "absolute malice" standard that applies to libel concerning public figures.

Look at it this way: If Dick Wolf, who runs Law & Order, finds it necessary to constantly rename prominent New York businesses and (private) landmarks — consider the fictional "Hudson University," which includes elements of NYU, CCNY, and Yeshiva — isn't that a big caution on using real business names as the location of disreputable events?

Jaws said:

This is a common misconception. It has gotten more than one writer in deep (six-figures-and-up) trouble.

Merely labelling something an "opinion," or casting the work as "fiction," does not foreclose a libel claim. It may make a libel claim somewhat harder to win.

The particular example used — the building described as a druggie safe-harbor with (misdesignated) owner permission — is probably closer to business disparagement than to libel. That's a technical difference that varies substantially from jurisdiction to jurisdiction. The one thing that the business disparagement theory does that makes it attractive is that it evades the "absolute malice" standard that applies to libel concerning public figures.

Look at it this way: If Dick Wolf, who runs Law & Order, finds it necessary to constantly rename prominent New York businesses and (private) landmarks — consider the fictional "Hudson University," which includes elements of NYU, CCNY, and Yeshiva — isn't that a big caution on using real business names as the location of disreputable events?

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While I certainly understand that labelling a work as fiction does not preclude a libel claim, I still don't think the building owner above has a solid claim of damages. I'm certainly not advising anyone to do anything, but as a legal issue the above example is a tough case for the prospective plaintiff, largely because it's a novel. That's what my comment about fiction addresses: the difficulty of the building owner in its proof of damages.

I also don't know that I'd take too much caution from a mass-market TV show, or compare the L & O writer or his medium to a novelist's. If the subject of a novel needs to be real for any reason, it's do-able. Many writers ridiculous fear defamation suits based on silly sensationalist stories, not reality.

Many writers ridiculous fear defamation suits based on silly sensationalist stories, not reality.

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Does it matter what is reality or what a writer fears? When pitching a book to an agent or publisher, the only thing that matters is what they think. And if publishers and agents believe that naming private companies, buildings, institutions, etc., in a novel might draw someone's legal wrath, they won't chance it.

Reluctant Artist is demonstrating common sense. If the name of a building or institution not critical to your story, don't bother. You will eliminate a potential red flag from your manuscript, and further increase its chances of acceptance.

-- Josh

I'm a lawyer: in my novel, I changed the name of most places after contacting the owners of a bar in Havana to ask for permission. I was referred to a US attorney who advised that I could use it if it didn't involve violence/abuse or characters who might in any way harm the reputation of the brand. Since my characters were a hooker and an accused murderer, made sense to change the name. I did NOT do so, however, with prominent Cuban politicians, even though I fictionalized their discussions. Being a public figure, and in the public eye, changes a lot of what would be a concern in a private enterprise situation -- I was careful not to defame them, but certainly used them, much as Philip Kerr did in his great book about JFK's assassination where he took well-known figures and plunked them into his fiction as part of the story.

Coyote Man said:

If the name of a building or institution not critical to your story, don't bother. You will eliminate a potential red flag from your manuscript, and further increase its chances of acceptance.

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This. The first question you need to answer, objectively, is Why do I need to use this actual place and identity? If your answer amounts to "Because I want to", it's the wrong answer. It needs to matter to your projected reading audience. If it doesn't, don't use it; invent something fictitious that serves the necessary purpose.

I've yet to read a novel set in New York that didn't use real buildings. Common sense applies, but how many fictional crimes have taken place in the Empire State Building? How man use real organizations such as the C.I.A.?

My experience is that writers get in trouble only when they ask for permission. How in their right mind would say yes?

Dangerous to proceed without permission, though, particularly in the litigious U.S.A.

I'm on the side of 'change it' if you don't really need it. If you need it, and there's any chance of someone claiming you damaged the reputation of their business, you'd best have permission. Or a really good lawyer .