What exactly is "fair use"?

September 7, 2009 7:16 PM

What are the legalities of mentioning copyrighted characters in a work of fiction?

I'm editing a novel for someone who has used well-known characters from several classic books as descriptors. They take the form of "they looked like [classic characters]" and "I had to wear my [character] t-shirt." This second one gets tricky, because it also carries over into trademark issues with character-related products that do exist. Does something like this require official permission from the copyright/trademark holders? (I'm guessing it does, but I want my ducks in a row when I tell her to change it)

Added wrinkle: what if the references are *slightly* incorrect (as in, a possibly intentional misspelling), but still close enough to be a clear reference to a specific character? Is this a loophole she could exploit if she really wanted to? Note, this is not my suggestion to her, but how it's presented in the text I've been given to edit.

posted by Eumachia L F to writing & language (13 answers total)

Titles, names, etc, are not protected by copyright.
posted by Cool Papa Bell at 7:21 PM on September 7, 2009 [2 favorites]

Copyright doesn't prevent mention. No effect at all.

Now trademark, on the other hand, could be a real issue. If the use of a trademarked character in a work of fiction helps to make that work sell, then the owner of the trademark would at the very least be entitled to royalties. But properly they are also entitled to prior consent, and if they don't get it and feel like being nasty, they could force a full recall of the work of fiction, as well as suing for all profits made on copies which can't be recalled.
posted by Chocolate Pickle at 7:22 PM on September 7, 2009

I am not your attorney. There is something called "nominative use" with regard to trademarks, which is sometimes called "nominative fair use." It is the trademark analog of "fair use" in copyright law. I am not opining as to whether it is applicable in your case.
posted by Conrad Cornelius o'Donald o'Dell at 7:36 PM on September 7, 2009

Copyright protects works against being copied, or against having derivative works produced from them. For instance, you can't expect to produce "Harry Potter, the Musical" without being sued. But referring to a book or its characters does not make it derivative of that book. I've heard that the estate of Sir Arthur Conan Doyle tried to prevent people writing other Sherlock Holmes books by claiming that Sherlock Holmes was their trademark. I don't know if that worked, but in any case they weren't trying to prevent people saying things like "he had a cocaine habit worse than Sherlock Holmes'" or "he was as sycophantic as Dr Watson". So if that's the sort of reference you want to make, I think you'll be OK. But, just to be on the safe side, I would avoid doing anything like this:

"The long, earnest boy looked like Harry Potter, especially the way his hair was combed over his forehead. He was carrying a pencil in an odd way, as if he were about to wave it in the air and shout an incantation. Behind him rose his old boarding school which looked rather like Hogwarts ...."
posted by Joe in Australia at 7:41 PM on September 7, 2009

You might also find Chilling Effects' fanfic FAQ helpful. Obviously your author isn't writing fanfic, but some of the issues may be similar.
posted by Conrad Cornelius o'Donald o'Dell at 7:49 PM on September 7, 2009

The (very non-legal) measuring stick I see applied to situations like this, academically at least, is that at some point society has to be able to assert concrete facts concerning commercial media. If I am writing a biography about Walt Disney, there shouldn't be a barrier to listing his works, or outlines of their storylines, or how one particular character might resemble some person from his life or what have you. This seems to follow into fiction as well, where I might reasonably assume a terrorist would wear a Mickey Mouse shirt to appear innocent--and write a story in which this happens without any undue legal liability.

Of course, anyone can sue for pretty much anything, it's just a matter of how far they will get in the court system. In this case, I do not think it is wise to unnecessarily restrict the speech of the writer solely to disallow frivolous lawsuits. That being said, I fancy myself a writer on occasion and may perhaps be biased against editors as an institution.
posted by Phyltre at 7:52 PM on September 7, 2009

Intentional misspellings won't provide any protection. If she wrote: "He looked like Captain Kerk" or "The kid wore his favorite Spyderman t-shirt", everyone would still know the references mean Kirk and Spiderman. There's no loophole there.

There is, as the others have pointed out, nominative use of character names, etc. Referring to a character wearing a Star Trek t-shirt falls under that concept as well.
posted by LOLAttorney2009 at 7:52 PM on September 7, 2009

I am not a lawyer. This seems pretty low-risk as long as said characters do not actually appear in the work, but are only mentioned. That said, bear in mind that anyone can sue you for anything. Even if it gets thrown out of court, it can still be a real hassle. Still, that's a risk you take publishing anything.
posted by kindall at 7:56 PM on September 7, 2009

I am not a lawyer, but I have published fiction that includes mentions of real businesses, organizations, products, and intellectual property. What the publishing house attorneys have said to me is that two key principles you don't want to run afoul of are (if I recall these terms correctly) implied endorsement and false light. Your character can wear a Mickey Mouse sweatshirt or work at Starbucks, but your book can't be called "Lose Weight with Starbucks Coffee the Disney Way!" without the permission of those corporate entities, which you won't get; your character can be a giant loser who works at McDonald's, but he can't be part of a secret plot by McDonald's to brainwash people by putting Xanax in the McFlurries.
posted by Sidhedevil at 8:13 PM on September 7, 2009

I wrote a humor book that referenced any number of trademarks. None of the editors at the publisher batted an eye at it. The only intellectual property issue is that I needed permission for any photographs I included, although in the end I went with drawings instead.
posted by lore at 9:38 PM on September 7, 2009

I'm reading Halting State by Charlie Stross and it mentions actually existing companies and trademarks whenever appropriate. And hell, Jennifer Government's villains are Nike executives.
posted by Pope Guilty at 12:26 AM on September 8, 2009

My understanding (from film and TV rather than writing) is that you're basically fine. However some context could get you in trouble; "He puked his guts out for the third time that day, certain that his Big Mac from the night before was to blame" as a tame example - essentially protraying a service or trade mark in a defamatory or negative light.
posted by sycophant at 2:28 AM on September 8, 2009

Thanks for the info everyone. This was very helpful.
posted by Eumachia L F at 3:54 AM on September 8, 2009