Referencing pop culture in fictional work

October 11, 2005 2:02 PM

When writing a strictly fictional story, what precautions should one take when referencing real items (e.g. songs, websites, fast food chains, etc.)?

For instance, if my main character were listening to Clinic on his iPod while surfing MetaFilter and Kottke at the local Starbucks, would I have to contact Clinic, Apple, Mathowie, Jason Kottke, and Starbucks to ask permission to mention their names? In these litigious times, it seems like one would want to cover his or her hypothetical ass, but where do you draw the line? I think by using real pop culture references an author can lend an air of realism to his or her story, but if every cultural device has to be checked and re-checked, who wants to waste that kind of time?

posted by bjork24 to media & arts (20 comments total)

I believe that's fair use, though I can think of plenty of times where a company has excized references from pop culture.
You might also want to note that your paragraph sounds like the recipe for a boring novel.
posted by klangklangston at 2:04 PM on October 11, 2005

I would say that if the references are just 'there', then it's fair use, but if those references are uncomplimentary, then you may find that the owners of the names get stroppy - and even if that's fair use, if the owner decides to get litigious on you, they'll spend the money to bust you. In cases like that, he who spends more usually wins, and I don't think you'd want to get in a spending fight with Apple.
posted by Dipsomaniac at 2:07 PM on October 11, 2005

It's all fair use, except for reprinting copyrighted music lyrics, in which case you typically need permission from the publisher. This opinion comes to you from my observations of the copyright sections of paperbacks.

i.e. lyrics from "I Want To Be A Lifeguard," on p. 24, appear courtesy of BMI...

Company names? Just cut loose.
posted by johngoren at 2:13 PM on October 11, 2005

I've read a lot of books in which the author (Neil Stephenson comes to mind) makes really thinly veild allusions to real world entities for comic effect. I always find that amusing.
posted by phrontist at 2:13 PM on October 11, 2005

(Oh, and slightly OT, but Rocko's Modern Life did this all the time: Chokey Chicken!)
posted by phrontist at 2:16 PM on October 11, 2005

You're in safe territory even if you write a novel naming Wal-Mart as a citadel of Al Qaeda. Where you'd run into trouble would be if you were printing false and defamatory claims about it, under the guise of non-fiction.
posted by johngoren at 2:24 PM on October 11, 2005

So what you're all basically saying is that it's alright for the main character to have wild sex with Bjork? Would that still be within the bounds of fair use? I know that doesn't sound serious, but it is.
posted by bjork24 at 2:42 PM on October 11, 2005

Oh yes. I, too, will say that it is alright ;)
posted by flavor at 3:06 PM on October 11, 2005

Joe Quenan did an article (part of a series, I think. Or maybe it was a chapter in a book.) about a seminar he attended. The teacher was some sort of guru in the arena of cheaply made films. He covered the dos and don'ts of using identifiable commercial products in films by saying, simply, "Don't have a character kill someone with a coke can." In other words, don't portray the product in a manner that might cause people to not want to buy it and you won't have any legal problems.

Now, whether the same would hold for novel writers, I don't know.
posted by Clay201 at 3:44 PM on October 11, 2005

I'm surprised no one's mentioned Jennifer Government, which mentions Nike, McDonald's, and any number of other corporations in a very unflattering way.
posted by WCityMike at 4:38 PM on October 11, 2005

One of the most daring examples of this I have read is Matt Ruff's hilarious Sewer, Gas and Electric. The story describes a (warning: spoiler RIGHT HERE) secret plot by none other than Walt Disney to create an army of animatronic genocidal Electric Servants whose mission is to eradicate blacks. Matt Ruff hasn't been sued into oblivion, so I'd say you're OK.

Also in SG&E there's a talking Ayn Rand lamp that's surely rankles the Objectivist minions.
posted by ldenneau at 4:49 PM on October 11, 2005

s/that's/that/; duh
posted by ldenneau at 4:51 PM on October 11, 2005

Follow-up on the Jennifer Government comment, from the author's website:

Getting Sued

People often ask how I get away with using real company names in my fiction. I'm not completely sure; all I know is I keep using real company names and they keep not suing me. But I can think of two possible explanations. One is that my novels are protected free speech, since they're clearly parodies and don't allege actual misdeeds. That is, when I use a real company name, it's just like using a real place name -- and the City of Los Angeles has yet to sue James Elroy. The other explanation is that I always use highly visible, brand-name companies, and suing a comedy writer would be terrible PR.

posted by WCityMike at 5:06 PM on October 11, 2005

Who was the guy who included a bunch of products in his books or stories and then sent bills to all the companies in the piece, asking to be paid for advertising them? He posted all the responses he got, most of which were just kind of puzzled. Good stuff.
posted by RustyBrooks at 5:31 PM on October 11, 2005

I think everyone's a little confused about "fair use".

"Fair use" is about using content from people's sites, books, music etc.

There's no such issue if you're just mentioning the name.
posted by AmbroseChapel at 6:01 PM on October 11, 2005

My rule in writing fiction is that I don't mention brand names of any sort, because I can't loathe the prevalence of advertising in our culture and refuse to contribute to it. If I need a product or company name, I make one up. This has the added benefit of keeping your work from dating as quickly.

I will reference actual movies, music, plays, books, poems, works of art, etc. You only need copyright to quote or reproduce the actual content.
posted by orange swan at 6:40 PM on October 11, 2005 [1 favorite has favorites]

Sigh.. should have been "because I loathe the prevalence of advertising" not that I can't loathe it.
posted by orange swan at 6:41 PM on October 11, 2005

RustyBrooks: that was Jim Munroe who referenced brand names in Everyone In Silico, and you can read the invoices and responses on his website.
posted by blue grama at 9:07 PM on October 11, 2005

The story describes a (warning: spoiler RIGHT HERE) secret plot by none other than Walt Disney to create an army of animatronic genocidal Electric Servants whose mission is to eradicate blacks.

That's nothing -- read the original L.A. Confidential. The giddily satirical main plot (wisely edited out for the film) concerned an unmistakable Disney figure who was, among other things, a Nazi and a pedophile.

bjork24, Ann Beattie began a trend of using pop culture references back in the 70s. It probably reached its apex in American Psycho, which seems at times to have whole paragraphs listing yuppie porn from Brooks Brothers to Sharper Image. It's really OK to make random references of the type you note in your post, though the suggestion of a sex scene with Bjork could be more problematic -- while celebrities are safe targets for parody, any serious use of her as a character might interfere with her publicity rights, so she could sue.

It's certainly possible to fall astray of product defamation laws (which some states have, but not federal). This was why Oprah was sued by the Texas beef producers. But this is more likely the more extended your usage. Having two characters meet for coffee in a Starbucks is no worry; having an entire novel set in a Starbucks might be problematic. Here the legal problem is trademark infringement, i.e. appearing to be an officially sanctioned extension of the product.
posted by dhartung at 12:44 AM on October 12, 2005

The Reece's Pieces which feature so prominently in the movie E.T. were originally M&Ms in the book. The company wouldn't give them permission to use M&Ms in the movie, and Reece's did. I'd say they lost out on that one...

I don't know what would have happened if they hadn't gotten permission first.
posted by tkolstee at 2:05 PM on October 12, 2005