Can you use a professional sports team as a character in a piece of fiction?
December 19, 2009 4:45 PM Subscribe
Would it be considered "fair use" to pen a satirical children's book based on a professional sports team? For instance, "How The Yankees Stole Christmas" or something similar. (That's not the title I have in mind, but it gets the point across.)
I guess it just boils down to whether or not it's legal to use a generalized concept of a sports team in a fictional work. Thanks!
I guess it just boils down to whether or not it's legal to use a generalized concept of a sports team in a fictional work. Thanks!
"Fair use" doesn't apply; this doesn't have anything to do with copyright.
It's a question of use of trademark, and the issue I'd be concerned with is if they'd be entitled to royalties for the use of their trademarks. IANAL but my guess would be "yes". If you sold your book without talking to them first, you'd be doing exactly the same thing as the folks who sell bootleg shirts and hats with the Yankee logo on it.
The rules for trademarks are entirely different than for copyright. "Just a joke" doesn't excuse unlicensed use of trademarks, for instance.
Usually it comes down to the question of brand dilution. Does your use of their trademark degrade the value of their brand, or confuse people about what is and is not their official products? Looks like the answer is "yes" in your case, which means they could sue you.
Of course, they can sue anyway, and the Yankee organization has a lot more money for lawyers than you do. I would say that before you do this, you should consult an IP lawyer. But forget about "fair use"; it has nothing to do with this.
posted by Chocolate Pickle at 5:12 PM on December 19, 2009
It's a question of use of trademark, and the issue I'd be concerned with is if they'd be entitled to royalties for the use of their trademarks. IANAL but my guess would be "yes". If you sold your book without talking to them first, you'd be doing exactly the same thing as the folks who sell bootleg shirts and hats with the Yankee logo on it.
The rules for trademarks are entirely different than for copyright. "Just a joke" doesn't excuse unlicensed use of trademarks, for instance.
Usually it comes down to the question of brand dilution. Does your use of their trademark degrade the value of their brand, or confuse people about what is and is not their official products? Looks like the answer is "yes" in your case, which means they could sue you.
Of course, they can sue anyway, and the Yankee organization has a lot more money for lawyers than you do. I would say that before you do this, you should consult an IP lawyer. But forget about "fair use"; it has nothing to do with this.
posted by Chocolate Pickle at 5:12 PM on December 19, 2009
Why not use the Charleston Confederates as your mythical team instead of the NY Yankees? No such team, so far as I know, so you wouldn't be infringing anyone's trademark.
posted by Chocolate Pickle at 5:18 PM on December 19, 2009
posted by Chocolate Pickle at 5:18 PM on December 19, 2009
Or the New Amsterdamn Swampies. With famous infielders like Lalex Lodriguez... Taking a cue from that SNL sketch with Presidential Candidate Teve Torbes...
posted by CarlRossi at 5:25 PM on December 19, 2009
posted by CarlRossi at 5:25 PM on December 19, 2009
Interesting response from NOLO: they say it’s risky to put the sports team on your cover or in your title without permission, but that you’re free to center your plot around a real team.
posted by Kirklander at 6:54 PM on December 19, 2009
posted by Kirklander at 6:54 PM on December 19, 2009
Ironic that you use the Yankees as an example. There was a big thing a few weeks back where they gave some fan blogs (note that these are blogs that are very pro-Yankees) the cease-and-desist order. Here's one. So I'd guess they'd be happy to sue over their mark if it's used in a negative manner. Now, if they actually have a legal leg to stand on is another matter, but you certainly could get hassled.
posted by hatsforbats at 8:16 PM on December 19, 2009
posted by hatsforbats at 8:16 PM on December 19, 2009
The answer to "Can you use a professional sports team in a piece of fiction?" is "of course you can."
There's a lot of confusion going on, and that makes sense because this issue is complicated and not all cut and dried. The NOLO link is actually a pretty good one. But let's be clear:
Yes, this is definitely (mostly) a trademark issue, not a copyright one, so don't get hung up on "fair use."
One of the most important parts of trademark is that you're not supposed to be able to cash in on someone else's name. Are you using the Yankees simply because you think that will help sell a lot of books?
Another important part of trademark (and alluded to above) is that you're not supposed to be able to dilute someone else's name. You'd want to avoid that, too. It'll be hard, but having the team name in the title probably isn't helping you.
I don't know exactly what kind of children's book you're planning, but if you're including illustrations with any official logos, you are inviting a great deal of complications. If you're including a nice hand-drawing of a memory from your childhood where you and your father are in the stands watching a game, and some of the players happen to have the intersected NY on their hat, you're fine. If you're doing anything else, you're probably not.
If you were writing a critical expose showing how the Yankees ruined baseball, you'd be fine. But you're not.
The reference to the blogs is not especially relevant in illustrating anything having to do with the law, but I guess it is relevant to the extent it shows how litigious MLB can be.
I linked above to two works of fiction (related to each other) that actually are specific works of satire that widely and continuously reference two MLB teams (one of them in the titles of both works). I did this because they're the closest things I could think of to what you're trying to accomplish. I'm 99% sure both were initially released without any blessing from MLB. Talking about the New York Yankees is not the problem.
The problem is that you're using their trademark in ways they probably won't like, which means if they get wind of it and happen to care they'll send a cease-and-desist note. If you ignore them and still care, they'll send a more threatening letter, and then maybe actually sue you. At this point, it still doesn't really matter who's actually correct with regards to the law. In fact, if you only used the Yankees name (albeit over and over) and not any logos or other Yankees-owned or MLB-owned marks, you might have a great chance in court. But the only way you'll get there is if the publishing house that owns your book has had its legal team look at the issue and determine it's worth the money. Which brings me to the obvious conclusion.
If you seriously are writing a book, this is a question for the publishing house that would be putting the book out. They're the ones with a financial stake in it. If you are just planning on putting someone online or self-publishing or something, then your hope is that MLB doesn't find out or care because you're small potatoes.
posted by aswego at 6:40 AM on December 20, 2009
There's a lot of confusion going on, and that makes sense because this issue is complicated and not all cut and dried. The NOLO link is actually a pretty good one. But let's be clear:
Yes, this is definitely (mostly) a trademark issue, not a copyright one, so don't get hung up on "fair use."
One of the most important parts of trademark is that you're not supposed to be able to cash in on someone else's name. Are you using the Yankees simply because you think that will help sell a lot of books?
Another important part of trademark (and alluded to above) is that you're not supposed to be able to dilute someone else's name. You'd want to avoid that, too. It'll be hard, but having the team name in the title probably isn't helping you.
I don't know exactly what kind of children's book you're planning, but if you're including illustrations with any official logos, you are inviting a great deal of complications. If you're including a nice hand-drawing of a memory from your childhood where you and your father are in the stands watching a game, and some of the players happen to have the intersected NY on their hat, you're fine. If you're doing anything else, you're probably not.
If you were writing a critical expose showing how the Yankees ruined baseball, you'd be fine. But you're not.
The reference to the blogs is not especially relevant in illustrating anything having to do with the law, but I guess it is relevant to the extent it shows how litigious MLB can be.
I linked above to two works of fiction (related to each other) that actually are specific works of satire that widely and continuously reference two MLB teams (one of them in the titles of both works). I did this because they're the closest things I could think of to what you're trying to accomplish. I'm 99% sure both were initially released without any blessing from MLB. Talking about the New York Yankees is not the problem.
The problem is that you're using their trademark in ways they probably won't like, which means if they get wind of it and happen to care they'll send a cease-and-desist note. If you ignore them and still care, they'll send a more threatening letter, and then maybe actually sue you. At this point, it still doesn't really matter who's actually correct with regards to the law. In fact, if you only used the Yankees name (albeit over and over) and not any logos or other Yankees-owned or MLB-owned marks, you might have a great chance in court. But the only way you'll get there is if the publishing house that owns your book has had its legal team look at the issue and determine it's worth the money. Which brings me to the obvious conclusion.
If you seriously are writing a book, this is a question for the publishing house that would be putting the book out. They're the ones with a financial stake in it. If you are just planning on putting someone online or self-publishing or something, then your hope is that MLB doesn't find out or care because you're small potatoes.
posted by aswego at 6:40 AM on December 20, 2009
aswego makes a good point. I'm not sure if it exactly tracks, but it could be the difference between fiction and nonfiction. The newspaper can print a editorial cartoon of The Mouse doing unspeakable things to a competitor, because it is nonfiction and talking about the people involved with The Mouse, Inc. But publishing a comic strip where The Mouse (the character) is used as a character would not work out so well.
The other thing to consider would be doing the piece in concert with The Yankees. Maybe they think the idea is cool and would be willing to work out a deal. You make more cash because you get to use their trademark to sell books, they make more money by being able to leverage their trademark into another marketplace.
posted by gjc at 10:22 AM on December 20, 2009
The other thing to consider would be doing the piece in concert with The Yankees. Maybe they think the idea is cool and would be willing to work out a deal. You make more cash because you get to use their trademark to sell books, they make more money by being able to leverage their trademark into another marketplace.
posted by gjc at 10:22 AM on December 20, 2009
This thread is closed to new comments.
http://en.wikipedia.org/wiki/Damn_Yankees
posted by aswego at 4:58 PM on December 19, 2009 [1 favorite]