It’s Wednesday and time for another installment of Ask #PubLaw. This summer I’m running a special series with mystery author and publishing attorney Susan Spann. Writers are invited to leave their questions in the comments and Susan will answer them in a post! Also, during the month of June, leave a comment for a chance to win a signed copy of Susan’s novel CLAWS OF THE CAT.
Is it okay to refer to pop culture symbols, such as the Terminator or Starbucks coffee, in a novel?
The short answer? Yes, if the trademark reference is just a reference and carries no possibility of defamation or degradation of the mark.
The longer answer? Read on:
Generally speaking, it’s fine to reference a trademark (such as “Starbucks”) in a novel if the use is “fair use” – for example, if you’re talking about a character’s coffee preference or the place where a detective waits out a storm while trailing a suspect. You can refer to other trademarks in similar ways. For example: “Nothing stopped Bradley the penguin once he stepped into the boxing ring. Every time an opponent knocked him down, he popped back up like a hypercaffeinated Weeble.” (Extra points if you remember Weebles. If not: http://en.wikipedia.org/wiki/Weeble.)
POTENTIAL ISSUES ARISE, however, when that frappucino is the delivery system for a fatal dose of arsenic, or when those Weebles come to life and murder innocent children. In other words, when the author uses trademarks and cultural icons in ways that might defame the company or bring the mark itself into disrepute. At that point, an author risks a defamation claim by the trademark holder or the creator of the cultural icon referenced.
Business defamation can be hard to prove, but when authors want a poisoned latte or similar plot device, I recommend an alternative: making up a fictitious “brand” to cause the mayhem. The fictitious company protects the author (imaginary friends very seldom sue us), and also avoid “brand-name distraction” that some readers find a problem and not an asset.
You can either make the fictitious company a “straight man” or create a humorous reference, something like “The 2018 Auto-Vein Caffeinated Drip, invented by a no-name company out of Duluth, which put an end to the siren song of Seattle’s coffee empires.” The intelligent reader “gets” the joke — but note that you didn’t have to name Starbucks to get your point across. This has two important benefits. First, there’s no question of trademark misuse or business defamation. Second, and more importantly, your readers feel smart because they “got” the inside joke. Readers like a book that makes them feel smart or special–when they’re onto your inside jokes. Give a clue that lets the reader think, “AHA! SHE MEANS STARBUCKS!!” and you’ve just upped the reader’s interest level and also layered your story in interesting ways.
So: the short answer? Yes, you can do it – but you run a risk if you use a brand in ways the owner or readers might interpret as defamation. In those cases, you’re definitely better off to create an imaginary stand-in.
Thank you to Heather for letting me join you here for Ask #PubLaw today!
LEAVE A COMMENT & WIN
Leave a comment or any Ask #PubLaw post on this blog during June 2013, you’ll be entered in a drawing to WIN a signed ARC of my upcoming mystery novel, CLAWS OF THE CAT (Minotaur, July 16, 2013)!
[And the contest legalese-sorry, can’t help it, I’m a lawyer: One entry per household per week. Total of one prize will be awarded, by random drawing, from all eligible comments across all Ask #PubLaw posts in the month of June 2013. Contest ends at midnight Pacific Time, June 30, 2013. Open to residents of the U.S. and Canada only. Odds of winning vary. No purchase necessary. Void where prohibited by law.
If you’re still with me – please feel free to ask your publishing questions in the comments (questions on all publishing and intellectual property issues are welcome!). I’ll be delighted to answer them in future Ask #PubLaw posts!
ABOUT SUSAN SPANN
Susan is a publishing attorney and historical mystery author. Her debut novel CLAWS OF THE CAT (Minotaur) releases July 16, 2013. When not writing or representing clients, Susan enjoys traditional archery, martial arts, horseback riding, online gaming, and raising seahorses and rare corals in her highly distracting marine aquarium. She still consumes books – almost as avidly as spicy Thai dinners. Susan lives in Sacramento with her husband, son, three cats, one bird, and a multitude of assorted aquatic creatures. She is a member of Mystery Writers of America, the Historical Novel Society and the Rocky Mountain Fiction Writers’ Association and is represented by literary agent Sandra Bond of Bond Literary Agency.
For more information, contact her at her website HERE or on Twitter.
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About Heather Webb
Heather’s historical novels have received national starred reviews, been featured in print media including the New York Times and the Wall Street Journal, and have been chosen as a Goodreads Top Pick in 2015. To date, her books have sold in a dozen countries. She enjoys helping other writers and may often be found tweeting helpful links, writing craft articles, or speaking about the industry and her love of books at conferences and retreats. For more information, see her AUTHOR page.
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Great question, and a great answer. Let me throw this wrench into the works: in a work of fiction where the main character is a sportswriter, is it OK to use real teams/players/game results from the time if other parts of the story incorporate actual people and events? Or would it just be a case where licensing would need to be requested?
Great question, Chris! I’ll let the expert weigh in!
So how about obvious satirical parody names like “Charbucks” or “Starburnt”?
Loved the point about making the reader feel smart–very clever indeed, and it’s true! Because as I reader I’ve felt that pride. Going to remember that as a writer. 😉 I think you have a wonderful summer series–this was such an interesting question and one I’m sure many a writer wonders over.
As a side note, thank you so much, Susan, for the ARC! I can’t wait to read it, and I loved that it was signed. It made me feel special. I’m in the middle of beta-reading for a friend, and I have another after that but I snuck a peek at the first page and the writing is awesome.
Heather, just wanna say–you rock, as always.
Cheers.
Thank you, D.D. 🙂 xo
I’m glad you liked the ARC, D.D.! I was delighted to send it, and I hope you enjoy the book. Chris and Daven, thank you for the questions – I’ll get answers to you in the next two weeks!