Monday, December 27, 2010

Can I Mention Brand Name Products in My Fiction?

Writers frequently ask whether they can mention brand name products and services in their fiction.  The answer is "yes," provided that you take some common sense precautions.  Indeed, if it were unlawful to include brand names in fiction, countless product references in Bret Easton Ellis's novel Glamorama would have been expurgated, and David Foster Wallace could never have described in Infinite Jest an alternative present where large corporations purchase naming rights to the calendar years (e.g., "Year of the Whopper," "Year of the Trial-Size Dove Bar," "Year of the Perdue Wonderchicken," "Year of the Depend Adult Undergarment," and "Year of Glad").

The four areas of law to consider in connection with brand names are "trademark infringement," "trademark dilution," "trademark tarnishment,"and "defamation."

A classic case of "trademark infringement" is the unauthorized use of a name in a way that creates a likelihood of confusion as to the origin of the goods or services.  For example, if you were the manufacturer of aluminum foil and decided to name your foil "Glad," the Glad Products Company, manufacturers of Glad plastic wrap and Glad trash bags would likely think your use of the term is an infringement.  Even if Glad Products Company doesn't manufacture aluminum foil, aluminum foil is sufficiently close to plastic wrap to create a likelihood that some shoppers would be confused as to whether your aluminum foil is manufactured, licensed, or endorsed by the makers of Glad plastic wrap.  Keeping this principle in mind, it is evident why fiction rarely gives rise to trademark claims.  When David Foster Wallace imagines a world in which Glad Products has bought naming rights to the year that would otherwise have been called 2010 (under the old number/naming system), he isn't using "Glad" to sell his own confusingly similar goods.  He is, in fact, using "Glad" to refer to Glad Products' own goods.  Trademark lawyers call this "nominative fair use," and it does not constitute infringement.

"Trademark dilution" is a somewhat different legal theory that gives owners of famous brand names a legal right to prohibit others from using those names in a manner that would make them less "distinctive," less able to identify and distinguish the owners' goods or services.  For example, trademark owners have fits when writers of fiction or non-fiction use their brand names as generic terms for products or services.  The Xerox Corporation doesn't like writers or the public to speak of "xeroxing" documents, instead of photocopying them; Johnson & Johnson doesn't want their Band-Aid brand to become the generic term for bandages; and Google complains about the use of the term "googling" instead of using the Google brand search engine for "searching" the Internet.  Once in a while, a writer will receive a lawyer's letter from a company urging him/her not to genericize the company's brand names.  Usually, the dispute goes no farther than that.  Writers can avoid even mild reprimands of this sort by respectfully capitalizing brand names.

"Defamation" and "tarnishment" are the areas where there could, in rare instances, be greater cause for concern.  If, for example, you falsely depict a brand name product as being dangerous or defective, a manufacturer could be heard to complain.  Ultimately, the manufacturer should have to prove that some readers actually understood the disparaging depiction to be a statement of fact, not fiction, but there is seldom an artistic necessity to test that line.

Trademark "tarnishment" is a kind of hybrid between trademark dilution and defamation.  Such claims arise when a non-owner uses another's trademark in highly disparaging or offensive contexts. The best-known tarnishment case was a successful claim by the Dallas Cowboy Cheerleaders (who owned a registered trademark) against the makers of the pornographic movie, Debbie Does Dallas, in which the actresses were depicted in the cheerleaders' trademarked uniforms, to the extent that they were depicted in anything at all.  The Appeals Court's famous (at least to trademark lawyers) decision is here.  Notwithstanding the Debbie Does Dallas decision, some uses of trademarks in ways that the owner regard as highly disparaging may be successfully defended as parody, as described in this online article by Leslie Lott and Brett Hutton.

A sensible precaution:  if you are depicting brand name products or companies in an unsavory light in your novel or short story, it is often prudent to invent a fictional brand or a fictional company. If there is a compelling artistic reason to use real products and real companies in contexts that arguably disparage them, it is wise to seek advice, prior to publication, from your publisher's attorney -- or an attorney of your own -- on how best to minimize the legal risks.

The movie industry has always been exceedingly cautious about the use of brand names and the names of real people in films.  For example, the director Danny Boyle, told the press that he caused Mercedes Benz logos to be digitally removed from cars in his film Slum Dog Millionaire when the manufacturer objected to the depiction of its cars in Bombay slum settings.  (It is difficult to imagine a successful claim arising from such innocuous use, but movie studios are unwilling to run any legal risks that could conceivably lead to an injunction interfering with timely distribution of their films.)  More frequently, of course, companies pay the movie studios for product placement.  (There are even isolated isolated reports of paid product placement in novels.)  I can only speculate that the movie industry's obsession with the depiction of brands in fictional works is the source of the largely unfounded concerns about the depiction of brand names in written fiction.

Again, the use brand names in fiction is not a sleep-depriving issue.  It would be obsessive (and stylistically unpalatable) to use the R-in-a-circle symbol or the TM symbol every time you refer to a brand name in your text.  And, as long as you do not write falsely and disparagingly about real brands and the companies who manufacture them, you are unlikely ever to run into a problem.

53 comments:

  1. Thank you for this post - it certainly makes a rather muddy area clear and is a lot more sensible than some of the posts on this subject currently on LinkedIn.

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  2. This was very informative. Thank you!

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  3. Thank you so much! I'm constantly wondering about this stuff and how much I can get away with without being sued, so this is very helpful.

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  4. This is an excellent post, especially for those of us considering self publishing who don't necessarily want to consult lawyers! I Googled 'use of brand names in fiction' and ended up here (see what I did there?) :-)

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  5. Thank you for the post. This is an excellent piece of work and is highly informative.

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  6. Mark,

    I get this question frequently in my group http://AgileWriters.com - can I make a copy in our blog with full credit and linkback to you?

    Greg Smith

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  7. What about if it is non-fiction? Like memoir style.. Do these same rules apply?

    Thanks for your help!

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  8. My novella currently has a four year old zombie with Spiderman slippers on. Would this be considered tarnishing to Spiderman brand? Thanks for a reply, if possible. :D

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  9. Well, you certainly answered my questions. Google+ by me!

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  10. Awesome, thank you so much for your help!

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  11. Thank you, Mark. I was a little concerned and confused about my rights, but you cleared it up for me very succinctly.

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  12. This shows a brand name comes from the situation where the product or services belong or an intuition which delivers a name for the brand.Thanks

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  13. Mark you have some great advice here! I have a specific question concerning trademark - if I reference Jedi Knights and Star Wars in my novel is that copyright infringement? I'm thinking about signing with a publisher who does not protect author rights when it comes to law suits so I want to be absolutely certain. Here is the line from the book if that would help - “Mind tricks? Am I a Jedi Knight now?”
    “Hardy har har har. Tell the geek another Star Wars joke.”

    Thank you for your help and for this blog post! Means a lot to us writers just starting out :)

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  14. I am planning to make a show set in a private school. The school has "All rights reserved"; should I make a school up?

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  15. What if you wrote a book and your character continuously talks about a character from a show throughout the entire book?

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  16. Thank you so much for this post. It's a relief to see the complications of using brand names broken down like this so we can see the exact issues and whether or not they apply to whatever we're working on. With this I can judge if it's worth saving myself the trouble and just making up a fictional name! Thanks again!

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  17. I am about to publish my first novel and since it is a modern romance, I mentioned Facebook, Google, and Amazon in a way that It's like advertising their services. I can I'm out of trouble? The story is so realistic that I can't use any fictional company....

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  18. Thank you for a nice well written article on the subject. It cleared things up for me quite nicely.

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  19. Thank you. I now think I have nothing to worry about in the brands I want to use. Thank you, very informative.

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  20. Thanks! I have been searching for this info for a short story:)

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  21. I have a question about writing non fiction: Is there any problem with mentioning real life people, if it's in a flattering way? Say for instance a book which mentions empowering music - would I be ok to "recommend" listening to the uplifting lyrics of x,y and z famous singers?

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  22. There is a very simple way to avoid any lawsuit from companies if you want to really play it safe. Just use the generic term, such as soda versus a famous brand name soda or beer versus a well known beer.

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    1. Your suggestion is inadequate, Anonymous. We'd lose so much implicit detail that way. "Soda" could mean anything from Coca Cola to Dr. Pepper to Seven-Up. "Beer" could mean Miller Lite or Double Chocolate Stout. Your suggestion is equivalent to saying we should call anything from a California redwood to a bonsai simply "tree". That kind of vagueness does not lend itself to the creation of a scene that the reader can see, feel, taste, etc.

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    2. That suggestion leads me to remember how many of my friends were confused at one point in Twilight, a book I have never read. Apparently it said that the main character used her "favorite search engine," and to quote one person, "can't you just say Google or Yahoo and make it easier?"

      I don't know, that stuff just sort of… bothers me. It's like saying it doesn't matter if its by J K Rowling or James Patterson or Rick Riordan or Gary Paulsen, just call it a "book" and be done with it. Okay, not the best example, but it's late. As long as there's no copyright infringement, there's no reason to avoid using brand names entirely; after all, what kind of person says "let's search this up on the Internet" rather than "Google it"?

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  23. Thank you for this great post! I'd like to be a bit more picky in my question. Say my story is about an NHL hopeful. Now it's not about the NHL exactly, but I fully intend to say he's being scouted by the New Jersey Devils and the characters discuss the excellent goal tending of Martin Brodeur... would you say that's still within "reasonable limits"?... I'd love to get your opinion as I don't see how I can invent a whole new Hockey League :)

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    1. Anonymous:
      Did you ever get your answer on this one? I was googling and came across this blog. My new fiction novel is going to be about a NY Yankees hopeful and was wondering that same exact question!

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    2. If you haven't gotten your answer, I know that Tyreese in "The Walking Dead" comic series plays an NFL linebacker (pre-apocalyptic career) specifically for the Atlanta Falcons. If Robert Kirkman can get away with it, perhaps so could you...?

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  24. are you allowed to use city names and country names in a book

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    1. You're kidding, right?

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    2. I agree with the person above me, but to actually answer the question: Yes.

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  25. can I use names like Star Wars and Sipderman in a child book

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  26. A most informative post. I thank you.

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  27. Great information here. Extremely useful. However I do have a question. Do I need to secure permission if I am referring to the names of British royalty currently living (Queen Elizabeth II) in my work of fiction?

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  28. Thank you very much for this!

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  29. I got into it with someone validating my story for a website that I post through. I had submitted a chapter for validation and was told that I could not publish that part of the story unless I cite the book title mentioned. I mention three book titles in ONE sentence in the chapter as part of a dialog between two characters. They threw a nit fit over the mention of the title Pride & Prejudice being used and not the other two.

    Now, as far as I know, book titles are not copyrighted; and as long as you are not using direct quotes or references to said book, you should not have to cite the title's reference. It seemed odd to me that they would throw a fit over one book title and not the others which are equally popular classics.

    I could understand trademark infringement if the title was used in reference to a movie, but it is clearly in reference to the book. The dialog even states as much. When I pointed this out regarding another title I mentioned (Taming of the Shrew), the validator told me that particular title was not a movie at any point. BZZZ! Wrong. IMDB it. It stars Elizabeth Taylor.

    Am I'm in error of the assessment of my usage? Or is the person validating the story is a complete idiot? I'm generally thinking it is the latter.

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    1. why not simply try to get along with the folks who pay you money?

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  30. Thanks for the info. It's always better to be safe. I love this site. I have it bookmarked.

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  31. Hello. I just came across your article and found it to be very helpful. Thank you!

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  32. Can anyone tell me about the laws regarding songs? For example 'she was humming x,y,z' or they burst into a rendition of .... please?

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  33. i am writing about 2 interesting years of my life. i do mention an online music site and some songs and artist. is this ok, or do i need permission.

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  34. I found this article really helpful. I was surprised that a blog on blogger came up in the no. 1 spot on google when searching for "style guide for brand names in fiction". I spent several years in advertising and I would have to argue that even though corporations may seem to throw a fit over the use of their brand name as a verb or noun I would think they are only doing that to save face. It is a huge victory in advertising and was discussed several times in lectures in college about how they would relish that because it puts their product in the dictionary and has the public saying their product name repeatedly. Mindless repitition, as we all know, is an old advertising trick to try and brainwash the perceived stupidity of the average consumer. However, I do see where it could cause serious legal concerns. I guess it depends on how you look at it. Nice blog you have here. I look forward to reading the rest as I am working on my first ebook. Cheers!

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  35. Thanks so much! I used to think if I mentioned something in my story i'd get sued or a song or what ever. Now i can make my characters listen to real music. :D

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  36. Hello! I have a question.... I want to write a book about proper skin care. At the end of the book I want to list brand names of skin care products that is a good fit for the techniques that will be explained in the book. I will state in the book that these companies are not affiliated with nor endorses my book. Is it okay to do this? Can I be sued for this?

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    1. Simply send an email to each manufacturer and ask permission. Most have a link on their website. If not, you may have to call the main number and ask who handles this issue. They may want to review the work before they agree. If they say yes, keep the email on file. If they say no, then omit the product. Don't assume they will agree with your "positive reviews" either. It may conflict with their marketing plan. And don't assume you can use a business name that has gone out of business like Packard. The family still holds the rights.

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  37. Mark Fowler never replies, people :) He's mysterious like that.

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  38. So for instance if I made reference to Motorola instead of saying two-way radio, knowing full well that all EMS services use Motorola two-way radios, there shouldn't be a problem?

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  39. I greatly appreciated this explanation, it's an issue I've been wondering about ever since I noticed that Neil Gaiman will occasionally refer to real products in his writing.

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  40. Hi Mark. This is a great post. I have a burning question which I cannot get any answers to a wonder if you can advise. I wrote a book several years ago about how to get a job with a particular company. The company is large and has very prominent, hence why I wrote a book on this company. After it was published, I received a letter from the company's lawyer advising trademark infringement and passing off. As a clueless author, I was clearly wrong as I blatently used their logo and an image depicting their uniform on the cover, along with the corporate colours. Talk about being stupid. Anyway, the book was removed from sale and they let me off with a warning.

    So, my question is, how would I go about writing a book about a company without infringing their intellectual property rights? Can I use their name on cover? Am I allowed to write a book which discloses advise on passing their interview for a job?

    I'd really appreciate some input, even if only a little.

    Thanks in advance.

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  41. Important note, especially when it comes to "genericising" a brand... part of why companies do sue, is because to keep their trademark active, they are required to defend it. That is an over-simplification, but nonetheless, true. So they may really have no problem with your usage, but find themselves needing to sue you to prevent the trademark being lost.

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  42. Hi, I wrote a comment but it didn't appear. Will try again - sorry if it doubles up. I'm wondering if you can help me. I'm working on a nonfiction book about writing and it's got pictures of writing tools like typewriters and laptops.
    Am I allowed to include photos that contain brand names in my book? What about highly identifiable products?
    For example, can I include photos of laptops and cameras with the brand name showing? Can I include photos of ipods and iphones?
    Thanks.

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  43. Thanks for this very helpful blog. I am sure that all writers who read it appreciate it as much as I do! John DeFlumeri Jr, author of "Ultimate Money Finder"

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