Michael J. McDonagh

An established writer who recently went to work becoming an author, trying valiantly to make someone give a damn and chronicling the process.

Writer’s Guide to Copyright and Trademark Infringement (Episode 3: I’m finally going to talk about fair use! And, yes, there’s a douchey top 10 list)

This series of posts has addressed the use of trademarked and copyrighted materials in fiction writing. Most writers believe the conversation begins and ends with fair use (and a fair number of message board participants believe fair use is reducible to a single sentence answer).

If you’ve read my prior two posts on this topic, you know THAT’S WRONG. If you haven’t read those posts, for the love of God, go do so. The point behind this post is not to provide a complete summary of the broad topic in the title. This post discusses fair use, an important (but only one important) aspect of trademark and copyright infringement. If you’ve read the two prior posts and come to realize that fair use is not the beginning and end of this issue, but skip this post on fair use, you’ll be ahead of the game. If you just read this post on fair use, you’ll walk away with a general understanding of one piece of a complicated puzzle. That’s it. Which is why it drives me freaking nuts to see broad proclamations about fair use thrown out as the alpha and omega of this issue.

Recap of Important Points:

  • Infringement and its exceptions are really fucking complex topics that vary based on the facts of each case (and a different judge or jury could come to a different conclusion based on the exact same set of facts).
  • Because the standards are fact-driven, there are no hard and fast rules. Ignore anyone who tells you there are.
  • This is not something to factor into your writing or initial editing process. Just get the book out and treat these questions like your crutch words – plenty of time to go back and worry about them later.
  • If you’re going to be traditionally published, this isn’t something to pay much attention to (unless you’re writing about a serial killer stalking kids from inside a character suit at Disneyland or something, which could effectively keep you from being publishable). Your publisher will provide guidance based on your specific text, which will be more valuable than any general blog post – regardless of how insightful, witty, or devilishly handsome the person putting that post up may be.
  • When looking at your use of branded to copyrighted material, one key factor is whether anyone (on a bad day, looking for a reason to complain, with barely a shred of something to bitch about) can say that you are “disparaging” the other name or work (i.e., portraying it in a bad or unflattering light). Even if you are within the exemptions, you still can’t disparage others.
  • Does your work NEED to use the copyrighted or trademarked material? Do they have to be in a Starbucks, or can they just meet at Mo’s Coffee Emporium. Is it necessary for your protag to curl up to read Harry Potter or can she just as easily be reading “her favorite book about a boy who goes to a school for wizards.”


So, yea, I just started the post where I FINALLY get around talking about Fair Use with 500 words about shit other than fair use and a warning not to just look at fair use. That’s because I keep hearing this issue discussed as a question about fair use, which it is not. But what the hell. Here is my

Douchey Top Ten List of Things Writers Need to Know About Fair Use

1.     Fair Use is a Four-Part Balancing Test. Everything you’ve heard about magic numbers of words or percentages of work or anything else with a set, objective standard associated with it is wrong. Four things are evaluated and the total overall interplay between those four things determines whether you fit within the fair use exception. Some can count for finding a fair use exception, some can count against it, and the total overall conclusion is what will drive the Court’s determination.


2.     The Four Parts Are:

  • The purpose and character of your use (This is also called the “transformative factor” and basically asks whether you are creating something new, adding new meaning, or, at the opposite end of the spectrum, just using someone else’s ideas)
  • The nature of the copyrighted work (Are you relying heavily on facts from a biography or history book? If so, the same level of parroting that would be a violation if it had not been scholarly nonfiction can be just fine.)
  • The amount and substantiality of the portion taken (This is the one everyone seems to think is all that matters, but it’s third on this list for a reason. It’s also two separate standards:

1.     Amount (number of words, both total and as a percentage of the copyrighted material/percentage of your material)

2.     Substantiality (Did you take the words from the “heart” of the creative work – a common example are the five words “I can’t get no satisfaction” from the Rolling Stones’ song Satisfaction – that’s so substantial to the heart of the work, those five words could be too much) and

  • The effect of the use upon the potential market (Are you taking food off the original artist’s table? If sales of your work are not likely to have any kind of impact on the market for the copyrighted material, it helps. A lot.).


3.     Copyright and Trademark are Not the Same Thing. I am glossing over a lot of nuances here to provide a really rough guide. Courts will, on occasion, look to copyright law (even though the rules come from a statute) for guidance in evaluating a trademark case, and some cases (e.g., those involving the Mickey Mouse logo) involve things that are both copyrighted and trademarked at the same time.


4.     Don’t Make the Source, Sponsorship, or Approval of Your Work Confusing. This is technically a trademark standard but is also a good guide for evaluating copyright infringement. If you are referring to brands (or making your cover too similar to a logo) or including specific items or characters in your narrative to an extent you seem to be writing a book about a particular brand of whiskey and not your own drinking problem, it’s going to be an issue (trademark). If your character’s love of a certain boy wizard seems to make the book a love story between your MC and that character, we have a problem (copyright).


5.     If You Can’t Say Something Nice, Don’t Say Anything At All. Nothing will get you in hotter water faster than disparaging. “Disparaging” is the legal term for shit talk. At this juncture, pick one. You can either mention Twilight in passing or dedicate a chapter to insipid, poorly written, gag-reflex-invoking teen vampire romances that suck.


6.     Use Things That Aren’t Protected. Fair use is an affirmative defense. Among other things, that means the defendant (who usually doesn’t have the burden of proof in a case) has the burden of proof. But it only applies if you would otherwise be infringing. Avoid infringement in the first instance. Ideas are not copyrighted. Themes, concepts, and motifs are not copyrighted. You can write all the novels you want about plantations during and after the Civil War. Just don’t call any of them Tara.


7.     Being Right is no Guarantee You Won’t Be Sued. Or, more commonly, receive a cease and desist letter from counsel for someone who wants to bitch about your alleged infringement. Lawsuits are expensive. Win or lose. Since the average advance on a first novel from a significant publisher is something like $16,000 (and the average profit from a self-published book from a first time novelist is something like $0.16) they know the threat will probably be enough. The music industry is notorious for this, regularly losing cases in federal court but still merrily threatening and bringing them every time someone whispers lyrics from Sympathy for the Devil as the antagonist enters the room. Quote Dante instead, he’s public domain.


8.     Copyright Extends to Derivative Works. Under US Copyright law, copyright owners have the exclusive right “to prepare derivative works based upon [their] copyrighted work.” Yes, that means fan fiction. It also means anything else that would reasonably derive from the original. So Hogwarts’ New Class, A Harry Potter Christmas, etc., are all out of bounds. This one is vague as hell. There is a line (somewhere) between the universe Captain Kirk explored and the universe the rest of us can write about. As an aside, this issue came up in Gene Roddenberry’s somewhat messy divorce. I have one piece of advice here (which should really cover you with respect to almost all copyright and trademark issues). Create your own fucking universe. That piece of advice, alone, is the safest piece to follow. Klingon is not that cool a name, anyway. Not compared to Trogphlops. Which happened to be a random string of letters I just typed.


9.     Combine the “Ideas Cannot Be Copyrighted” and “Copyright Extends to Derivative Works.” And have a field day. You can have spaceships and warlike aliens and logical aliens and furry little fluffy pets that reproduce exponentially (as long as they aren’t called tribbles). None of this stuff should be limiting your creativity at all. You can have a man wake up from a coma with no memory and let him discover he has awesome ninja assassin skilzz. With two zs. Because he’s that awesome. As long as his name is Basin Jorne. If the functional limitations on the copyright end are a problem, you are writing fan fiction and need to come to terms with that. Have fun doing it, but don’t publish. Some authors don’t mind fanfiction, as in posts on sites dedicated to them, but it doesn’t change the fact that it is a copyright violation.


10.   The Bottom Line. Make your work your own. If you are telling a new story in your own voice in a different way than anyone else has, the occasional mention that the car was a Toyota or the beer was Pabst is fine. If you have wizards but they aren’t in a prep school together or you have a prep school but it isn’t full of demons, you’re fine. KEEP THE CORE OF YOUR STORY, AND THE WAY YOU TELL THAT STORY, YOUR OWN and everything else will more or less sort itself out.


LIMITATIONS:      In addition to the thousands of words I’ve already written about how limited this advice is (and the fair use rules are, generally), bear in mind a few specific limitations. Parody and criticism are outside the scope of what I’ve addressed here. Because those exceptions are EXTREMELY fact-sensitive, they can really only be addressed on a case-by-case basis. Plagiarism is a whole other evil, for which the practitioners should spend eternity having their private parts ravaged by flaming, demonic termites while being forced to watch Toddlers in Tiaras reruns. But I didn’t talk about it here.


Hope that helps.



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One thought on “Writer’s Guide to Copyright and Trademark Infringement (Episode 3: I’m finally going to talk about fair use! And, yes, there’s a douchey top 10 list)

  1. Pingback: Putting Real People in Your Made-Up World Part Two: Don’t speak ill (or well) of the dead (or living, if you can help it) | Michael J. McDonagh

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