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.

Archive for the category “Law for Writers”

Putting Real People in Your Made-Up World Part Three: The Right of Publicity from Abe to Beyonce

Personality rights are complex as hell. If you are reading this within a week of me posting it, then this blog post will provide an overgeneralized summary of some really complex stuff. Overgeneralized to the point that, beyond giving you a broad idea of the current state of affairs, it won’t be good for much. This issue is governed by state laws, so the answer to specific questions will be determined by when and where people died and/or were legally domiciled at the time of death. Even when you know that, the scope and nature of each of the state statutes varies. On top of that, some people like to claim nonexistent personality rights on behalf of dead celebrities, essentially sending demand notices that they have no legal right to send. Any specific decision will have to be based on legal advice regarding the specific person in question.

If you’re reading this more than a week after I wrote it, it’s probably outdated. This is an area of law in the midst of huge changes.

Personality Rights Overview

Personality rights are separate from the “real people” rights discussed in the first two parts of this series. The main issue that arises when using celebrities, live or dead, is the “right of publicity.” Here’s the conundrum:

Last year, Pepsi paid Beyonce $50 million dollars to endorse Pepsi. Apparently, Pepsi can sell hundreds of millions of dollars worth of Pepsi if Beyonce tells people to drink Pepsi. This makes absolutely no fucking sense to me whatsoever, but Pepsi knows a lot more than I do about how to sell Pepsi, so there it is. It’s worth $50,000,000 to have Beyonce say:

“Drink this shit.”

With that number in mind, it’s easy to see why Beyonce probably isn’t going to guest-star in your novel for free. It’s also a safe bet that Pepsi was paying $50 Million bucks for something. That “something” is Beyonce’s right of publicity. Her exclusive right to commercially exploit all of her Beyonceness. Because she’s the Beyoncest. It’s also worth bearing in mind that we are talking about a woman who tried to trademark her daughter’s name, so she’s probably not giving much up for free.

And that seems fair. I mean, she did something to put herself in a position to make ungodly sums of money for busing out a “drink this shit.” I don’t really understand what, but she must have done something. And, as much fun as it may be to have Beyonce and Hillary Clinton teaming up with Lil’ B and Carl Sagan to fight space zombies, it probably shouldn’t be free. Part of what you would expect to be selling that book is the name recognition; i.e., a hint that Beyonce was saying “read this shit.” Unless you have a few million dollars lying around, that isn’t going to happen.

The Legal Stuff:

The right of publicity basically means the right to control the commercial use of an individual’s “name, likeness, or other recognizable aspects of one’s persona.” It gives an individual the exclusive right to license the use of their identity for commercial promotion. The term “right of publicity” is misleading. A more accurate title would be: “a whole bunch of things that nobody has really figured out that mainly mean your ass can be sued for using a famous person in your book. And sometimes a not famous one, too.” But the legal profession seems to have settled on “right of publicity,” so that’s what I’ll call it. Understanding that right would be a legal mobius loop, because you would have to research exactly how each of the fifty states handled the question and, by the time you were done with No. 50, the law in No. 1 would likely have changed. For now, a serviceable (which is to say, broad) definition comes from Cornell University’s Legal Information Institute:

In the United States, the right of publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a right of publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity, and false light. See Restatement (Second) Of Torts §§ 652A – 652I. Under the Restatement’s formulation, the invasion of the right of publicity is most similar to the unauthorized appropriation of one’s name or likeness. See Restatement (Second) of Torts § 652C, comments a & b, illustrations 1 & 2.

In other states, the right of publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to “pass off” the product as endorsed or produced by the individual help to protect the right of publicity. See Unfair competition.

Nineteen states have some form of “right of publicity” law. On top of that, some federal laws can also be implicated. Some names and other aspects of identity can be trademarked, and if a claim arises that someone’s identity is used to falsely imply endorsement of a product, Section 1125 of the Lanham Act also provides a cause of action and remedies.

As far as the living are concerned, you do not want to have living celebrities (by which I mean even remotely famous people) as characters in your book. Unless other safeharbors apply (and the analysis is not entirely unlike that used for “fair use” generally, but need to be looked at completely separately), just don’t.

Things aren’t much better when it comes to dead celebrities

Unlike claims about defamation, which infringe personal rights, the right of publicity is considered a property right. Among other things, that means it can be sold and, in some cases, transferred on the celebrity’s death. Muhammad Ali’s identity was recently sold for $62 million. There have been a few rounds of contentious litigation about Albert Einstein’s likeness.

Marilyn Monroe has been litigated and it was determined she was a resident of New York when she died, so she’s fair game. If she’d been a resident of California, however, she would not be.

Interestingly, one of the states on the forefront of the right of publicity war is Indiana. Though it’s more famous for growing corn and soybeans than celebrities, Indiana is home to CMG Worldwide, a huge celebrity rights licensing company. CMG owns James Dean, Ingrid Bergman, Jack Kerouac, Duke Ellington, Jesse Owens, and even people like Frank Lloyd Wright, Amelia Earhart and Malcolm X. Enormous sums of money are paid for the right to own and use those dead celebrity names, which means enormous sums of money will be used to defend the right to keep doing it.

How long does the right of publicity last?

As one might surmise from watching Abraham Lincoln Vampire Hunter, it does not last forever. Well, that, and if someone wanted to do a movie about Michael McDonagh Vampire Hunter, I’d probably be cool with that, too. But get my permission first. As to how long, though, the answer is another “depends.” It is not, as some people believe, a set “50 years.”

In states with statutory right of publicity laws, those laws include a term. The term ranges from as few as twenty years in Virginia to a century in GMG’s home state of Indiana. Unsurprisingly, Elvis’ home state of Tennessee, allows the right to continue as long as it is being exploited. As long as there are Elvis impersonators, Elvis will be protected. Showing how much of a moving target this is, California used the copyright law term when it adopted its right of publicity statute, which, at the time, was fifty years from death. When the term of copyright was extended to 1998, California extended its statutory right of publicity as well.

Going back to where we started, the answer to your question will depend on where the person was domiciled at the time of her death. Even then, there are a few companies claiming to have the right to sell Marilyn Monroe’s publicity rights, and they will be happy to send nasty letters claiming that, despite the fact that the lack of those rights has already been determined.

Bottom Line: there are no safe rules of thumb to apply to this question. Celebrity characters will likely fall somewhere on a spectrum between Beyonce and Abraham Lincoln. Where they fall on that spectrum, and if they’re closer to Beyonce than Abe, where they were domiciled when they died will determine the extent of their publicity rights. From there, it is a case-by-case question.

Advertisements

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)

Using real people in our fictional writing presents a couple of problems. Aunt Myrtle not speaking to you at Easter because the three-headed demonic fire troll your hero killed to stop the apocalypse was named Myrtle is not the end of it, either. Problems can arise with regard to defamation (which is the legal term for talking shit about someone) and, a relatively new development, the right of publicity. Today’s entry is about defamation of the living and the tricky proposition that you can’t libel the dead. By tricky, I mean don’t believe it.

Defamation: Just don’t go there.

As a general rule, the safest course to take is not to say bad things about other people. Bear in mind, your characters are not people, no matter how real they seem to you. Talk smack about them all day long. Some of them should be despicable human beings. Just make sure your characters are fictional. If you want to write about an out-of-control 13 year-old rock musician, go for it. Do not name said musician Justin Bieber or, for that matter, Bustin Jieber.

image

Which really brings us back around to the issue raised in the last post. Even if you set out to write a character in a completely nondefamatory way, you can accidentally stray into that territory. You can also realize that your boring Gary Stu character needs some childhood trauma, a dark secret, or to do something despicable to make him more believable. Writing about a person who can sue you for doing that will kill your flexibility as a writer. There are some very craft-oriented reasons to steer clear of that problem altogether. The quality of your narrative should not be governed by Justin Beiber’s whim.

You can’t defame the dead (sorta)

In theory, it goes like this: Defamation is a personal tort. Personal torts do not outlive the person who was harmed. Therefore you can’t be sued for defaming someone who is dead.

In reality, Colorado, Idaho, Georgia, Kansas, Louisiana, Nevada, North Dakota, Oklahoma, Utah and Washington that have criminal statutes regarding defamation of the dead. The definition of libel in Texas includes written words that “tend to blacken the memory of the dead.” In short, the oft given advice, “you can’t be sued for defaming the dead” is not accurate. Also, if the person was famous, it doesn’t matter whether you’re defaming or not, you may run square into the quagmire that is the right of publicity, which is going to need its own blog post.

State statutes aside, there are reasons to steer clear of talking smack about people who used to be alive. For starters, if they were alive in recent memory, you probably aren’t just talking about the dead person. A comment that the dead guy fathered three illegitimate children is, effectively, a comment that three possibly living people are bastards. Bad things don’t happen in a vacuum, and the other people in the general area when they happen can end up tainted by your comments. Then you can have some very alive plaintiffs unhappy about what you wrote.

Alleged gangster John Dillinger provides an allegedly interesting example. He has a grand nephew who is more than happy to sue people portraying his shirttail relative, who has apparently been alleged to be a gangster by some people, in a bad light. Just so we’re clear, here, the grand nephew of this guy:

image

Who the FBI thought was bad enough to do this to:

image

may well sue you if you portray his great uncle in a bad light. One such lawsuit allegedly Shut down the Dillinger museum for an alleged five years.

The safest answer, again, is to bask in the fact that you are writing fiction. As interesting as Dillinger was, you should have no problem writing your own, not-alleged gangster who is more interesting. Plus, your gangster can be a despicable cad, if that’s what the story calls for, without you having to look over your shoulder.

Real people you really need to use.

Just because we don’t want to write nasty things about people doesn’t mean we can avoid writing about real people all the time. Good luck writing about America in the 1980s without mentioning Ronald Regan. Miley Cyrus probably isn’t critical to your narrative, but if you want to work a passing twerking reference into your book, you shouldn’t be afraid to do so. And you are reasonably safe as long as: (1) the thing you are referring to is an event that actually occurred, not gossip or rumor; or (2) the thing you are referring to is entirely opinion (“Bieber is rich and all, but he seems pretty messed up, too” is fine. “Beiber drives drunk all the time,” is not). Plus, in either case, (3) treat it more or less we treat product names based on fair use under trademark law. Just like, if done right, your hero can love Pink Floyd without violating copyright or pound Jack Daniel’s whisky like there’s not tomorrow without violating trademark prohibitions, you can mention people in your narrative without running afoul of this rule. More pointedly, you can mention famous people without running afoul of the right of publicity, which we will discuss in another post.

Another resource and the bottom line:

Attorney Mark Fowler writes a blog called rightsofwriters.com/ that is a treasure trove of information about dozens of legal issues that writers are presented with. His blog is well worth a good look whenever you have questions about this type of issue. In a post on application of libel laws to fiction, he quotes Rodney Smolla, a seminal figure in First Amendment law’s explainiation:

When an author wants to draw from a real person as the basis for a fictional character, there are two relatively “safe” courses of action from a legal perspective:  First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character’s conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character’s reputation, but make substantial efforts to disguise the character … to avoid identification.  When an author takes a middle ground, however, neither adhering perfectly to the person’s attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

Since I find myself constantly arguing in favor of the middle ground on everything from outlining vs. pantsing to use of adverbs and following advice from Nobel laureates, the irony of this advice is not lost on me. This is the one area where the middle ground is not where you want to be.

Putting Real People in Your Made-Up World Part One: People from your daily life.

I’ll start with the overly broad question writers often ask.

Question One: Can I use real people in my book?

Short Answer: If you don’t you won’t have a book.

Here’s the longer answer. Every writer who’s ever written has written about a living person she’s met. Even if you are writing a sci-fi epic about a cluster of beings who are made entirely of energy, one of them will probably end up acting an awful lot like your sister. That black hole they’re afraid of will probably use that stupid catchphrase your junior high school gym teacher always threw around, too.

The thing that makes us writers is the ability to look at the world around us and draw a new and interesting story based on it. Some of us may end up drawing spaceships and others vampires, while those of us writing contemporary satire come pretty damn close to just drawing what we see. Historical novelists often strive to draw the most accurate picture they can of something that happened in the past. People writing narrative nonfiction are basically trying to trace the exact lines of an event in a way that tells the story. But, whether you’re writing a MG fantasy about elves or narrative nonfiction about the Romney campaign, you’re going to at least touch on people you either know or have heard of.

Not only can you use real people in your book, you have to. Otherwise there’s no book.

Question Two: Do I need their permission?

Short Answer: No, you need to write better.

The longer answer is that it’s fine if you want to get someone’s permission. You may want to do that for all sorts of reasons. But that’s usually not the best way to go. For one thing, until someone’s read your completed manuscript, he or she will not really know what the portrayal is like. You may even tell that person that the portrayal is flattering (because, let’s face it, you’re not going to find many people who want to be portrayed as the idiotic, misogynistic boss, so that’s not the conversation you’ll be having). But that still doesn’t mean things will go smoothly. Telling the person it’s a nice portrayal presents a few problems.

First, your idea of nice may not be hers. That cute honking noise she makes when she laughs may be something she was relentlessly teased about in fourth grade. Now she’s convinced she doesn’t do that anymore, despite the flocks of geese that land on her yard whenever she’s watching Seinfeld reruns. That quirky habit your writer radar picked up on isn’t just quirky, it was born of a horrible childhood trauma. You just don’t know.

Second, you’re essentially locking yourself into a contract. If someone agrees you can use her in your novel in response to you saying your portrayal is nice, you’re stuck. Suddenly, your character is constrained not just by the obstacles in the story but also by the requirement that the way she handles them be flattering to the person you named her after.

Third, real people suck. Jason Borne did more badass stuff within an hour of waking up than most people do in their entire lives. Do you really think cousin Eldridge is essential to the story? It might be nice to give him a nod, since people with names like Eldridge tend to be computer whizzes and die childless, but that’s what the dedication page is for.

Fourth, it’s not over ‘till it’s over. Having just spent three months rewriting the last 30,000 words of my manuscript from scratch, I have no doubt that I’m speaking the truth when I say: you have no idea how things are going to turn out until you’ve written them. And gotten feedback. And rewritten. And gotten more feedback. And written to editorial order and you’re looking at something that is no longer a manuscript, but is actually a book.

Fifth, fictional real people suck more than real real people. Almost every good hero has her demons, just like interesting villains usually have some misplaced good in them. Interesting characters are almost always conflicted, but your Aunt Sallie does not want to read about how she’s torn between her love for your Uncle Bud and her desire for Javier the pool boy. Uncle Bud sure as hell doesn’t want to read about that, and Javier may have just thrown up in his mouth. The alternative is to turn Aunt Sallie into Aunt Mary Sue, which is to say, a cardboard cutout of a one-dimensional, boring Aunt Sallie who doesn’t want Javier to clean her pipes.

Note that I’m not really talking about law on this post, although the others on the topic go pretty deep into legal questions. There is no bright line between the (statistically unlikely but enormously expensive) legal problems that can stem from using a person in a novel and the (financially free but highly likely and personally costly) family/friend problems that can stem from using a person in a novel.

The bottom line, when it comes to friends and family, is that you need a really good reason to need to include them. And if you’re just writing a novel, there usually isn’t one.

That’s not to say you shouldn’t use their traits. Mine the crap out of those. Those traits are what makes good writing. But mix and match traits and jobs and relationships and appearances and genders so that no character is discernibly a person two cubicles down or whose name you might draw for the family Christmas gift exchange.

Got an axe to grind? Don’t do it. Now you’re substituting personal motives for good storytelling, and your book won’t be as good. Everything we write should be in furtherance of the story. Our traumas, heartbreaks, and hatreds can provide powerful fuel for a good narrative, if we use them to serve it. Setting out with a score to settle is the opposite – your story is now being used to serve your pissy little vendetta. Get over it. Your story matters more than revenge – which will just come across as whiny anyway. Your emotions serve the story, never the other way around.

Question Three: What about names?

Short Answer: A rose by any other name…

You don’t insulate yourself (much) by taking a person who is clearly known and slapping a new name on him. The flipside is, you don’t have much of a problem taking a name from someone you know and slapping it on a character. But you should be doing that for the same reasons characters get other names – it’s the best name for the job.

Case Study: Rochelle Ames

There is a character in Velvet Falls named Rochelle Ames. Her daughter, Susan, introduces her in the narrative by saying, “that bleach-blonde narcissistic bitch is my mother.” She is not a nice person. On the plus side, she’s hot. Her negatives include being slutty, manipulative, narcissistic, a horrible mother, greedy, short-sighted, and adulterous. She also has a drinking problem.

I named her after my Critique Partner.

A couple of things about the real Rochelle. She is not bleach-blonde, she is not narcissistic, and she is not a bitch. Since I’m in trouble if I say she’s “not hot” and probably in even more trouble if I say she is “hot” I’m just skipping that part of the analysis, although I will say she is a beautiful young lady who in no way physically resembles said bleach-blonde bitch. The remaining items on the list are also nonstarters.

But you’ve gotta admit, Rochelle is a killer name for a manipulative blonde seductress. That’s how Rochelle Ames got the name Rochelle. Plus Real Rochelle knows this book better than anyone but me, she is so different from the villain named for her it’s an inside joke, and the name just fits.

What about Ames? That’s where those personality characteristics come into play. Think about it.

. . . . . . Thinking?

Let me ask you this, have you read East of Eden?

If you have, I don’t need to say another word. If you haven’t, you should. But, basically, I knew what the character had to be before I named her, and found the literary character who most consistently matches her (Cathy Ames).

So that’s a pretty good window into the type of things I consider when naming characters. I start with the thing that will serve the story best. Within that, if I can tuck an inside joke and a literary Easter egg, I’m all for it.

But the character herself is 100% fictional. And bears no resemblance to any narcissistic, self-centered, greedy, manipulative women I’ve ever met.

Honest.

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.

 

 

Writer’s Guide to Copyright and Trademark Infringement (Episode 2: Permissive Use and Obscuring brands)

Recap: So far, we’ve covered the fact that brands, characters, songs, poems, stories (in other words, pretty much everything) can be covered by intellectual property protections (in our context it’s usually copyright or trademark protection). That’s the bad news.

The good news is: the fact that something is protected doesn’t mean you can’t mention it or quote it or acknowledge it. You can still use it if you get permission, avoid the problem altogether if you obscure the brand (both of which I’ll cover today). Te fair use exception will be tough to cover in one post, let alone mixing in other ways to avoid problems, so I’m putting that off until next week.

If you take anything from this, understand that the three word responses you see to posts asking, “Can I do this?” on writer message boards probably aren’t sage tidbits of seasoned wisdom (unless they say, “this is complicated” or “be really careful”). My attempt to provide a broad, over-generalized summary of just enough basics to give you an idea how to stay out of trouble is going to take several blog posts.

Let’s start with the easy one: Permission.

It sounds goofy, but it’s not daffy to think you can get permission to use trademarked names or portions of copyrighted materials. [It’s funny because Goofy and Daffy are trademarked by a certain corporation that is closely associated with rodents (their litigious legal department) that also happens to use a rodent as its mascot]. If you think it’s important to your narrative to have all the kids drinking Sundrop soda and eating Little Debbie’s snack cakes, and you portray both of those items in a reasonably favorable light, they may be more than happy to let you. They will probably require that you use an acknowledgement like: “Sundrop® is a registered trademark of Dr Pepper/Seven Up, Inc. © 2013 All Rights Reserved, and is used with the express permission of the rights-holder” or something along those lines.

As I explained in the prior post, IP rights-holders have a legitimate concern about their material being used without permission. If they don’t police it, they can lose the ability to enforce it later. If the use is reasonably limited and you acknowledge the fact that your use is with permission, they may be more than happy to give it to you. The extreme example of this is product placement, where the trademark rights-holder actually pays to have the mark displayed (usually in a movie or television show). It’s a form of advertising – everyone sees Brad Pitt drink Sundrop and then start making out with Angelina Jolie (or vice verse) and suddenly you notice Sundrop in the beverage aisle the next time you’re shopping.

You aren’t likely to get payola for putting Sundrop in your book. You’re probably not even going to get a free Sundrop sun visor. But you may well be able to get permission to use the name by e-mailing their legal department (or even starting with the “contact us” address on the webpage). Bottom line is, it never hurts to ask.

The opposite end of the spectrum is occupied by said rat-infested corporation, which is completely over-the-top paranoid about its intellectual property portfolio. On his recent acquisition, Darth Vader was rumored to comment, “Whoa, dudes, you really need to chill.” I can actually call Disney out by name, for a slew of reasons including the fact that I am writing educational, non-fictional materials for no financial gain. I am voicing opinions and, to the extent I am mixing opinion and fact (the bastards [opinion] threaten to sue daycares for painting Disney characters on their walls [fact]), it is clear where I am doing so.

The fact is, even when writers screw up, they aren’t usually sued for it. The result is usually a letter from the rights-holder’s counsel informing you of the violation. If they aren’t dicks about it, they’ll just ask you to stop. If they are super nice about it, they will even let you sell the merchandise you already have on hand, as long as you don’t print any more with the offending use in or on it. If they are the most super-chill legal department in the universe, they may even send you the nicest cease and desist letter ever:http://brokenpianoforpresident.files.wordpress.com/2012/07/jd-letter-entire-big1.jpg

But you can’t count on getting that letter, nor can you plan your cover art budget around being funded by a whiskey company’s legal department. The odds of being told to destroy your books are exponentially higher than that.

In that example, the name itself wasn’t used, but the cover looked just like a Jack Daniel’s bottle, which is the company’s trade dress. When it comes to cover art, you want to avoid anything that could reasonably confuse someone as to the “source, sponsorship or approval” of your book. That is an area where the mark holders have little room to give, and you will very likely be required to destroy anything that was printed.

[Just by way of full disclosure, one of my close friends is an executive with Brown Forman, the parent company that owns Jack Daniel’s Properties, Inc., which owns those brands. That is not, however, why I think the C&D letter is awesome.]

Next, almost as easy: Obscure the brand.

Let’s face it, if your narrative is so tied to a specific thought someone else had that you can’t write around it, you probably have problems with the story that go beyond intellectual property rights. Nobody wants to read an Ode to Little Debbie. No matter how much you hate WalMart, your WalMart-bashing magnum opus is probably only going to be mildly interesting to the people you were in line with the day of the incident in question. If you named your character Katniss Evergreen years before The Hunger Games showed up in print, but are just now getting around to revising your old novel, the best news I can give you is this:

Get Over It.

Kill your darlings. Change your names. Nothing that specific should impact your narrative arc anyway. This is one of those happy places where my experience practicing law for 20 years and my experience writing and editing fiction both scream the exact same piece of advice. If your hatred of WalMart is such that you can’t carry a story through by calling your behemoth retail villain MegaMart, SuperMart, WeRTehSukMart, or AboutAMillionFuckingOtherThingsMart, the problem with the narrative is not the Walton Family’s intellectual property portfolio.

Most of the time someone can’t just write around this problem, it’s because (whether she wants to admit it or not) the product is either fanfic or a hatchet job. Passing mentions aside (because those are what fair use will boil down to), no brand, song, poem, or book should be so integral to your story that you can’t just change it. If someone finds that she can’t, what that really means is that her story is based too much on another person’s intellectual property to stand on its own merit.

There’s a word for that: Infringement.

I am not saying you necessarily have to write around every mention of a brand or research the USPTO archives every time you refer to a product to see if the name is trademarked. What I’m saying is that you need to know you can. If you got that cease and desist letter, or a directive from an agent or editor to make that change, it should be a question of search and replace, and not a major revision to your story line.

The next post will cover whether you really need to omit all references to specific songs or cars or beer or whisky (spoiler alert, you don’t). That said, as long as you could if you needed to, you should be in relatively good shape.

Writer’s Guide to Copyright and Trademark Infringement (Episode 1: A general overview)

Rocko and Chainsaw jump into the truck. As Rocko turns the key, the stereo blares… um, Twinkle Twinkle Little Star? That one’s gotta be public domain, right?

We’re supposed to write what we know, and a lot of us (myself included) write about everyday life. Well, a much cooler version of everyday life, but, still, life here in Anytown USA. If you write about life in the Antheria Quadrant or a magical realm, you can probably skip this post (unless you have a guy named Darth who has a Death Star in your Quadrant or your magical realm is called Middle Earth). Even then, this post isn’t about plagiarism,

Intellectual Property and Writing is a complicated subject. Actually, it’s a whole bunch of complicated overlapping, interlocking subjects. The kind of subjects that people who went to law school, passed the bar exam, and practiced law in this area for a decade or two still go to continuing education classes on every year. I wish I could just fire off a douchey top ten list that told you how to avoid trouble, but it isn’t that easy. I plan to provide just such a list in a few days, but trust me when I say a list, standing alone, will do nearly as much harm as good. It’s really worth taking a few minutes to understand a little bit about the basic framework you’re going to be operating in.

“We’re Living in a Material World”

One of the issues with writing about life in a consumer society (which, writing satire, is one of the things I write about) is the fact that our society loves to brand the things we consume. For every person who says, “Meet me at that independent coffee shop on 36th Street,” a couple hundred meet at Starbucks®. We drink Coke® or Pepsi®. We like Big Macs® and throw Frisbees®, not flying discs. And those are just trademarks. The little ® means they are registered trademarks, and have been registered with the U.S. Patent and Trademark Office.

Then we have copyrighted materials. Your protagonist may want to start singing Ding Dong the Witch is Dead the minute his wife leaves the house, but can he? When she wants to read love poetry from the balcony, can it be Echo© by Carol Ann Duffy or do you have to become a poet, thereby forcing her (in my case) to read insipid poetry at best? If your character was a child of the 1970s and a science fiction geek, can her favorite movie still be Star Wars (which is both a ® and a ©)? The little © (or, in the case of sound recordings, the little ℗) says the author has the rights to the material and you’ve been warned.

So what the hell? We obviously can’t have our characters listen to Twinkle Twinkle when it needs to be Born to be Wild, and all of those little ©s ®s and ℗s make our prose look like a list of side effects from a treatment for erectile dysfunction. And, unless my books a huge bestseller, nobodys even going to bother worrying about infringement in my stuff anyway, right?

This is the most important thing I’m going to say in this post. Are you ready? Ok, here goes: WRONG.

The unfortunate fact is, once someone has intellectual property protection (whether in the form of patent, copyright, or trademark), he or she can lose that protection by allowing the protected property to become “public domain.” The classic example of this is the thing you use on the fly of your pants (and the door to your tent, if you camp, and the way you close up your windbreaker). When enough people generically refer to anything with linking rows of interlocking teeth as a zipper (without permission or acknowledgment of the mark), it becomes “genericised” and the owner loses the mark. This happened with aspirin in the US, to Friedrich Bayer & Co. –the same company that had the balls to trademark heroin. They lost that one the same way. Owners of copyrighted materials do not face the same kind of pressure to protect their works, but can still lose the ability to sue under broader doctrines (estoppel, latches, and a bunch of other Latin words I don’t have time to go into).

Because of that copyright and trademark holders have a legitimate reason to make sure we dont improperly use their material, even if we’re not making a dime doing it.

That does not, however, mean we can’t use the materials at all. Not even close. What it means is we can only use the materials either (a) with permission from the copyright/trademark owner or (b) under the fair use exception (or another exception, but those are rarely as important in this context).

Yay, hes finally talking about fair use. I should have skipped all the boring shit. I found the part with the answer!

Sorry, but no. I’m going to give you my first ever Michael J. McDonagh Blog News Update: In an astonishing coincidence, since I was planning to write this today, anyway, this happens to be the day the biggest fair use decision of the decade, possibly my lifetime, was handed down. In The Authors Guild, Inc. v. Google, Inc., the court sided against the authors (boo) and in favor of Google (boo).

Except, with respect to this post, we kinda wanted that, because at the moment we’re wondering how far we can push the bounds of using other peoples stuff. (Yay?) If you’re Stephen King or Dan Brown you’re probably bummed (and bored as shit, if you’re reading my blog, but please, please start posting comments). For me and you, not so much. Plus it’s a District Court decision on summary judgment, it will be appealed, I’d be surprised if it didnt  get reversed on appeal and there will be an attempt at an appeal to the Supreme Court (where I’d say the odds of the original ruling being affirmed go down even more).

That’s not really the important part. The important part for this post is to understand that both sides spent hundreds of thousands (Plaintiffs) or millions (Google) of dollars hashing through the question of fair use. Until today, nobody was certain how the judge was going to decide. I think there is at least a 50% chance the judge will be reversed on appeal. It took eight years to get to this point, and, as the judge put it, “The sole issue now before the Court is whether Google’s use of the copyrighted works is ‘fair use’ under the copyright laws.”

In other words, the important thing to understand is that “fair use” can be a really fucking complex topic. Or, as the Google Court said it, “The determination of fair use is an open-ended and context-sensitive inquiry, thus the fair use doctrine calls for “case-by-case analysis[.]” That, by the way, is how federal judges say, “really fucking complex topic.”

 

Tomorrow I’ll get into the four-part fair use test and how to avoid infringement, I promise. But I think jumping right to that would be a huge disservice to the people who read my blog. Since you’re presumably fellow writers, I can’t do that (even though douchey top ten lists drive traffic like no other).

Aside from “this is a really fucking complex topic,” there are two points I want to hammer home from a writer’s perspective:

1)    Don’t let The Man keep you down. Just write the damn book. If everybody is reading The Hours© at a Starbucks® and listening to Dylan sing Like a Rolling Stone, so be it. (And, yes, the registration marks are here purely for comedic effect). At least for the first draft, this isn’t anything to even think about. You shouldn’t have all those adverbs, either, but now’s not the time to worry about them. This is editing stuff, not drafting stuff. It shouldn’t even be on your mind until you’re done writing (and probably revising, since we never know what’s getting cut there until we’re done with surgery).

2)    You need to be about 1,000 times more worried about this if you’re self-publishing, because traditional publishers deal with it all the time. If you’re going the traditional route, you’re probably better off not worrying about it at all (if the changes take anything away from your narrative), and being flexible when you get your editing letter. This is mostly a minefield for people who want to self publish. A cease and desist letter that just tells you to ‘cut it out’ becomes a real problem if you’re sitting on a couple of boxes of POD paperbacks you just shelled out for.

Tomorrow, I’ll explain the four part test for fair use, it’s applicability in both copyright and trademark matters and maybe even provide a douchey top ten list of things you should know. 

Post Navigation