Copyrights, trademarks, pop-culture, people, and other real-world references in your novel

This thread gets pretty good traction on the old board, so let’s try it here.

Discuss any concerns you have with copyright, trademark, or using real people, places, or things in your novel.

Whether you want to have a character sing a song, want to use a quote from a popular movie, want to sell your fan fiction for money, or want to have characters drink Coca-Cola or shop at Wal-Mart, this is the place to ask whether you’re on the right side of the law.

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Well, over on the YWP I run this roleplay called Welcome to Walmart. As a synopsis, I’ll give you the head post:
Walmart.

Regarded by most as a haven for homeless people and charity Santas, very few know that Walmart is actually the only thing standing between humanity and total destruction. You, a simple Walmart worker, have recently been allowed into this circle of knowledge.

The last known organization opposing the League of Retail after the recent fall of Kmart, it has all come down to Walmart to prevent the utter desolation of the human race through a special task force.

Walmart employee by day, and intergalactic hero by night, it is up to you and your team to defeat the League of Retail, including the mysterious ringleader, a man who refers to himself as Michael Jackson.

Are you up to the task?

Yeah. It’s kind of epic. The last mission they went on was to save International Popstar, Barack Obama from ninja assassins trained by Target. The entire thing has an overarching plot that I can’t reveal incase anyone in it is reading this.
Anyways, it makes me sad that if I ever abridged it or rewrote it as a novel I wouldn’t be able to sell it without jumping through a hundred copyright hoops. Oh well.

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Meh, change the names no one will notice.

The biggest problem in what you posted doesn’t come from Wal-Mart, but from Target. It is technically defamation to claim that they hired ninja assassins to murder someone. The test there is whether a reasonable person could believe it is fact. Since reasonable people wouldn’t, you might be ok with that.

There are dangers to using Wal-Mart, as well, though. If you claim that they did something illegal or unethical, even though they’re the supposed hero of the story, that could be defamation. If something bad happens at a Wal-Mart in your story because of neglect or criminal intent, that could be defamation.

Best to not only change the names, but also get rid of anything that could definitely identify the stores you’re using, like the blue smocks and vests.

Now, you can keep the names if you’re going for a parody. But parodies have rules. You have to be commenting not just on the state of retail sales, but specifically on the real-world stores you’re using.

So if it’s just a superhero story using the stores as a backdrop, that won’t qualify as a parody. But if the point of the story is to shine a light on retail practices, then it might qualify.

Ever watch the show “Superstore”? Cloud9 is obviously Walmart. Only thing missing is the name.

Did it have ninja assassins trying to murder the leader of the free world?

No, but it does have a rather realistic unflattering depiction of Walmart employees.

Nothing wrong with that. Opinions are not libel.

I’m playing Stardew Valley, and Ihave some guesses what “Joja Cola” (Okay, two candidates) and JojaMart might actually be. The Finnish market economy is different (actually we have two grand rivals, the co-op S-chain and then K-chain, the German Lidl trying to kick at them).
I’d presume that giving a different name will do it: if WalMart tries to sue you because you have a horrid market chain named GirMart, they’d just make themselves ridiculous (and admit they’re the horrid GirMart)

Except when some of the actions depicted are illegal. And some of them are borderline.

Illegal or unethical, but even then, the store is not portrayed as Wal-Mart. It may look like an obvious stand-in for Wal-Mart to you, but it is a court’s decision that matters, and the network has a gaggle of lawyers that keep them on the right side of that line.

The point is how much you have to change to create a stand in for a major corporation. The simple fact that Walmart has not challenged this show means this degree is okay (the show is in it’s 4th season so they’ve had plenty of time). And this is a situation where a traditional publisher can assist. Who has as many lawyers as Walmart? The Big Five do. All the lawyers have to do it say its similar, but not the company itself.

I mean that’s literally what every TV show anyway “The people and places in this work are fictional and any similarities to people alive or dead are entirely coincidental”.

Even when you can tell the villain is clearly Michael Jackson or Donald Trump.

You don’t have to change that much, really, but don’t have several things that are unique to the company also be part of your fictional company. If they’re not-Wal-Mart, honest, but the employees wear dark blue and the company’s HQed in Arkansas and they have a motto of Always the _______ price, then the court is likely to find in favor of Wal-Mart.

Not as much assistance as you might hope. Most contracts come with warranty and indemnity clauses which absolve the publisher from infringement or defamation–leaving it on the authors to defend themselves on their own.

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This should answer most questions writers have about copyright, trademark, and defamation.

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Let’s take a moment to talk generally about trademark and merchandise. We’ll use NaNoWriMo as an example since it’s a trademarked term. And, evidently, some Wrimos like to court disaster.

If you have a personal notebook and you write NaNoWriMo on the cover, you’re not in violation of trademark laws. That’s personal use, and it would no more be infringement than writing Walmart on your shopping list.

If your sister is just starting NaNo, and you give her a similar notebook, things get a little more sketchy. But only just. Since both notebooks are for personal use and since it’s a one-off, it’s most likely not infringement. In any event, nobody will care.

If you have a private NaNo group and you make similar notebooks that you give away for free to group members who win contests and such, then you could be infringing on NaNoWriMo’s trademark. It would become a matter of how aggressively the mark owner defends their trademark.

If you give away the notebooks–or even the stencil people can use to make their own–freely and to all comers, you are almost definitely infringing on the trademark. No matter your good intentions, you can’t do that.

If you are selling the notebooks or the stencils, expect a Cease and Desist at the very least. At that point, you’re essentially lawyer bait.

In short, you need permission or a license to make any merchandise bearing the trademark that isn’t for your own personal use. That includes tee shirts, pens, coffee mugs, anything. Even flyers or webpages used to announce meet-ups.

But I’m helping spread the word about NaNo is not an effective argument. Remember that trademarks have to be defended or the owner could lose their mark.

Note: that does not apply to using trademarked names in your novel. Doing that is perfectly fine.

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One addition I hesitate to even bring up. You can use the NaNoWriMo name in your flyers and websites if you do it right. The principle is Nominative Use, and it allows you to compare or relate your thing to a trademarked thing.

If you do it right, it’s fine. If you do it wrong, it’s infringement.

So I’m not going to tell you how to do it here. Soon as I do, you’ll go out and do it, do it wrong, and get your ass sued. Then you’ll say But Sepia told me…, and I don’t need that crap.

Contact an attorney who is familiar with your event or organization and follow their advice.

MLs are required to have disclaimers on everything we create, including flyers.

This [thing] was created by an official NaNoWriMo Municipal Liaison, but was not reviewed by NaNoWriMo. For more information about NaNoWriMo go to nanowrimo.org

We have very strict guidelines on how our trademark can be used. Anything outside of these permissible uses may result in a takedown request. You can find our FAQ about that here:

https://nanowrimo.uservoice.com/knowledgebase/articles/329189-can-i-use-the-nanowrimo-name-and-or-logo-what-s-u

As for ML usage, that’s a whole different beast and is covered by internal documents. That additional usage is covered by the ML agreement all MLs sign when they volunteer… It’s best to refer questions regarding the use of our trademark to the FAQ up there, and the help desk if you have further questions. If you see trademark violations, they can be reported using the link in the FAQ thread.

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It really doesn’t matter what guidelines NaNoWriMo makes. They are neither a court nor a legislative body. They may loosen the legal restrictions, but they may never make them more stringent.

If you’re determined to use a trademark, run it past a qualified attorney. Never rely on the mark holder to tell you the truth.

NaNoWriMo policy is pretty much exactly what the US Patent and Trademark Office suggests. If in doubt, challenge the usage because failure to could lead to loss of a trademark. Trademark’s don’t expire like copyright, they fail due to neglect.

This isn’t Games Workshop trying to trademark “Space Marine” or the International Olympic Committee suing every business in Olympia, Washington for using the term Olympic.

This is people stealing merch money from HQ, selling fraudulent NaNoWriMo classes, and ruining NaNoWriMo on social media.

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