Welcome to ON THE BOOKS, a new LSQ column that focuses on legal and business issues confronting authors today. In this column, I’ll be addressing issues that authors and other creative artists face in their day to day creative lives, with an emphasis on issues like copyright, fair use, trademark, privacy, and defamation law, as well as how to understand common clauses in publishing contracts. Hopefully the column will be fun and easy to follow – I’ll try to keep the info to bite-sized chunks in each post and always happy to respond to questions and comments.
I should start by noting that nothing written in this column is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney (or drop me a line if it’s about something I’ve written here).
Now that THAT legal stuff is out of the way, let’s talk about TRADEMARKS!
I’ve chosen trademarks as the topic for this first column because I’ve been answering a lot of questions in workshops lately about how trademark law works and when/how you can refer to someone else’s trademarks in your writing: for example, if your protagonist loves to drink Sprite or drives a beat-up Volkswagen bug, is it okay to refer to those trademarks in your manuscript?
The short answer is usually “yes”, as long as you’re not using the trademark in a way that might confuse readers about things like sponsorship or affiliation of your work with the brand. Let me explain what I mean by that.
Trademark law was largely created to prevent a competitor of the trademark-holder from using the mark in a way that is likely to cause consumer confusion about the source of a product or service: for example, if you make athletic shoes, you can’t sell them under the “Nike” label if you’re not the Nike Corporation, or licensed by the Nike corporation to do so.
When you use someone else’s trademark in your book, you’re typically NOT holding yourself out as being licensed by, or in any way related to, the actual trademark holder so in most cases it’s okay to say that your protagonist likes drinking Gatorade or eating McDonald’s.
However, if you use the trademark in a way that does suggest some kind of sponsorship or affiliation with the trademark owner, the issue may be murkier. Think about the movie, The Internship (starring Owen Wilson and Vince Vaughan). The plot of that movie so heavily revolves around Google that Google had to have given permission for use of its trademarks in the film and its marketing. In fact, Google reportedly did work with the film’s producers throughout the production process and were generally supportive of the project.
In your writing, as long as you’re simply referring to a trademark, without it becoming a central feature of your story, you probably don’t have a trademark problem. If you are concerned about any particular use of someone else’s mark, you should speak to a literary agent or attorney. However, you should never let fear of the law stand in the way of writing what you want (or need) to write in the first place. Legal problems can usually be handled at the revision or editing stage. Don’t let fear of the law be an excuse for not writing what you want to write at least in the first draft. That’s going to be my ongoing theme throughout these columns: remember that you’re a creative artist and you’re not expected to be a legal expert. If you have questions during the drafting, revision, or publication process, there will usually be someone out there who can help you, but don’t let legal worries stand in the way of creating your art in the first place!