1. Dagolas
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    Dagolas Banned

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    Would I get sued if

    Discussion in 'Publishing' started by Dagolas, Feb 6, 2012.

    Would I get sued if I mentioned:

    -Coca-Cola
    -The Internet
    -A famous person's name (Michael Jackson or something like that)
     
  2. UrbanBanshee
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    UrbanBanshee Member

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    No one person owns the internet so mentioning it is fine. In fact it would be a bigger problem if your story took place when there should be internet but no one acts like it does. (For example, a character wouldn't have to track down a marine biologist to find out what dolphins eat, they could check online)

    Product names are best left out because it could seriously date your story, or can feel like a forced pop reference. If your main character drinks nothing but coca-cola and then the company goes bankrupt in the next 3 years the reference will feel out and out of place.

    As for suing, with brand names I can't say for sure. It has something to do with copyright and product placement. A movie gets a deal with Coca-cola so they get money to show Coca-cola products, but the movie can't really show the product without the deal.

    The biggest concern is slander. If you go on, and on to portray a celebrity (or any other real person, that includes family) in a negative light and especially if it has real world impacts for the worse for them they can sue you for slander. Writing a story about your mean neighbor and use her name and she can sue for slander.

    I'm not savy with all the legal ins and outs, but personally I think it would be best to stay away from pop references. Does it matter if your character chooses Cola over Pepsi? Or even a off brand soda? It shouldn't, and if it does, make up your own brand. Pop references get old fast and won't help a story.
     
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  3. Kallithrix
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    Kallithrix Banned

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    That, quite frankly, is ludicrous. a) Coca Cola is THE biggest brand in the world, and has been around for over 100 years, and b) what;'s wrong with a story being dated? most stories, while containing a timeless element, are situated very firmly in a particular time period, and this actually HELPS to establish the story and create resonance with the reader. In 200 years, if the book is still being read, people will be referring to those 'dated pop references' as clever literary devices to establish context, or studied for historical detail of what people in the 21st century drank.

    I don't think the same applies to novels - for instance, you can say your character drives a BMW without having a sponsorship deal from the car manufacturer. But as you say, you can get in hot water if you disparage or otherwise bring into disrepute a big brand. They have battalions of lawyers waiting to financially ruin anyone who damages their image or reputation.
     
  4. jazzabel
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    jazzabel Contributing Member Contributor

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    I think mentioning brands and people in a matter-of-fact context (like "he was a Michael Jackson fan" or "he took a sip of Coke") is perfectly fine. Even writing "unauthorised" biographies is acceptable, but this may bring on litigation especially if the person is still living. So in that sense, better not include any value judgements about famous brands or people (unless they were convicted of a crime and a negative reference is a matter of common opinion, like about Gary Glitter, or Charles Manson).
     
  5. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    No, you can't get sued for any of that. In terms of copyright, names cannot be copyrighted, so use of them cannot be infringement.

    Defamation is a slightly different story. You can be sued if you make a defaming statement about a living person or a company. It's not usually an issue, and probably not applicable, but it might be worth having a look at the legal principles.
     
  6. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    brand names are a 'trademark' issue... not a 'copyright' issue... and can be freely used in print fiction, non-fiction and articles without a problem, as long as the reference isn't derogatory, which could bring on a lawsuit, as noted above...

    all who are new to writing should study the ins and outs of the trademark and copyright laws from the get-go... do it here:
    www.copyright.gov
    www.uspto.gov
     
  7. Dragon Boy
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    Dragon Boy Member

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    You can use trademarks freely and I think it's a good idea to do so. If you say that one of your character grabs a Snickers instead of a chocolate bar, it creates a more vivid image in the reader's mind.

    I would be careful about using another person's name though, as it could easily become defamation unless you have their consent ( Which would be hard to get in the case of Michael Jackson with him being dead etc. ).
     
  8. Dagolas
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    Dagolas Banned

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    Honestly for the name I wanted to use "Einstein" in a phrase, where I actually use it positively.
     
  9. EdFromNY
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    EdFromNY Hope to improve with age Supporter Contributor

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    Then you should probably refrain from answering a question beginning, "Would I get sued?" Your response was based, not on legal considerations, which the OP asked for, but your own personal predilections. These, from the OP's standpoint, are irrelevant.
     
  10. live2write
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    live2write Contributing Member

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    If you mention named like Coca-Cola or Pepsi you will not be sued because it is trademarked, however using the trademarked logo can get you sued because it is a form of visual branding that is identifiable to the company. I have read many books that used the names and I have yet to find a book where in the copyright section had a listing that it is a trademark of such and such company.

    However on the side note you can be sued for using a friend or family member in a story without their written consent. However with celebrities I am unsure.
     
  11. joanna
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    joanna Active Member

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    No, you wouldn't get sued. Read some popular contemporary literature and you will see that it is done all the time. In fact I agree it's a fine idea to use name brands to establish a time frame. (Obviously, Coca Cola has been in business for like forever and isn't going out any time soon, as mentioned, but even something more time specific wouldn't really matter.) In my own story, cell phones have just become popular, but nobody's texting yet. Nothing wrong with letting your audience know a general time frame.

    As said, only if you said something negative about a product could you get in trouble. Certainly you can mention Einstein.
     
  12. louis1
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    louis1 Contributing Member

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    just call the drink cola, as say he goes to the concert of the greatest pop artist who ever lived. (for example) problem solved. then write your whole book and when you're about to get published ask if you can change for MJ and Pepsi they will tell you then, i think that it does not really matter as long as you're not getting published.
     
  13. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    Or you could do it the other way around. Write it without worrying about defamation/trademark issues, and if it gets taken on by a publisher then the legal dept will be able to tell you if there's a problem.
     
  14. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    yup!... that's what they have legal departments for, among other things...
     
  15. AndrewH
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    AndrewH New Member

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    Disclaimer: I'm not a lawyer, not your lawyer, and this is not legal advice. I'm more familiar with these issues as regards to software, but the same principles apply.

    The only way not to get sued is not to do anything. Ever. Even that's not sure-fire. People can (and do) file suit over really trivial, obviously legal things. You could sue your neighbour for being ugly. Sure, it'd get thrown out before a judge even saw it, and you'd probably get fined for being a moron, but you could do it. Whether a suit is likely to succeed or not is a different thing. Lawyers often fire off cease and desist letters as a means of intimidation, even if they know the activity is not infringing. . The two areas of law you need to look at for your examples are libel (written defamation) in the case of a person, and trademarks in the case of a product or company.

    Trademarks are designed as consumer protection. Although companies often treat it as a form of ownership, the purpose of a trademark is a guarantee to a customer that when they see a registered mark, it is endorsed by the company in question (and not some other random company who is using the mark). You may get in trouble if you use coke in a manner that suggests your book is published or endorsed by Coca-Cola (say, a big red circle on the cover, with their logo on it), but just referring to the product in a book is unlikely to get you in trouble. Movies (and computer games) can get in trouble if they show a particular model of car sometimes, as the car manufacturers actually have a copyright on the aesthetic design of the car's body, but that's not really applicable.

    Defamation, I know less about. Some people (or their estates) are really finicky, and throw money at the courts to try and get any mention of a person cut. In general, if you keep yourself to facts, stay away from anything contentious, and especially if the person is of historical note, you're less likely to get in trouble. Mentioning that there was a Michael Jackson song on the radio, or that Einstein discovered e=mc[SUP]2[/SUP] isn't going to cause a fuss.
     
  16. SeverinR
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    SeverinR Contributing Member

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    If they gave fines for being a moron, 1-the goverment would get rich, 2-the politicians would not last long. Morons in masses will overwhelm an election. (please no examples from any side, we don't want a political battle here.)

    They pay court fees, and can be made to pay for the legal fees of the other side, maybe punitive damages if abuse can be proven in a counter suit. (I don't believe stupidity is an abuse, although it is severely abuse by some.)

    Basically-anyone can sue anyone for any percieved abuse/damage for any reason, and ask for anything to cover the "damage".
    So I believe the OP is asking "would the situation mentioned have a reasonable person or entity file for damages in a civil court, and have a fair chance of winning?
     
  17. AndrewH
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    AndrewH New Member

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    I was talking about vexatious litigation. If you annoy the courts by obviously wasting their time with meritless cases, you're going to get a slap on the wrist.

    Yeah, which I went on to explain. I just wanted to dispel the lingering idea that if you do nothing wrong, you won't get sued. That sort of thought process makes stuff like intimidating-but-baseless C&Ds even more effective, and can often scare people into acceding to someone, just because they own more lawyers.
     
  18. Anniexo
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    Anniexo Member

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    Stupid question here (feels like I already know the answer but no harm in making sure) but does it need to be written consent all of the time? Because I have a character named after a friend (First and last names have been swapped since he has them kind of names) and the character looks like him too, but he hasn't written down that I can use this character, but he was very pleased to hear I wanted to use said character.
     
  19. Kallithrix
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    Kallithrix Banned

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    Do you intend to make this character a figure of ridicule that might upset your friend? Is there any reason to suppose they might suddenly revoke consent and sue the ass off you?

    If not, then I'd say you're pretty safe.
     
  20. Anniexo
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    Anniexo Member

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    I'm safe then, since I also keep him up to date what the character is doing to see if he likes it or not, so far he likes it, so it's all good.
     
  21. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    if you don't get it in writing and the friend changes his mind later, after the book is published, then you're screwed... and, since people are prone to changing their mind and friendships rarely last forever, it'd be best to get a signed release...
     
  22. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    If you are writing a story about, or modelled upon, real people, you had better consult with a literary attorney. You're clog dancing in a minefiled.
     
  23. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    yup!... that, too...
     

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