'lo everybody, gathering some opinions on fair use. Now, I know fair use depends largely on a ton of factors, one of which is the amount of the original production you're using. (For instance, using one line in a song is vastly riskier than using one line from a movie.) Another is use in satire. And sometimes it all comes down to a specific court, because I don't think there's any hard-and-fast rule about fair use. I have two questionable things in my story, both done as comedy and so I hope it falls under satire. One is a part in which I have a Constructicon (from Transformers), described as "purple and green robot," appear and say one snippet of dialog in a two-sentence paragraph. The words "Constructicons" and "Devastator" are used, so there's no ambiguity here. It's a quick in and out, and the punchline of the scene is it's unexpected and has no further context. Is this considered too risky? Is this considered sitting on the fence? Should I change the reference? Would I be okay by just eliminating the use of the names and just having the character obvious by description? Second is I say "You deserve a break today" in reference to Kit Kat. Kit Kat is named, so again, no ambiguity. Should I eliminate the line? Thanks all! Again, I know all people can offer are opinions or experiences on fair use, but let's hear 'em.
Pepsi and MacDonald's are trademarks, which is a very different realm of intellectual property than copyright. Fair use is copyright law, but it only applies to inclusion of excerpts of copyrighted material for very specific purposes along the lines of scholarly works and reviews.
This isn't mostly even about copyright, so it isn't about fair use. I say that based on my own non-lawyer body of knowledge, of course. > One is a part in which I have a > Constructicon (from Transformers), described as "purple and green > robot," appear and say one snippet of dialog in a two-sentence > paragraph. Did you write the dialog, or did you take it from a fictional work about Transformers? If you wrote it, then I don't see it as a copyright issue; it's a trademark issue. You're using a trademarked word, in a context where you're NOT pretending to own that trademark or sell a product with that trademark. So I don't see a problem. > Second is I say "You deserve a break today" in reference to Kit Kat. > Kit Kat is named, so again, no ambiguity. Should I eliminate the line? I'm confused at the use of a Coke slogan for a candy bar, but that really doesn't matter; I don't need to understand. The Kit Kat reference seems like a trademark non-issue again. I'm not sure about the line, since it's technically a line in a song.
In some markets 'have a break, have a Kit Kat' is used in adverts. I for one have never seen the 'break' slogan used for Coke. For me it refers to a Kit Kat.
I was going to chime in with this very point. The slogan as far as I recall is: "Have a break. Have a Kit Kat." Incidentally, the funniest, most imaginative, and dare I say most 'old-fashioned' series of ads in recent times—with a slogan about the product that actually sticks in the head. An ad-man's dream, really. Mad Men come back, all is forgiven!
Regardless of whose slogan it is (frankly most ads I can't make out what they're saying), mentioning it without acting as if it pertained to your own product does not violate trademark. This is why I asked if the OP had read any books where those things had been mentioned. Anyone who has read a fair number of books surely has seen trademarked items named, and short quotes from other works used, and no mention of having gotten permission from anyone to do so. These sorts of questions come up all the time, here and on other forums, and the answer should always be: 1) Did you do any research on what constitutes copyright, trademark, and fair use? Google does wonders there. and 2) If you still have legal questions, don't ask them on a writing forum - ask an attorney.
Maybe it's a US advert that never made it to UK or Canada (?), but I've never seen the McDonalds ad in question. On the OP, I wouldn't have seen the "You deserve a break today" as being particularly Kit-Kat, either. You need to get the ad line pretty spot on for it to work...it's a very short piece to paraphrase, and the confusion we've had here illustrates why!
Neither of these issues have anything to do with fair use. Fair use would cover the use of copyrighted materials. As others have stated, you’re talking about the use of a Trade Mark. Anyway, I can’t see you having any issue with the line “You deserve a break today.” By itself, it doesn’t relate to anything. I guessing though, the point is that the character is then given a Kit-Kat? Again, just the mention of Kit-Kat will be fine. Where you may run into some trouble is if you then have your character dislike the chocolate bar. Or if they die from Ebola, which they caught from the Kit-Kat. Or perhaps if they say something like “No thanks. Only paedophiles eat Kit-Kats.” You could then, maybe, be accused of Libel...
It's not true that fair use isn't applicable to trademark law. There is a fair use defense to trademark infringement codified in the U. S. code. In any event, these kinds of references are common in fiction and aren't generally a problem.
In Canada: "You deserve a break today... at McDonalds!" (a song) "Give yourself a KitKat; give yourself a break". (and then the image of a KitKat being snapped apart) Damn, they're both from the early 80s! I'm old!
Just FYI, it's a US ad that was on where I lived constantly, for what seems like millennia, to the extent that just reading the phrase causes the song to run through my head. If I saw it in a novel, I would be hearing that song, and the link to Kit Kat would confuse me. Edited to add a quote from "burger business.com": "Ad Age rated it the top advertising jingle of the 20th Century." Edited yet again to add: Just this year, McDonald's abandoned their ownership of it, after 43 years. It triggered lots of new stories, which is why I could find information about it so quickly.
Yeah, I sometimes (read: every time) get fair use mixed in with other situations. Anyway, my mind must be going, but I could have sworn "You deserve a break today" was Kit Kat's. A quick Google search shows I've been wrong for so many years. And "Break me off a piece of that Kit Kat bar" doesn't really fit the situation. It's in the subtleties. So that worry is out the window, and I'll try to think up a new line. But I'm showing my age: even the fact that I misattributed the owner means I'm getting too old. But there was no problem with how I used Kit Kat, I now see. One characters asks another to grab one for him, and then the slogan (or, rather, the wrong slogan) is mentioned. The character isn't ever even successful in getting it. A fight breaks out before he can get the Kit Kat. Just a quick mention. But the Constructicon but, you're saying that's ok? The line is sort of a take on their famous "Combine into Devastator" lines, though I don't think the words I use were ever actually used in a cartoon or comic. The Constructicons used a ton of different variations of their "merge into Devastator" but, so there was never one single "catchphrase" the same way, for instance, Soundwave would say, "Laserbeak, eject." The entire appearance, as I said, is a paragraph, something akin to when Optimus Prime showed up in that one episode of Family Guy. I figured if Family Guy could get away with it, or if Futurama, Simpsons, or any other sitcom.... But I wanted to make sure. I did some research on the topic, but I'm the type that will worry no matter what. I always have to ask a human about my specific situation rather than go and read examples and such. As for asking an attorney, I don't know any personally and I'd imagine going and seeing one would have me paying a consulting fee. Don't really have that kind of money. But thanks for the idea. I'll go and search out an attorney forum. I figure you guys would be a first stop, though, since I come here for questions anyway. Familiarity of people over appropriateness of subject, I guess (if that makes sense).
