1. somemorningrain

    somemorningrain Member

    Dec 31, 2020
    Likes Received:
    United Kingdom

    Legal issues surrounding use of cultural references in a novel?

    Discussion in 'Traditional Publishing' started by somemorningrain, Jan 15, 2021.

    Not sure if 'Traditional Publishing' is the best category to choose for my issue, which is this:

    I remember reading that Twilight author Stephenie Meyer is a huge fan of the band Linkin Park and wanted to put it in her book as the music Bella Swan was listening to, but at the behest of her publishers she had to take it out/ neutralise/ non-specify. This is the conundrum I'm dealing with.

    My issue is using real people's and real institution's names as interacted with by fictional characters. This feels absolutely essential to me for the authenticity and cultural realism of the fiction story (e.g., the sorts of conversations the characters would have with each other; the sorts of people they would rub shoulders with), but is this legal? Or does it put you in legally questionable territory?

    I'm aware of Scarlett Johansson in 2014 suing a French novelist for creating a character who was explicitly likened to her, with her name given and all, and therefore she could sue him for 'making fraudulent claims about her personal life', with the novel deemed to constitute a "violation and fraudulent and illegal exploitation of her name, her reputation and her image" and to contain "defamatory claims about her private life".

    Here are examples of brand names, as well as real life people and institutions who are mentioned by or interacted with by my fictional characters :

    SHOPS: The town of X was 2 miles away, with a Marks & Spencer's and a train station....

    BANDS: "X and I had a common passion for Westlife"; "I was listening to Oasis on my iPod"

    SINGERS: "He told me that John Lennon was his godfather – it was ages before I found out he was just messing with me."

    COMPOSERS: "Composed by James Newton Howard, the original film score was played on piano by my mother..."

    SONG'S: "did a hilarious rendition of Cher’s ‘Believe’"; "Which songs should we do - ‘Sir Duke’? ‘Wake Me Up Before You Go-Go’?”

    DRINKS: "He said I should change my name to Red Bull"

    ACTORS: "He had a whole repertoire of voices he’d do – Helen Hunt, Meryl Streep, Kate Winslet, Hugh Grant, Renee Zellweger in Jerry Maguire."

    CELEBRITIES: "Cliff Richard and Tom Jones had been guests at their wedding"; “Are you still going to do your Michael Bolton routine?"

    MAGAZINE: "she was regularly featured in of Harper’s Bazaar, wearing..." ; "he gave an interview of Playboy magazine"; "Now you’ve gone and told Vanity Fair.”

    FILMS: "she got out a videotape of 'Ghostbusters' so many times..."

    TOILETRIES: "she smelt of Pears soap."

    CLOTHES: "he removed his Doc-Martened feet..."

    SCHOOLS/ COLLEGES: "They met at Christ Church"; "he got into Oxford", "my Harrovian boyfriend "

    CHARACTERS IN BOOKS AND FILMS: "she screamed as if Freddy Krueger were descending on her."; "She pretended to be Scarlett O'Hara..."

    TV PROGRAMMES: "We were watching watched The O.C...."

    FILMS: "The movie 'Steele Magnolias', did any of you ever see that?”

    CARS: "She reversed her Ferrari..."

    LINES FROM SONGS: I understand you don't put song lyric or published poems in your book unless you're a millionaire to pay the copyright, in all the different areas of the globe, to cover all their different regulations, but what about just 2 rhyming words from a well-known song?

    Please note:

    1. In all these instances, it's the character saying it, not the author.

    2. In all of these instances, the status symbol or cultural cachet of the brand name or institution means something, it is far from random/ interchangeable, or it is meaningful for the subsequent or preceding conversation the characters or having or the anecdote they are telling.

    3. Also, making up a random name for a Beatle, fashion designer, or a film-score composer would not do - it would not 'read' with the reader. It would detract from the realism of the characters and the story.

    I spotted a thread on this forum a while ago discussing whether one could ever have a racist character, and the verdict seemed to be: the publishers won't like it; even your characters have to be PC. This make me worried for my book. PLEASE NOTE THAT I DO NOT HAVE any racist, sexist or extremist characters but I fear that even invoking a real person's name like Angelina Jolie or Brad Pitt in their conversations and reveries would be legal thin-ice or legal hot-water.

    I've tried to do some research on this issue, and what I've gleaned so far is: (1) it's OK as long as you're not saying anything derogatory about the real person or the real institution - but even if you're heaping praise and compliments on them, they could still object to their name being used; (2) best pay a lawyer to read through your MS. (But wouldn't a publisher do this or have this level of legal know-how?); (3) Better be safe than sorry and go the generic route, draining your book of any cultural references --- but to me this could seriously impair the liveliness or cultural relevance of the characters and the story.

    I even thought to put in the following disclaimer:

    "This novel is entirely a work of fiction. The names, characters, organisations and incidents portrayed in it are the work of the author’s imagination. Any resemblance to actual persons, living or dead, events, organisations or localities is entirely coincidental.

    "Any references to historical events, real people, or real locales are used fictitiously. This fictional story includes real people and organisations doing things they did not necessarily do in real life, namely, interacting with fictional characters.

    "The views and opinions expressed in this fictional story are those of the fictional characters and do not necessarily reflect the views, opinions or positions of the author."

    Has anyone else encountered this dilemma? Can anyone advise?
    Lifeline likes this.
  2. Steerpike

    Steerpike Felis amatus Contributor

    Jul 5, 2010
    Likes Received:
    California, US
    I make references to brands in some of my stories. It's not a trademark infringement. If you disparage the brand, the brand owner may decide to take action against you, which would be expensive for you even if you win.

    Using real people in your stories is a bit more complicated in that Right of Publicity laws vary state to state (not to even get into variations between countries). In California, right of publicity violations come if you're using the real person's name, likeness, etc. to advertise or sell products. If you titled your book "John Smith Meets Scarlett Johannson" you're going to run into an issue, because I feel that would be a fairly clear case of using that celebrity to sell your book. If they just happen to appear in the book, in passing, that would be a harder case to make. The more prominently they feature in the book, the easier the case would be. Of course, as with brands, if you make one of these people mad and they bring an action against you, it will be expensive to defend it even if you are right.

    Note, too, that in some jurisdictions (like California) right of publicity extends beyond the death of the person.

    If there is an otherwise actionable case against you (e.g. you otherwise violate a right of publicity statute) the disclaimers aren't going to cause you to win in court.

    Traditional publishers tend to be conservative about this stuff, so if you're going the traditional route there's a good chance you will be asked to change this.

    As for non-PC characters--there's no liability there, at least in the U.S. You can have racist characters, homophobic characters, or what have you. If you associate those traits with a portrayal of a real person or company, then there's a problem.
  3. somemorningrain

    somemorningrain Member

    Dec 31, 2020
    Likes Received:
    United Kingdom
    Many thanks, this is extremely helpful. As with many legal issues, so long as you're not 'putting a celebrity's name in your title', it's a frustratingly grey area. I think I need to go through the book and identify which references are perfectly neutral ('just in passing') and which fit the 'may need to change' category - rather than applying a blanket policy of tossing them all out?

    I even thought to leave famous names dashed out (censored) because many will be able to guess who it's referring to, but I've never seen this done before so that may be a bit unorthodox.

    I also thought: maybe you need to write to the person or name you're using for permission. But that also seems extraordinary or unorthodox and could conceivably take 40 years.

    I'm amazed at how the 2010 film 'The Social Network' was able to get away with using their own interpretations and invented speeches and scenes of living people, using their actual names. Clearly much, if not everything, would have been lost had they diluted it with substitutes. But were they only able to do this because of 'big money'?

    How does Sian Lloyd get to write and publish 'A Funny Kind of Love: My Story' about her relationship with UK politician Lemit Opik, without him suing the pants off her - or her publishers being worried that he would?

    How does Liz Jones from the Daily Mail write a published 'diary' in the Sunday supplement about her boorish, insensitive, philandering husband, who is also named? Are you allowed to do these things if you're famous? Or do you have to submit to being written about if you're 'a public figure'?
    Last edited: Jan 15, 2021
  4. Homer Potvin

    Homer Potvin Get off my Balzac... Staff Contributor

    Jan 8, 2017
    Likes Received:
    Rhode Island
    Paging @Steerpike...

    Oh, wait. Never mind.

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