Legal issues surrounding use of cultural references in a novel?

If you're so concerned, go talk to a real lawyer about it. That should clear things up, Look up a Tort Law (Defamation) or intellectual property guy. They may have more info on their site or a cheaper help-resource.

 

Interesting that you found the first article behind a paywall. I just waltzed right in and I assure you, I don't have a subscription.

This was a cause célèbre in our area for ages. The jury awarded Miss Pring a huge settlement that was later reduced before being stricken down completely by the U.S. Court of Appeals for the Tenth Circuit. The dissenting opinion is interesting.

 

You may be able to find it on Google Scholar with 'legal cases' clicked on. Who were the parties? I may be able to find it. Also, year?

 

The second link is basically the ruling. It was the beauty queen vs. Penthouse (who published the article). Not sure if the author was technically a defendant or not.

 

Okay, I saw this case linked by Catriona Grace:

And it's really old law. I would double-check if any of the laws have changed since the 80's. The best thing to do is figure out which state your book takes place in and google the statutes for said state. Most are organized well and make it easy to find their defamation laws.

Okay, here:

https://www.law.cornell.edu/statutes

^ This is the link you want!

 

First, I'm not a lawyer.

The problem is, unlikely clearly objective ordinances on fence heights, etc., these types of issues revolve around the First Amendment so you have to rely on a lawyer or trust your interpretation of the latest court opinion. Even if you don't live in the 10th district, I think it would be most reasonable to trust that Penthouse case as the 'standard' unless some other case since then has established some precedent. So when it comes to the Constitution, it's not 'old' law, but what the 'latest' interpretation says (for example, there was a period in the 1970s when the death penalty was not allowed the U.S.).

 

Yeah, it gets really messy. Because my paralegal student brain has so many thoughts about this. But, yeah. Not all cases are old. But if the original poster is really, really concerned, I think they should just find legal advice.

 

Some sites allow a certain number of free visits to whet the appetite before requiring a subscription. The New Yorker for instance allows 6 I think.

 

It can get a little more complicated. The case may be persuasive to federal courts outside the 10th circuit but is not binding on them. Further, these types of issues often arise in state courts, and state courts (even in those states within the 10th circuit) are not bound by the federal court ruling. Again, it may be persuasive, but they don't have to follow it.

The Penthouse case has negative history in at least two state courts--one in Georgia and one in Texas, in 1984 and 2002, respectively. But you'd want to follow those state court cases to see how they ultimately ended up.

 

I was a certified paralegal for 12 years specializing in civil litigation. I am not an attorney. I supplied the Penthouse case because it was on point with the discussion, because it was local, because it was interesting, and because I'm familiar with it and one of the flamboyant attorneys involved. It was a ruling in a specific district that would've only been cited in cases in districts with similar politics and social outlooks. I wasn't suggesting the case established precedent for the entire country.

 

I know. I was responding to Bruce's post, just to clarify the scope of the precedent. It's still a good case and an interesting one.

 

Only on appeal. The defendants (Penthouse magazine and the author) lost big in the original trial. The author was ordered to pay $35,000 (which he said was about twice as much as he had earned in 20 years of writing), and the magazine was ordered to pay $26.5 million (reduced by the judge to "only" $14 million.

The appeals court ruled that the judge had not properly instructed the jury on the "reasonable person" theory, so a majority of the appeal panel ordered the verdict reversed.The articles don't say whether or not the author and Penthouse were able to recoup the legal fees incurred in defending against the lawsuit. It brings to mind an old saying: "You may beat the rap, but nobody beats the ride." You can prevail in court and still have your life ruined.

 

Yes, writers should be cognizant of the cost and hassle of defending a lawsuit which is why I usually recommend caution.

I sort of agree with the dissenting judge's opinion though, even if the overall story is preposterous, realistic, unflattering scenes can be thinly veiled jabs at real life people. Of course if it really happened it's easier to defend but may still need to be proven in court.

 

I think books have more leeway with pop culture referencing than movies probably cause movies have more visual saturation than books. I seem to recall some hoopla in the 90s over Natural Born Killers where the character of Mickey couldn't be shown wearing a Mickey Mouse t shirt. I don't recall how that turned out as I haven't seen the movie in ages.

In Ya books all through the 80's one of the most used expressions was - Brooke shields smile. As in -- she flashed her best Brooke Shield's smile.

In other YA books it was fun to see the lengths they'd go to hint reference pop culture with made up celebrities - Tommy Hepp was my favorite. And in one book some kids wrote to celebrities to donate items for a celebrity auction to fix up their school and the author mentioned a mix of real and made up celebrities.

 

Intellectual Property (IP) law is complex as are laws pertaining to defamation and slander.

If a publisher or editor says to take a reference out, take it out. If you didn't need their professional opinions you wouldn't use them, so use them - do the things they tell you to do.

Rule of thumb: Never use a copyright or trademark protected name or description without express written permission of the rights owner. A writer does not determine what fair use is - the rights owner, a judge, or jury does.

For discussions about legal issues, contact a licensed attorney or lawyer. A few bucks spent today could save thousands later on.

 

I think that 'Rule of Thumb" is too strict.

With respect to cultural references, we're usually talking about brand names, business names, etc. That's the realm of trademarks (names, titles, etc. typically do not get copyright protection). Taken, as a rule, that permission is required prior to any use would effectively eliminate criticism of brands, companies, etc., because the rights-holder isn't likely to grant permission for such purposes. It would also get rid of comparisons between goods and services. Fortunately, we have nominative fair use, which allows people to use trademarks to identify the goods and services of the trademark owner. It's an important Fair Use principle and one that would be very difficult for the public to benefit from if the default was get permission, litigate it to get an answer, or don't do it.

There is very good reason to push back against these kinds of absolutes in Intellectual Property. IP has public benefits, in addition to private protections, that are a big part of the policy underlying why we have IP to begin with. In the U.S., the Constitution specifically recognizes the right of Congress to establish patent and copyright systems and identifies the policy reason as being a public benefit. Trademarks also serve a public benefit--preventing confusion between goods in the marketplace (which is why the standards for infringement is whether there is a likelihood of confusion between the accused use and the trademark owner's use).

In any event, it does pay to be thoughtful about a use and to have an understanding of the relevant law. But I do not think it is a good idea to so readily yield the rights enjoyed by the public. Of course, if you're working with a publisher they are most likely going to have the final say on the matter, so you'll be bound to follow their guidance, but that does not mean they're correct on the law. It means they're extremely risk averse.

 

This was my thought as well. I wouldn't think twice about a sentence that said "After practice, they went to McDonald's."

I would think twice about writing "After practice, they went to McDonald's but left immediately when a brawl erupted between some rowdy customers and a cashier."

One thing that I didn't think of, is there can be issues if you use a trademark (that has entered the English lexicon) in a way that may dilute their brand. So legally speaking there could be a difference between writing "Before her date, she googled his name" vs "Before her date, she searched his name on Google.com"

I've known that things like Jacuzzi are brand names, but I didn't realize that Dumpster is technically a brand name too.