Legal issues surrounding use of cultural references in a novel?

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".
https://www.theguardian.com/film/2014/may/14/scarlett-johansson-sues-french-author

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?

 

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.

 

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?
https://www.amazon.co.uk/Funny-Kind-Love-My-Story/dp/1844545318

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'?

 

In Jackie Collins 'Hollywood Kids' (1994, 2001):

p. 3 Soon he would be sixty-two – like Clint Eastwood, age suited him.

p. 5 As their car left the Levitts’ driveway she snuggled closer to her husband, taking his hand and moving it under her expensive Valentino skirt.

p. 11 A half-naked movie star and a world-renowned director. What The Enquirer wouldn’t give for this picture!

p. 19’You got non-alcoholic/.’ He asked, wishing he could grab a can of ice-cold Miller’s and demolish it in tree great gulps.

p. 23 Decision made. No going back now, she was working for Style Wars – the thinking Hollywood executive’s guide to the real world, or what they imagined was the real world.

--- I think maybe this publication is fictitious? I’ve not been able to find it online.

p. 24 Investigative reporting was for force – she’d covered everything from the Anita Hill Washington debacle to political screw ups, the war in Iran, and several juicy Wall Street shenanigans.

p. 26 Since Phil’s death she’d had one semi-serious relationship. Somehow – against her better judgement – she’d gotten involved with one of Rosa’s colleagues, a Kevin Costner-lookalike weatherman, who was two years younger than her and not the fastest brain in the West.

p. 28 Bobby’s feet hit the running track at UCLA. He was renting a small house in the Hollywood Hills, but he’d soon found that jogging up there was a chore. His first day out he’d bumped into Madonna and her bodyguards. Jogging was not supposed to be a social occasion, it was work – gut-strengthening, heart-pumping powerful work.

p. 28 Jerry Rush. An icon. A legend. Up there with Burt and Kirk and Greg – all the great starts from the fifties and sixties.

 

RE: The Social Network, politicians, etc., these are public figures and it is very difficult for them to win defamation lawsuits in the U.S. Much more difficult than for the average private person. Not sure about in the U.K.

Putting someone’s name in a title, in advertising, etc is more an issue of trademarks or right of publicity.

 

I don't know about people, but using real brand names without permission is generally OK. Check out Max Barry's novel "Jennifer Government." It opens with a Nike executive paying criminals to kill people for their shoes as a guerrilla marketing campaign, and it gets even crazier from there. If he could get away with that, you can manage a few references.

 

That's still risky in my opinion since its very abhorrent behavior. Nike might have been able to get an injunction to stop the sale of the book if the executive chacharacter had similarities to someone on the Nike board of directors (and Nike cared). Whether they would win is debatable, but if I had a WIP I'd probably create a fake athletic apparel company called 'Fortuna' or something and let any editor decide if it should be changed if I had a plot like that.

 

Well, Barry's novel is an explicit satire of American corporatism, so the use of real brand names was essential to the story; at one point, Visa and Mastercard literally go to war with each other. Touches like that would have been a lot less impactful without the real names. As for getting sued, I imagine Barry would have relished it.

None of that directly concerns the OP (though I'd still recommend the book, because it's awesome), but it serves as an extreme example of the general principle. Things like brand names and titles of songs, books, or movies are generally safe to reference in fiction because they're protected by trademark, not copyright. Authors write lines like "Joe grabbed a Coke and plopped down on his couch to watch Marvel movies on Disney+" all the time without any worries. I've never heard about the Twilight/Linkin Park story, so I can't comment on that, but I think that all of the given examples would be fine:

Song lyrics are tougher because they are copyrightable and fair use is decided on a case-by-case basis. You may be able to get away with "2 rhyming words from a well-known song," but you may not, and the only way to be absolutely sure is to try it and see what happens. Are you willing to take that chance?

In any case, if you're really concerned, your best bet is to consult a real lawyer, not some guy on the internet. I think that every writer should learn the basics of copyright and trademark law, but when it comes down to the details you'll want an expert opinion.

 

Looking at Barry's book, it's more of a satire/parody which gives a lot more latitude in referencing pop culture, so his publisher was probably not really concerned about legal issues.

 

"Touches like that would have been a lot less impactful without the real names." ~ @AntPoems
That's exactly it. It would be maddening for legal or publisher advice to be "To be on the safe side, use nothing whatsoever from real life". The soul of the story would be etiolated! What a drab, flat story that would be!

As Ian McEwan meditated on the issue through the lens of fiction in 'Atonement':

"I've regarded it as my duty to disguise nothing - the names, the places, the exact circumstances - I put it all there as a matter of historical record. But as a matter of legal reality, so various editors have told me over the years, my forensic memoir could never be published while my fellow criminals were alive. You may only libel yourself and the dead. The Marshalls have been active about the law courts since the late forties, defending their good names with a most expensive ferocity. They could ruin a publishing house with ease from their current accounts. One might almost think they had something to hide. Think, yes, but not write. The obvious suggestions have been made - displace, transmute, dissemble. Bring down the fogs of the imagination! What are novelists for? Go just so far as is necessary, set up camp inches beyond the reach, the fingertips of the law. But no one knows these precise distances until a judgment is handed down. To be safe, one would have to be bland and obscure. I know I cannot publish until they are dead. And as of this morning, I accept that will not be until I am. No good, just one of them going. Even with Lord Marshall's bone-shrunk mug on the obituary pages at last, my cousin from the north would not tolerate an accusation of criminal conspiracy." (p. 370)

Only in rare cases can "displace, transmute, dissemble" work - with everyone colluding with the dictum of "Think, yes, but not write" e.g., 'The Devil Wears Prada' which surfaced in the news recently with a click-bait headline:
https://www.dailymail.co.uk/femail/article-9849975/Brutal-backlash-Devil-Wears-Prada.html

And here is an interesting court-case on the point @Selbbin and @big soft moose raise about provable truths vs defamation:
https://www.nytimes.com/1994/11/03/us/psychoanalyst-loses-libel-suit-against-a-new-yorker-reporter.html

A Wikipedia summary of the Malcolm-Masson case:
Articles Malcolm published in The New Yorker and in her subsequent book In The Freud Archives (1984), triggered legal challenge by psychoanalyst Jeffrey Moussaieff Masson, the former project director for the Sigmund Freud Archives. In his 1984 lawsuit, Masson claimed that Malcolm had libelled him by fabricating quotations attributed to him.
Malcolm claimed that Masson had called himself an "intellectual gigolo". She also claimed that he said he wanted to turn the Freud estate into a haven of "sex, women and fun"; and claimed that he was, "after Freud, the greatest analyst that ever lived." Malcolm was unable to produce all the disputed material on tape. The case was partially adjudicated before the Supreme Court, which held, against Malcolm, that the case could go forward for trial by jury. After a decade of proceedings, a jury finally decided in Malcolm's favor on November 2, 1994, on the grounds that, whether or not the quotations were genuine, more evidence would be needed to rule against Malcolm.

 

That's definitely another route around the mountain. But how on earth did you "ask Bruce Springsteen for permission to feature him in a novel"? Is there some database of celebrities' email addresses and phone numbers? Maybe you're a celebrity yourself and have him on speed-dial?

The range of responses you got are probably the reason Ian McEwan writes: "But no one knows these precise distances until a judgment is handed down. To be safe, one would have to be bland and obscure." You just never know what response you're going to get. Some will be good-natured like Bruce Springsteen; others will seize the money-making opportunity; others will find some other qualm. I imagine one would encounter the full spectrum of personalities from easy-going to suspicious to avaricious.

 

Ooh, I just remembered this! A few years ago, I saw a call for submissions for an anthology of SF stories about the Beatles. As luck would have it, it's still online, and it includes some relevant copyright advice from Cory Doctorow.

https://www.google.com/amp/s/michaelaventrella.com/2019/03/22/across-the-universe-submission-guidelines/amp/

 

You might find the following case interesting reading.

https://www.nytimes.com/1981/07/19/nyregion/writer-s-plight-a-libel-suit.html

https://law.justia.com/cases/federal/appellate-courts/F2/695/438/443613/

 

Suddenly I'm thinking Yellow Submarine Time Machine.

 

they deserve each other

 

Sounds fab! I did have a fun idea based on the "Paul is dead" legend, but I was working on something else at the time, so I skipped it. Maybe one of these days I'll give it a go.

 

The first article was behind a paywall, but I take it from the second article that this was a 2-1 decision in favor of the author/publisher, so this should give everyone a good idea that these things aren't always so simple: the plaintiff wasn't even mentioned by name but it was clear she was the one that was meant, but two of the judges felt the unflattering elements of the story were so unbelievable no reasonable person would think it's intended to be a true account, but the other judge disagreed.

 

Interesting. I was able to read both (only just - "You're almost out of free articles") and it seems that [1] there was not enough diversity of characteristics between the fiction character and the person:

'The courtroom battle between attorneys for Miss Pring and Penthouse was largely a fight over one question: Did Mr. Cioffari base the character of ''Charlene'' on Miss Pring, or did he not? Mr. Spence argued that he did. In addition to baton twirling, Mr. Spence said, ''Charlene'' and Miss Pring shared at least 15 other characteristics.'

But also, [2] the characteristics portrayed were morally repugnant and not sufficiently balanced out with redeeming features. Possibly the writer gambled on making the character so contemptible and ridiculous that everyone would agree it's a work of fiction, but this backfired and it was taken as just portraying the real person in an unfairly negative light. (I read somewhere that a protection against people thinking your characters are about them is to make them poorly endowed - you can then be sure no one will come forward to sue you).

Does the following disclaimer offer no protection?: "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." --- or perhaps this disclaimer arose BECAUSE OF this 1981 court case about Philip Cioffari's erotic fantasy about the Miss America pageant?

Then you get people explicitly fictionalising real life, as in this novel by Kate Moses about Sylvia Plath - as though there aren't enough biographies, diaries and letters already:

https://www.goodreads.com/book/show/210301.Wintering

Wintering: A Novel of Sylvia Plath
by Kate Moses (Goodreads Author)

3.77 · Rating details · 1,353 ratings · 135 reviews
This engrossing debut novel depicts Sylvia Plath's feverish artistic process in the bitter aftermath of her failed marriage to Ted Hughes--the few excruciating yet astoundingly productive weeks in which she wrote Ariel," " her defining last collection of poems.
In December 1962, shortly before her suicide, Plath moved with her two children to London from the Hughes's home in Devon. Focusing on the weeks after their arrival, but weaving back through the years of Plath's marriage, Kate Moses imagines the poet juggling the demands of motherhood and muse, shielding her life from her own mother, and by turns cherishing and demonizing her relationship with Ted. Richly imagined yet meticulously faithful to the actual events of Plath's life, Wintering is a remarkable portrait of the moments of bravery and exhilaration that Plath found among the isolation and terror of her depression

Perhaps this was allowed because it was empathetic to the person it was based on and/or because the person it's based on is dead (Ian McEwan: "You may only libel yourself and the dead"). Paradoxically in this case, being "meticulously faithful to the actual events of Plath's life" was a good thing; no displacing, transmuting or dissembling required.

 

It sort of backfired but in the attached decision (as far as the case got in the us courts I think) the author won the 2-1 decision.

 

Oh, I need to read the second one in more detail. From a quick scan, this jumped out:

'Penthouse did not present the article as fiction. It did not make the usual disclaimer of reference to no person living or dead. In the table of contents, the article is characterized as "Humor."'

So perhaps this disclaimer would have saved them a lot of money after all: "This story 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."