I've been torn between using the town I reside in as my setting, and creating a fictional place. Basically my novel is about a place in the US with hidden fantasy. I'm afraid that local people will not like their businesses or local landmarks included in a fantasy book. I'm unsure of the legalities that could hinder the publishing of the novel. I have created a fictional setting at this point, located in one of the states, but I would rather use the county in which I reside to show the realistic portions of the book. Any thoughts?
An anonymous location that closely resembles the places you know well is a very good setting to use. You'll know the smells, the weather, the nuances of local dialect, many tiny details that make the place seem real to the reader. By all means fictionalize it, though. That will help you avoid inadvertent defamation or privacy violations that could become a legal headache.
Use your town but don't directly name it. You could name streets and name some real places in your county where people go. But if there's a locally-owned bar named Charlie's where everyone goes, you could describe the bar in the general way that the real Charlie's is, but name it something else in the book -- Rusty's or The Cat's Meow or something totally different. Locals will probably recognize it, non-locals won't know the difference, but you have 'deniability' if Charlie doesn't want his establishment in your book. I wouldn't worry so much if you want to describe the characters meeting at McDonald's. I kind of like using the location where you reside and with which you are familiar. You can really give some good descriptions of places and make it come alive. If you add in some fictional places in the town and change the name, i feel like you have the best of both worlds.
I see no problem in using the county and name of businesses in it as long as you don't show them in a very negative light. I think it will be taken care of by the concern publishers if your story is accepted. So, don't worry about it now and just pick whichever is comfortable for you to write. I don't think changing the name of the place and businesses later won't be that difficult.
This advice is marginal. You could still get into legal hot water if the place and people are recognizable, regardless of whether you change the names, If you model real businesses or individuals at all in your novel, you should definitely consult a literary attorney.
Cog is right -- if the business is particularly distinctive and is a centerpiece of the action (especially if it's portrayed at all in a negative light), there is that risk. I was intending more along the lines of the characters meet at the restaurant to discuss their plans for next week, you could describe the restaurant with the real place in mind i.e. the restaurant sets the scene, so the reader can picture the characters going to have a meal, but really to have a discussion. (We sat down at one of the greasy wooden tables with the semi-circular wooden chairs. There were photos all over the walls of the high school football team, going back thirty years. There were also a couple of old posters of the New York Jets, but none of the Giants. Each table had a faux tiffany-style chandelier over it, probably intended to add a touch of artistry and class. After the waitress took our orders, we got down to business...) Maybe the real restaurant had posters of the Giants and not the Jets. Something like that is generic enough that there are a lot of restaurants that might match the description. You might want to avoid the description of a statue carved out of wood of a bear driving a car that the owner's son had carved and placed in the lobby twenty years earlier. If there's something that distinctive, and the restaurant is vital to the setting of the book, then you'd want to consult an attorney. On the other hand, you could ADD a fictional restaurant with such a bear statue to your town that you don't name, but is based on a real town. But if you're doing a more generic description, relying on your memory of a real place that isn't otherwise particularly distinctive, and you're using it as one scene of many in the story, then i don't think you have much to worry about.
I see these types of questions raised often but is there really a risk? Well there probably is but I feel that sometimes it is overblown. I mean South Park and Family Guy get away with completely disparaging celebrities, corporations, landmarks, laws, and ideals on the daily and very few times do they run into any legal trouble. I'm not saying there's no risk but I feel like writers shouldn't immediately think they're going to get sued as soon as they mention something that is trademarked in their novels. I think the only way you could get sued for such a thing is if whatever you used was the complete driving force towards the success of your novel, but if it's mentioned as just an anecdote then it should be fine. Although I'm far from an expert with the business aspects of these things so I could also be 100% wrong.
You're generally also right, although it's not just trademark, but a whole host of other intellectual property and rights of publication and defamation types of issues. And especially for a beginning writer, it is an issue that's so far away, it's probably better to concentrate on getting the story out first, and if it gets to the point where it's about to be published, review it again for these kinds of issues and make some changes then. As with all things legal, it really depends on the particular facts and circumstances. It's impossible to make a blanket statement that will cover every instance. In the restaurant example, if you mention in the story that the characters got food poisoning from the meal they had, that is potentially more problematic than them going in, ordering sandwiches, eating them happily and leaving, never to mention the restaurant again. And of course, anyone could be sued for just about anything. It doesn't mean the case is necessarily legitimate, but it's still a pain in the neck to deal with it. It's always better to avoid it if you can.
south park is not a novel... there's a major difference legally, between a comedy series on a major cable channel or network that's clearly meant to be a parody and a novel depicting what can be recognized as real places that's written by a comparative nobody...
In addition to this, the people South Park pokes fun at are celebrities - people who have deliberately placed themselves in the public eye. That probably reduces their ability to protect themselves from being parodied/satired. Ordinary, non-famous people probably have more right to their own privacy. I'm not an attorney, but that's the way it looks to me.
What is the legal distinction? I see a distinction as far as level of proof and a distinction as far as the amount of damages that might be claimed. But an artistic piece that is put out for public consumption, whether as a novel or as a television show could be subject to a lawsuit based on a right to publicity or for some sort of defamation or other harm to reputation claim. A novel could also be parody. I'm seeing this as more of a difference based on the facts rather than on legal principles, other than the obvious issues of FCC regulatory authority involving public good or obscenity, which would cut more toward a restraint on the television show rather than on a novel.
if you're going to argue with what is established fact to those of us who've been long in the writing business, then i suggest you consult a literary attorney for the details on the whys and wherefors...
Unless a place is unusually distinctive, I am not sure how much claim they'd have to being described loosely in a novel. You don't want a flowery overdetailed description anyway. If you're describing something to the point where it clearly identifies with one privately owned business, you might be using a bit too much detail anyway. If you use only relevant details, you can probably create a feel for the scene without opening yourself up for lawsuits. Most people likely won't see the same things you do anyway, so it's not as if you're giving them an exact picture. I've based some places off of real places I've been to. But I think I kept it general enough so there's no way to really tie it to one place or another.
