Thursday, January 18, 2007

Using the NAME®™

Here's a question that needs some answers and clarification: When is it appropriate, or even allowable, to use the real name of a company or place when telling a story? Is it ever allowed? Do we get away with it simply because A) they don't find out about it, or B) they choose not to sue if they do? Can they sue? What exactly are we allowed to do, and where may we not write? Especially if a company name is well-known, it seems a trifle silly that it can't be used in fiction, but I've heard stories (not that I've checked up on them to any degree) about authors being sued by the likes of Ford Motor Co. for using real company or product names in their fiction. So, where do we stand? I'd love to see some sort of definitive links on this, including any legal references that may be out there.

And what experiences have you had, or do you know about, where this has been an issue?


lydamorehouse said...

I can't speak legalize, but I can tell you my experiences. I chose not to use Coke as the product Mai hawks in "Fallen Host," but I made very obvious references to their slogan. No one from Coca-Cola sued me.

In my other life as a romance writer my characters eat Doritos and go to IHOPs all the time. My editor has never commented, nor has she requested that I write some kind of fake-yet-similar-sounding-equivalent, nor place the goofy trade-mark symbol on anything.

Kelly McCullough said...

For practical purposes it depends on how you refer to the product or company. If you do it favorably it's generally not a problem. If you do it negatively and it's not satire or integral to the plot, there's an excellent chance that somewhere in your publishing chain someone will ask you to pull it out. Also, there are all sorts of clauses in modern publishing contracts that will leave you hanging out there on a limb with only minimal coverage from your publisher if the company in question does sue.

For legal purposes because of fair use rules, satire laws, and a bunch of other complications, the legal answer is much more complex. Because large corporations have bottomless pockets for legal challenges and most writers do not, I generally advise that it's better to not stir the sleeping giant.

Disclaimer: I am not an intellectual property lawyer. I do have a much better than layman's idea of what I personally can get away with, but if dissing a corporation or product is a major element in your story, read up on the appropriate area of law. I certainly would. There is a large body of law on the topic and it is complex because of the nuances of humor etc.

David D. Levine said...

My story "The Last McDougal's" (Asimov's, January '06) was originally called "The Last McDonald's" and was rejected on first submission because Sheila was concerned about trademark violation. I offered to change "McDonald's" to "McDougal's" (with a couple of other changes within the story, such as references to Ronald McDonald and Golden Arches) if that would make the difference, she checked with her lawyer and determined that would be okay, so I made the change and she bought it.

The problem is not so much actual trademark cops as fear of trademark cops.

Kelly McCullough said...

Hey David,

Thanks for stopping in and adding that. Useful data.