Can I Say This? Copyright, Trademark, & Writers

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May 18, 2017

 

Writers often look at trademarked products or song lyrics or bits of poetry and ask, "Can I put this in my book?"

The answer to that question can be complicated and rests in two fairly different areas of intellectual property law: copyright and trademark.

These two areas serve two very different purposes and this is important when we consider whether something can be used.
 
Copyright
 
Copyright law exists to protect the creators of artistic communication. It covers images as well as words. Copyright law is a delicate business because it attempts to balance two beliefs: (1) that artists and writers have the right to control and make money from their creations and (2) that people have a right to the information they need. So the law believes that information should be released, but expression should be protected. These two ideas come into conflict frequently.
 
Copyright doesn't cover information, but the artistic expression of information. This is why copyright doesn't protect formulas like basic recipes and facts. It does cover the artistic expression of that information and those facts. So if I write a zany tongue-in-cheek list of outrageous (but carefully researched) facts about animals, complete with puns and jokes, the way I express those facts is protected, but the facts themselves are not. Anyone who reads the article could then put the facts (but not my jokes and puns) into their own article without concern for violating my copyright. [This doesn’t mean there aren’t ethical issues with doing that. We’re only covering the legal side here. Legal and ethical often correspond, but not always.]
 
Copyright also allows for small quotes from larger pieces in the interest of that balance between sharing information vs. protection. So if I quote a line from an essay by a famous author, I'm pretty safe from copyright violation since it's only a small sliver of a larger piece. If I quote a great line from Jane Yolen's Take Joy, for example, that is not going to get me into trouble because of this "fair use" allowance in the copyright law. [Again, ethics apply and my sourcing needs to be clear.]
 
However, quoting a sentence from a long essay or book is one thing, quoting a line from a short poem or song lyric is something else. Song lyrics and poetry are very short artistic forms, so quoting nearly anything from them is actually reproducing a big chunk of the total. And that is risky business. Ethically, it’s fine to quote from a song lyric as long as you make it clear that you didn’t write it, but legally, it’s not. This is a situation where the law is more narrow than the ethics.
 
The good news for those wanting to quote from songs or poetry is time. Copyright doesn't last forever. Old, old works are no longer protected by copyright and are in the "public domain." This means they can be quoted from and published freely. In fact, this freedom is behind the creation of Project Gutenberg (which is a great site, also, for seeing what kinds of things are presently in the public domain.)
 
Trademark
 
Trademark law exists to protect the intellectual property of a company from being misused by competitors. The idea behind trademark is that consumers need to be protected from sneaky companies pretending their products are from a more trusted, reliable, established company. Basically, nothing about trademark law was designed to inconvenience writers. When it does, it's mostly a side-effect of the law, not the purpose of it.
 
The main parts of trademark law that writers should be aware of are (1) avoiding confusion for consumers, (2) associating one product with another, (3) disparaging a trademark and (4) diluting a trademark's unique effectiveness. If you think about it, you can see how the first three of these are specifically designed to keep one company from trying to ruin another, but it can create problems for writers in a variety of ways. First, confusion: trademark law keeps companies from creating products that are so closely similar in design or name as to be easily confused with another product. This is why if you decide to invent your own pretend products in your book and you call them "Coca-Colla" or "Kleanex," you might receive a cease and desist letter from the trademark owners of Coca-Cola and Kleenex. Your new imaginary product treads too closely upon their real one. So you'd be better off to invent "Spiffy Soda" and "Nosecushion" so that there is no similarity. If you're inventing products, make them truly different.


 
Now, you are actually free to use the REAL name of trademarked products in your book (as long as your publisher doesn't have rules against giving companies free advertising), but you need to be careful that your use doesn't run afoul of the rules against linking your work to their product (in other words, giving the impression that your book is somehow directly connected to their company) or disparaging their product. For instance, you wouldn't want to write a novel called, "The Kool-Aid Killer" and have some horrible person running around killing people after he discovers that Kool-Aid poured into a specific fruit juice creates a deadly (but tasty) poison. For one, this would violate the linking aspect of trademark law because book titles are considered a kind of trademark for the book. So you cannot put their trademark into your trademark (at least not without permission and probably payment). Second, the idea that putting Kool-Aid into another drinkable beverage results in a poison that would kill people definitely disparages Kool-Aid. You cannot bad talk a product in your book unless your claim is prove-ably true (and you want to go to court to prove it, because you may have to if you make such a claim).

Also, if you’re thinking about using a phrase in the lexicon like “he drank the Kool-Aid,” yes, that is in the lexicon. But, you’re also going to get a cease and desist letter from Kool-Aid if you put it in a book and it comes to their attention. They won’t sue you. There will be no exchange of money. But they will send you a cease and desist. They have to. Otherwise, they’re letting the lexicon dilute their trademark. And they won’t do that because Kool-Aid has invested an incredible amount of money into that trademark. Having said that, Kool-Aid’s lawyers don’t spend day in and day out reading YA books so there is every chance they’ll never see it and you’ll never get a letter. But if they do see it, you will get a letter. It being in common use will not prevent them from sending a cease and desist letter. It can’t. It does mean they would never successfully SUE you over it (which trademark holders never do anyway … they don’t sue writers over trademark use in fiction. They just send out scary letters because the law requires it of them.) It’s really a question of how “risk averse” you are (that’s how one of the lawyers I asked about this long ago put it). Trademark law isn’t written to attack writers and we have first amendment protection. But the trademark holder also is required to defend the trademark or risk the loss trademark protections. That means the companies WILL send you cease and desist letters and technically could try to sue you over it (especially with something like “drink the Kool-Aid” which is both dilution and disparagement) but would almost certainly lose because of the first amendment. So the question is – how upsetting would it be to get the letter? How much do you want to avoid it? How much risk are you comfortable with?
 
The last part of trademark law that affects writers is dilution. Trademark owners don't want their product names diluted. This means they want consumers to always associate that specific name with their specific product. Over time, some trademarks have lost their connection with the original company. Escalator, for example, is no longer linked to the company that once owned that trademarked product. This continues to happen with trademarked products every day. People casually use words like "kleenex" and "thermos" and even "coke" to mean any kind of tissue, insulated drink container, and soda. But those words are actually trademarks and the companies work very hard to get people to associate those words only with their own product. As a result, if you use a trademark in a generic way, you'll probably get a letter from the trademark holder's lawyer telling you to stop doing that. The trademark owner isn't trying to bully writers. They are actually legally required to send out those letters to prove they aren't abandoning their trademarked names. So, trademark owners would desperately prefer you only use a trademark name when you mean that actual product and that you spell it correctly. Doing so helps protect their intellectual property.
 
Copyright and Trademark and Publishers, Oh My!
 
Many publishers prefer to err on the side of caution in issues related to copyright and trademark, but this can vary quite a bit from publisher to publisher. For instance, some will require you secure permissions for the use of short bits of song lyrics. Others will simply not allow you to use them at all. Still others will handle gathering the permissions themselves. So your experience with a publisher may vary. However, many publishing contracts will include language handing off problems with intellectual property violations to you. So if the music company or trademark holder does object to your use, the publisher may abandon you to the problem. This is why it's good to spend some time researching the law and coming to understand it. It doesn't need to muzzle you, but it's good to be wise.

Jan Fields is a full-time, freelance author and an Institute of Children's Literature Instructor. Would you like to have your own instructor teaching you on a one-on-one basis? Show us a sample of your work here.


Comments

George Busby
May 19, 2017

Thank's Jan Fields for sharing. I was thinking of using a Trademark name in and on the title of my book. So, Children could defy my book with something they love to eat and is part of my title too. I guess I'll have to get hold of the company and get an OK!

Sydney O'Neill
May 19, 2017

Jan, you answered two questions that have come up for me. Thank you!

Tiffany Dickinson
May 19, 2017

Wow, this is complicated! Thanks for taking the time to unravel some of it for us, and particularly to explain the differences between copyright and trademark.

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