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Intellectual Property and Its Uses In these days of legal battles and litigation that goes on for years, it’s important for a writer to understand how intellectual property is protected and how to avoid infringing upon someone else’s intellectual property rights. There are two specific areas of intellectual property laws in the United States that authors are most affected by:
In the first of two articles, we will discuss ways that trademark law affects writers, and next month, we will look at some angles of copyright law. It is written in the Bible that "A good name is rather to be chosen than great riches, and loving favor rather than silver or gold." (Proverbs 22) A white "Swoosh" on a
shoe Who doesn’t immediately know the above examples describe Nike’s trademark logo, McDonald’s trademark image, and State Farm Insurance’s trademark slogan? The biblical wisdom from Proverbs certainly holds true in the business world where a good name, logo, slogan, or trademark can be worth far more than its weight in gold. Product names, descriptions, and logos function much like "brand names" or may actually be brand names. They distinguish one company’s products or services from another’s and usually give customers needed information to help choose between the many competing resources in the marketplace. Because companies succeed or fail – gaining or losing "great riches, silver, and gold" – based upon their reputation and the integrity of their products and services, they are protective of their rights to trademarks and brand names. So how does a writer know what he or she can safely use in a work of fiction? The use of product names in fiction writing is a well-established practice and is acceptable so long as you are referring specifically to that particular brand of item. For instance, my cop characters in Gun Shy wear Sorel boots, drive Ford Crown Victorias, and shoot bad guys using Glock pistols. But they use a tissue to wipe their nose, NOT a Kleenex® because "Kleenex" without the trademark designation has been determined by a long court battle to be too generic in its usage. The people at the Kleenex® company sought to protect their brand name, insisting we all use the little R-in-a-Circle trademark sign, and courts have ruled in their favor. How often do you see that ® sign in a work of fiction? Never? It just doesn’t belong, so one guideline I go by is that if that sign is pasted all over a particular brand name, logo, or slogan, I avoid it like the plague. In practically every chapter of everything I have written, there is some sort of brand name tossed in. (I am sure this will not be so in my medieval adventure however.) It would be a dull world if we only named stuff generically. Nobody would be wearing Foster Grants, we couldn't travel in Winnebagos, and we could never say our protagonist was using a Weed-Whacker. We’d go out to our boring car, stop at the non-descript restaurant, and drink nameless diet soda on our trip. How boring! Doesn't it tell you a lot more about the character, setting, and story if the text reads: She got in her DeLorean, went to Lucia's on Rodeo, and drank half a bottle of Glenlivet before the salmon arrived... Or: She buckled little Susie into her mother’s rattle-trap Ford Falcon and toodled over to MacDonald's where she tanked up on a 32-ounce Diet Coke after eating two Big Macs and most of Susie’s Happy Meal... The particular products mentioned above tell you significantly different things about the characters, don’t they? Without the product/trademark names, neither passage would be nearly as descriptive. Both characters would be bland as hell, and there would be little of interest in the narration. Acronyms for generic items are always acceptable: RDF (radial direction finder) or GPS (global positioning system) for instance. But there are some acronyms that have been copyrighted or given trademark status. Good examples include DKNY (a fashion design line) or REM (a musical group). Whether the reference you make to an acronym is about something generic or a specific company or product, make sure your reader knows what those letters stand for. So long as you are not perpetuating an untruth, most named products can be used all you want: Skidoo snowmobiles, Max Factor beauty supplies, Sony music products, and Amazon.com. Why would their companies complain? It’s free advertising for them and generates consumer recognition and goodwill. I have to believe that Skidoo would much rather be the choice of good adventure readers everywhere than give up that distinction to their competitor, Polaris! But one key point ~ these are brand names. YOU MUST CAPITALIZE THEM ALWAYS. As soon as you call it a "skidoo," it sounds like it's some sort of generic snowmobile, and the company has the right to cry foul. Capitalizing the name of the product indicates that the item is not generic. It also informs the company that owns the rights that you respect their product or service. Don’t forget that if you use the brand name, you better be referring to the characteristics of the brand you are describing. Don't describe the Skidoo as lime green—that’s Polaris's signature color. Another issue the writer has to consider is whether the reader will have any clue at all about the brand name of the item in question. If not, is it germane to the plot to include it? Should I use "the Komatsu"? Or just call it a backhoe? Will the reader know what I mean if I refer to "the Versace"? Or maybe I should stick with designer dress? What's the difference between a Nodwell and a Hagglund, and does anyone reading my story care? Until author Helen MacPherson brought them up to me, I had never heard of Hagglund or Nodwell, but apparently they are well-known snow machines that travel well in arctic conditions. They are distinctly different in how they do that, though. If your plot requires the reader to know the difference between products, then you have a set of details to very carefully consider in your use of the names. Don't confuse your use of product names in a script or work of fiction with product placement deals in the movies. Pepsi or Michelob or Polka Dot Dairy might actually pay money to be the drink featured in a movie, but that doesn’t happen in books. Remember Reese’s Pieces from the movie ET? Originally, the script called for the candy to be M&M's, but for some remarkably shortsighted reason, M&M wouldn't deal. Instead, Spielberg used Reese’s Pieces in one of the best product placement deals ever made. They couldn’t have asked for better advertisement for their chocolate-covered peanut butter candy. The various media have different kinds of copyright and trademark protections. For instance, in the movie Mask, starring Cher, the original writer had based the story around the music of Bruce Springsteen. In the case of music rights, the user pays the artist, not the other way around. Springsteen apparently had too high a price tag, so the music of Steve Miller Band was chosen instead. If you use lyrics in your fiction, there are special considerations and rules to follow. (More on music rights in Part Two next month.) One more critical side element: If you use a brand name, you have to be careful that you don't use it in such a way that it erroneously puts the company who owns the rights in a bad light. It is a fact that Ford Pintos in car accidents during the late 1970s had rear-end explosion problems, so you can use that as a fact or plot device. But it's not true that Cheetos cause respiratory failure in toddlers. If you chose to have a Cheeto have that effect, then that particular plot point would have to be shown as an unusual incident specific only to that child, not as something everyone should worry about. If you libel or defame a company or their brand name or service, you may find yourself open to legal attack, so be cautious. Or else make up the brand. In Lawrence Block's Burglar mystery series, Bernie Rhodenbarr is constantly picking locks, and the best locks made in the entire world are Rabsons. Well, they are the best locks in the world in Block's books! In real life, there's no such thing as a Rabson lock. So when push comes to shove, you can always create your own brand name and description of whatever it is you are needing your readers to have an intimate look at, especially if you want your GPS or ATV or VHS or HDTV or whatever to have special characteristics or a mix of characteristics from more than one brand. You could even say right in your manuscript that "the ‘Chesapeake’ has all the best details of the Skidoo and Polaris but also includes....blah, blah, blah," and you are off and running with an imaginary snowmobile that could transcend the best known, state-of-the-art models. James Bond does this all the time. Bottom line: Liven up your description, make your stories more colorful, and insert real life into your work by using trademarks and brand names. And you can use all the brand names you want in fiction, though if it goes to stage or screen, the producers have to determine what actual products they will use. There is no sin in using a brand name anywhere in fiction (except Kleenex® without the little R-in-a-Circle), but just make sure you give proper credit by capitalizing it. Websites containing valuable information about this topic:
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