Branding and Trademarks

by J.T. Ellison

Can you use real people, places and events in your fiction work without being sued?

This topic pops up from time to time, and it seems like there are too many people who don’t know the answers, so I thought we could try and sort it out.

The short answer is yes. You can use brand names and trademarked items in your books. You can use real people and real places.

What you can’t do is slander or libel.  In other words, any defamation of character isn’t allowed.

In law, defamation (also called calumny, libel, slander, and vilification)
is the communication of a statement that makes a false claim, expressly
stated or implied to be factual, that may give an individual, business,
product, group, government or nation a negative image. Slander refers
to a malicious, false, and defamatory statement or report, while libel
refers to any other form of communication such as written words or
images. Most jurisdictions allow legal actions, civil and/or criminal,
to deter various kinds of defamation and retaliate against groundless
criticism. Related to defamation is public disclosure of private facts
which arises where one person reveals information which is not of
public concern, and the release of which would offend a reasonable
person.[1] "Unlike libel, truth is not a defence for invasion of privacy."[2] **

Okay, so now that we know what we’re dealing with, why does this question keep coming up, again and again? It seems like common sense that you can talk about a real person but not talk badly about them. Right?

Well, maybe not so much. The media gets away with salacious tidbits that are utterly unfounded all the time. Any celebrity will tell you they don’t even look at the tabloids because of all the hurtful, hateful nonsense that makes up the headlines.The reason they get away with it is because these people have chosen to put themselves in the public eye, and somewhere along the way, they abdicated their right to privacy. There is a rule of law called the "Public Figure Doctrine" that applies to celebrities, politicians and the like:

Special rules apply in the case of statements made in the press
concerning public figures, which can be used as a defense. A series of
court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official
(or other legitimate public figure) to win a libel case, the statement
must have been published knowing it to be false or with reckless
disregard to its truth, (also known as actual malice).[13]

Under United States law, libel generally requires five key elements.
The plaintiff must prove that the information was published, the
plaintiff was directly or indirectly identified, the remarks were
defamatory towards the plaintiff’s reputation, the published
information is false, and that the defendant is at fault.

The Associated Press
estimates that 95% of libel cases involving news stories do not arise
from high-profile news stories, but "run of the mill" local stories
like news coverage of local criminal investigations or trials, or
business profiles. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits. **

So it seems there is a certain amount of caveat emptor (buyer beware) to any person who proceeds into a public life.

Technical jargon aside, how do you, the fiction writer, decide how far to take things?

I again have to draw on my own experience, so bear with me. My character in a homicide lieutenant in the Metro Nashville Police department. It is a real position in a real environment. I set my series in Nashville, and use local landmarks, restaurants and streets to lend both authenticity and recognition to the books. I have real people — in ALL THE PRETTY GIRLS, there is a reporter named Laura McPherson, who worked for Channel 4 (NBC). Real person, who was thrilled to be included. I’ve continued using the actual names of real reporters in newer books for a train of continuity.

I especially like using Nashville’s landmarks and restaurants. We’re such an eclectic town, with a broad and diverse array of social and cultural highlights, so it helps me set the stage. In a city of wild dichotomies, people who subsist on fare from Radius 10 and Sambuca and attend the symphony at the Schermerhorn are vastly different from those who go to Captain Ds or Waffle House and spend their time at the Grand Ole Opry.

I use trademarked items as well. Kleenex. Diet Coke. Starbucks. BMW. Taylor drives a 4Runner. I always use the proper names of cars: it a great, subtle tool for character development. A man who drives a 2008 Prius and a man who drives a 1967 Mustang are going to be very different people, and in one swift brushstroke I’ve explained that. The same for someone who drinks Diet Coke instead of Coke. The same for someone who goes to Starbucks instead of making coffee in their own home.

Is it lazy for me to use these little daily details to flesh out my characters? I don’t think so. Sometimes it’s easier to describe a ’67 Stang instead of a flowery exposition on a muscle car.

But what I can’t do is use a real place, a real person, a trademarked item in any way that isn’t publicly verifiable. I have taken real figures and turned them into fictional ones, to protect the innocent, and myself. But I can’t write a real person into the book and have them do something illegal or out of character.

For example – I can’t take a newscaster, use their real name and give them a virulent coke addiction. I can’t use Diet Coke in the commission of a crime if it is something that isn’t manipulated by the character – meaning I can’t blame Diet Coke. I can use a can of Diet Coke to bash in a head, I can’t say Diet Coke is responsible for driving the villain crazy by removing a portion of the caffeine and thus driving them to commit the crime.

There are strict limitation to using real people and places, yes. But it’s not that hard to get around. In 14, I needed a bar that was next to a strip club. Yes, there’s plenty of places in Nashville that fit the description. But in this particular case, I cheated and moved the geographical location. I’m allowed. It’s creative license. Can I take the Parthenon and put it on Legislative Plaza? No. But I can use fictional locations and manipulate them into real locales.

A fantastic example of an author who has used a real character in her books  but fictionalized him is Charlaine Harris’s Bubba. We all know it’s Elvis. He’s not dead, he’s a vampire. But Charlaine never says it’s Elvis. She uses a beautifully subtle, wink, wink, nudge, nudge scenario to poke fun at the cultural phenomenon of people who believe Elvis is still with us.

Which leads us to the dead. Are they sacred? Can you not discuss people who have passed? Of course you can. Another example is Tess Gerritsen’s THE BONE GARDEN. Tess uses Oliver Wendall Holmes, a very real character, to shape a fictional world. She does is brilliantly, and it’s obvious how much effort and research went into Holmes’s character.

So take heart, writers. You can use real people, places and trademarks in your novels.

Do you have a favorite famous place or person who makes an appearance in a book? And does anyone from the legal community care to weigh in here?

Wine of the Week: 2005 Huarpe Lancatay Cabernet Sauvignon

** All citations from Wikipedia

PS: I must take a moment and give a huge, public thank you to everyone who signed my Get Well Card at Bouchercon this past weekend. I can’t tell you how much it meant to receive a card signed by all my favorite people, and I was literally in tears, of joy and thanks, of course, reading all of your inscriptions. I love you all, and am so sorry I missed you. And an especial thanks to Miss Zoë who arranged this incredibly lovely surprise. You are the greatest, babe. XOXO

21 thoughts on “Branding and Trademarks

  1. Andrew Prentice

    The absolute king of “real people” usage has to be James Ellroy. Sure, he waits for them to die, but J. Edgar Hoover, John F. Kennedy, Marilyn Monroe and others get lacerated in American Tabloid.

    Reply
  2. Zoë Sharp

    Hi JT

    You are very welcome!

    Excellent points, and the laws of libel are much more vicious, it seems, in the UK than elsewhere.

    It’s worth mentioning that these laws also apply to websites, particularly those where the moderator has any editorial control over the content. In other words, if the moderator ever pulls a comment or post for any reason, they are deemed to have editorial control and they will be held responsible for any defamatory comments left running, knowingly or unknowingly, on the site.

    But then, there are way too many anonymous keyboard heroes out there …

    Fascinating post.

    Reply
  3. J.D. Rhoades

    You got the legal end pretty well covered, at least as far as this simple country lawyer knows. I do use a lot of real places in North Carolina: The Blue Ridge Parkway in SAFE AND SOUND (although The Devils’ Throne is a complete invention); one of the gunfights in THE DEVIL’S RIGHT HAND takes place in an actual location in downtown Fayetteville. As far as real people: TDRH does open with a scene of two knuckleheads arguing about Britney Spears, which is my little Tarantino homage. Markey D, the stoner mercenary in SAFE AND SOUND, is based on a real person, an online friend who asked me to put him in a book. He’s not a mercenary, though, he’s just a really funny guy. He’s a Gulf War vet who lives in Germany. Yo Markey! RESPECT…..

    Reply
  4. Dana King

    Excellent, thought-provoking post. My stories are based in Chicago, and I use real places whenever I can, unless somehting nefarious takes place there that could be associated with the location. (Such as a strip club owned by a member of the mob. I made that one up, as well as a mob-owned restaurant. All the other restaurants were real.)

    I’ve never used a real, live person by name, except in passing, using concept that are well established in their persona. (Not always the most flattering, though.) I’ve also used some actual, dead, mob bosses to lend historical accuracy.

    And my detective drinks Coke, not Pepsi. No offense to Pepsi, he just prefers Coke.

    I’m happy to see you’re feeling better. I must confess, I was sorry to hear you had to miss Bouchercon, but was flattered Zoe recognized my name from comments. Sort of like being a member of the Murderati Auxiliary.

    Reply
  5. toni mcgee causey

    Very interesting, JT. I use a combination of real areas, but fictionalized specifics for locations for this exact reason (especially since Bobbie Faye tends to be blowing something up, or present when gunfights break out). Not exactly the positive PR spin most real locations would want.

    Reply
  6. j.t. ellison

    Andrew, great example!

    Zoe, I had started to talk about the UK libel laws, but I don’t know enough about them. I do know they are much, much stricter than in the US, which would be something nice for us to look at.

    Dusty, thank you. I wanted to make sure I had it all right. I’ve always been amazed that people think they can’t use a real place or person…

    Dana, I’m sorry I missed you!

    Toni, that’s the balance I have to cope with. I don’t want to freak people away from their favorite places by setting a murder there.

    Reply
  7. Louise Ure

    I only use fake places if I want a crime committed there, or if I wish a place like that existed. (Like the restaurant in Forcing Amaryllis that changed its menu every day based on a letter of the alphabet. “C” days were the best. Chicken, chocolate, and cheese.)

    Reply
  8. lucidkim

    I’ve really struggled with this! I decided to use a few real people (celebrities not currently famous, but still alive…) in my book – but it’s become a road block for me. I don’t want to work so hard on something that is non-publishable simply because I used real people in a fictional way (and none of it is negative at all).

    I found this http://en.wikipedia.org/wiki/Personality_rights – when I was researching my dilemma.

    Did you ask the reporter’s permission before you used her in your book?

    I’ve thought of starting over and leaving that out – but it’s the hook in the book. The other side of me wants to just proceed on and see what happens. 🙂

    kim

    Reply
  9. R.J. Mangahas

    Useful stuff JT, thanks. I’ll sometimes make up brand and company names or if I use real places or people, they are more incidental.

    Another book that uses real people and events is Dennis Lehane’s THE GIVEN DAY. Babe Ruth a character who is used as an interlude when the setting is changing. The Boston Police Strike of 1919 was certainly a real event.

    Reply
  10. JT Ellison

    Kim, from what I can tell, your example applies to using a celebrity or public figure’s likeness for commercial promotion or endorsement. I don’t think that applied to fiction unless you’re putting a picture of said person on the book. Dusty, am I right here??

    Louise, I want to try that restaurant. What a clever idea!

    RJ, another great example. It’s a lot easier to work with those who’ve passed and historical events, but it doesn’t preclude current stuff either!

    Reply
  11. Allison Brennan

    I do both. Real places and fake places. Like Louise, if there’s a crime committed it’s a fictional place. In PLAYING DEAD, I used a real restaurant (the FOX & GOOSE) in Sacramento where my hero and heroine meet up. It was one of my favorite places to have lunch when I worked at the Capitol. But the bar in Isleton, where several things happen including someone being poisoned, is completely fictional.

    My characters go to Starbucks a lot, but when Lucy was abducted, I had her abducted from the parking lot, not the actual facility. I like real places (Sacramento, San Diego, etc.) but in my supernatural thriller series, which started with my novella, I made up a town (Santa Louisa) and a California mission, which I dubbed the “lost” mission because it was so far off the mission trail. But I used the real Dos Los Padre National Forest for the location, so people who know the area would probably figure out Santa Louisa is my version of Santa Maria.

    Writing my last two books, and my upcoming two books, set in Sacramento and Northern California has been both challenging and freeing. I love writing about a place I know really well, but as I write I realize how much I don’t know about where I live!

    Reply
  12. Catherine

    Linking on a little to Zoë’s earlier post regarding online jurisdiction… I found an early case (2002) [in one my text books from last year], regarding online publications.

    An Australian man was able to bring a defamation action to his local State court, (Victoria) as this was where he was best known. This was even though the publication originated in the United States. So I figure Australia is also establishing a fairly fierce attitude towards defamation online.

    The text book by Mark Pearson, ‘The Journalist’s guide to Media Law: Dealing with Legal and Ethical Issues’ (2007) does caution against the use of international trademarks to the extent of not using Xerox as a substitute word for photocopying. Pearson refers to Columbia Journalism Review as a source of where advertisements are placed by major corporations, and the International Trademark Association to advising against this habit. It all seems fairly fine line stuff as the marketing of the brand name has been so successful that it becomes ‘the’ descriptor for a task.

    I guess one of the main protections for authors of fiction, is as JT stated as long as it’s not defaming a product (besmirching the product image) it’s ok.

    Although JT, I could quite easily buy into the idea of using caffeine deprivation as a way to induce madness. The Barista at my local café has a god complex. This seems all too plausible to me.

    Reply
  13. Fran

    I know that Donald Bain had Jessica Fletcher come into Seattle Mystery Bookshop and have a signing — and an altercation — there, and we were tickled.

    Michael Connelly used three of our folks’ names in “Blood Work”, and none of them knew it until they read the books. I understand beverages were snorted out noses.

    I know I enjoyed the fact that Caleb Carr used Teddy Roosevelt in “The Alienist”.

    It just seems like common sense to me: if you’re talking about a real person or place, don’t defame (unless you have their permission, preferably in writing). It gives a sense of place and personality to a book, I think.

    Reply
  14. Jake Nantz

    I’m really glad you brought this up, Ms. Ellison, because I’ve been putting fictional places in real locales here in the triangle. For example, I’ll use a real location, road names and all, but the hospital or neighborhood that I put there is entirely mine, just because I wasn’t sure what was legal and what wasn’t. All of my characters are fictional, and although some aspects of some characters may be based on real people, I’ve changed enough about the character to mask who the person is (I hope). This is mainly because I have no interest in pissing people off, I just want to entertain.

    Reply
  15. Jake Nantz

    By the way, I loved the cover I saw recently on this page for JUDAS KISS, and I think it’s pretty cool how Mira seems to be keeping a theme with your covers. Must be good for branding.

    Question: While I know it isn’t any legal issue because of the time differentials, your book bears the same title as one of Metallica’s new songs. Again, I know there’s no legal deal, but do you thing there will be any crossover at all from metalheads like me that see the title, recognize it vaguely from somewhere they can’t figure out, and pick it up? Am I being hopeful for you here, or is that a real (if minor) possibility?

    Also, I found your books recently, but not where I would have expected in B&N. Same goes for a couple of the ‘Rati. I blogged about it earlier today, and wondered your (plural, all the Murderati) thoughts.

    Reply
  16. j.t. ellison

    Jake, titles aren’t copyrighted. You can go through Amazon and find hundreds of books, movies and songs with the same title.

    That said, I thought JUDAS KISS was original when I came up with it as a title. Not to be picky, but the Metallica title is The Judas Kiss, and I’m sure there was a completely subconscious impetus there, seeing as I enjoy their music.

    Catherine, looks like the Aussies don’t play the slander game either. How refreshing! I wish we could be a stringent here.

    Fran, it’s the same as people bidding on name in novels – real people doing not so real things. Though I need to find a way to set a book in Seattle…

    Thanks, Tasha. Get off the computer, it’s fall break ; )

    Reply
  17. pari

    Great post, J.T.,Sorry to come to it so late. As you know I use real places in my NM series. I’ll also use some of them in a much more incidental way in the new series.

    This is a wonderful, informative and timely.

    Again, thank you.

    Reply
  18. Patrick Balester

    Thanks! I appreciate this post, because I did this in my first novel and it’s good to know I won’t be sued. (Well, I think I won’t…I said good things about the real places I wrote about, including some restaraunts whose food I love).

    Reply

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