"Unauthorized" Writings

Find out if you can use trademarks in your story, and discover the difference between copyright infringement and parody.
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I'm working on an instructional math book that includes a lot of parodies, e.g., a mock Emily Latella/Jane Curtin dialogue, an algebraic variation of Abbott and Costello's Who's on First?, and mentions of Wile E. Coyote. To what extent do I have the freedom to do this?

--David Lipton

From your description, it doesn't sound like your use of copyrighted characters and dialogue would be a permissible "parody" under the law. Parody is using some elements from a prior author's composition to create a new one that, at least in part, comments on that author's work. In a true parody, the copyrighted work is the object of the parody, not merely a vehicle with which to comment on a different target.

For instance, even though The Wind Done Gone author Alice Randall took characters, plot and setting from Gone With the Wind, the court found that it was fair use as a parody because she was commenting on and criticizing the romantic, idealistic portrayal of the South before and during the Civil War.

Your use of protected material seems more like the case in which a pair of writers used the copyrighted and trademarked Dr. Seuss classic The Cat in the Hat character for their book, The Cat NOT in the Hat, which told the story of the O.J. Simpson murder trial. The court there found that the borrowed Dr. Seuss rhyming style and characters had no critical bearing on the style or substance of The Cat in the Hat and that the authors had used them possibly "to get attention" or "to avoid the drudgery of working up something fresh."

If your work is not a parody, can it still be permissible as fair use? Courts look at several factors to assess fair use, and the following may weigh in your favor: 1. if your book is for a nonprofit educational use; 2. if you use only a small portion of the copyrighted work; and 3. if your use would most likely not affect the market value for the original and derivative works. Rather than finding out whether a court agrees with me that your uses might be fair, why not find out whether the works you want to borrow are still covered by copyright, and if so, get permission?

I'm writing a novel and want to know if I can use trademarks such as Pepsi or Coca-Cola? How about sports team names like the Detroit Red Wings or Los Angeles Kings?

--Greg Shipman

Writers want to inject as much realism into their novels as possible. Using particular brands also helps define your characters. Some authors believe having your character glance at her Rolex and take a swig of Perrier says a lot more about her than the alternative. But "Pepsi," "Rolex" and sports team names are brands owned by large (and possibly litigious) corporations who have invested loads of money developing positive name recognition.

Corporations are worried about two things: that their products are not disparaged and that their trademarks do not become generic. Avoid using a brand-name beverage if the beverage poisons people in your novel. Likewise, don't use a real sports team name if in your story the owners are corrupt.

As for properly using a trademark so as not to become generic, corporate lawyers will jump with joy if your character asks for a "Pepsi-brand soft drink." But that wording is awkward. A compromise is to capitalize brand names, and do not use them as verbs (corporations hate that, too). For instance, say in-line skating, not "Rollerblading," or photocopying, not "Xeroxing."

This article appeared in the February issue of Writer's Digest.

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