Do authors need permission to mention other authors' creations in their books?

Cafe Society
1

post contains tiny spoiler for Stephen King’s Wolves of The Calla

I’m reading the last few books of The Dark Tower, and was surprised to see mention of an object being the Harry Potter model of something called a Sneech. Obviously Harry Potter is a character from the series of the same name, while Sneeches were Doctor Seus characters.

Legally speaking, is permission from the authors (or the author’s estate in Seus’ case) required, or is it okay to “borrow” the names without permission if used in a non-libellous way? AFAIK it’s okay to mention the other work as a book that the characters are familiar with, but this feels different since they’re not the normal representation the other authors established.

I’m sure King’s use is above board, I’m just curious as to how what he did works.

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Names can not be copyrighted, so using them is OK, unless it’s a trademark, in which case you might have to get permission.

As long as you’re reading King, find a chapter heading where he quotes some song lyrics, and check the copyright page for confirmation of permission.

3

Apart from any other consideration, it is legally impossible to libel a fictional character.

4

Probably not needed, though in some instances copyright infringement may be less tolerated than others, especially if the use is inconsistent with how that character/creative entity is normally portrayed. I see waaaaaaay too many contemporary references to fictional people, places, metafictional concepts and Wold Newton conceits for me to think that EVERY SINGLE TIME there’s been permission sought and granted.

I also think its within the traditions of the culture and mores of certain media and genre forms to allow more “playing” around with other author’s concepts and name-dropping when its not clearly satire. For instance, it seems to me printed media allows more freely a mentioning of a Coke can without censure than visually depicting a Coke can in visual media. Visual media MAY allow it if the name of the product/medium is partially obscured. So, say, Marvel comics can have Lois Lane Jimmy Olsen and Clark Kent show up with few to no named references to who the characters are or what newspaper they work for to cover a news event in the Marvel Universem and DC won’t won’t squawk. Superheroes can be seen on the covers of TIMELY, NEWSWEEKEND, US NATIONAL NEWS AND GLOBAL REPORT, be on NNN stock footage and Giggle search engines; but just as often I see the some take the creative step of using the analog media’s real names, and I suspect in those cases permission was sought. But this has more to do with humorless business entities protecting trademarks than fictional creations.

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I have written a few YA authors about brand names mentioned in their books, like Pop Tarts, etc. They say they did not even give it a thought, and they’ve never been challenged on it. I guess these companies see it as a free plug, unless you’re slammingh them. But, even then, I once asked the SD how “Super Size Me” got away with slamming the fast food industry (esp. McD’s) without being sued. Go figure. As long as you’re coffee’s not too hot, I guess you can get away with anything, right? :wink: …Just My $0.02+ tax, - Jinx

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I would say that had a lot to do with expediency on McDonald’s part. Just a few years earlier, they had finished fighting the longest legal battle in British history - the famous McLibel trial. They sued a number of activists individually in court for collectively creating and distributing a leaflet in 1986 called “What’s Wrong With McDonalds?”, listing pretty much everything you’d expect such a leaflet to list.

Most of the activists did what McDonalds expected, which was to issue a formal public apology for their actions, an allowed settlement under British law at the time. Two of the activists refused, and managed to scare up enough resources to defend themselves in court.

The case was ultimately a McDonalds victory, in that in 1997 the judge (it ended up not being a jury trial) decided the defendants had not provided sufficient evidence to back up their claims against McDonald’s regarding rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions.

However, the judge found that the activist HAD proven their case regarding the claims in the leaflet that McDonalds’ advertising exploits children and gives a false impression of their food as nutritious, that the company risks the health of its most regular, long-term customers, that they responsible for cruelty to animals, and that they are opposed to unions and pay their workers low wages. McD’s obviously spent a lot more than the 60,000 pounds awarded to them in fighting this battle only to be delivered such a Pyrrhic victory.

As if that weren’t enough, the defendants appealed, and in 1999 the appeals court overturned the lower court’s decisions in McDonalds’ favor regarding heart disease risk and poor working conditions, so Ronald was on the hook for those, as well.

So if you were McDonalds, having spent a small fortune for this result, and a filmmaker comes along and eats McDonalds all day everyday (which, let’s face it, is what McD’ s advertising pretty much suggests would be a fine idea) and has actual doctors declaring him to be monumentally unhealthy after a month of this, what would you do?

7

You can’t libel an industry, any more than you can libel a fictional character.

And the too hot coffee lawsuit bit is an UL that been exploded a million times. The lawsuit was completely legitimate and the injury severe.

The First Amendment comes into play on this as well. Of course you can use real life names and products in fiction - and news and documentaries and message board commentary. How can anybody possibly think otherwise?

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Depends on the industry. Oprah Winfrey and Howard Lyman were famously sued about 10 years ago for libel by Texas beef agribusinesses using newly established food libel laws passed in 13 states. Outside of food producers, though, I don’t know of any other lobbyist industries with the reach, influence, shared resources and clout to muster these kinds of laws that lower standards of ordinary libel suits. Pharmacuticals are too competitive and brand-name conscious, guns have too much opposition, the sex industry has too much illegality and sleaze.

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Also, while you can’t libel a fictional character, there is a little known phenomenon called libel-by-fiction, whereas a fictional character so resembles a living person that a reasonable assumption on behalf of someone experiencing the work is to assume it IS about that real-life person, and may invoke defamation of character and sue for damages. In a different era, with a sympathetic jury favoring an action by William Randolph Heart, Citizen Kane might have ended up destroying Orson Wells’ career.

10

And, of course, Oprah won the suit. The laws are there for no reason other than to discourage free speech, by making its defense costly. Has anybody ever lost a case in one of these food libel suits? Not to my knowledge. It could be that people have settled to avoid the cost of lawyers, which is the point of the laws, but I don’t know of any appeals court ruling that have justified them. These are like laws putting the Ten Commandments into the statutes. You can get just about any state legislature to pass one, but that doesn’t make it legal.

Same deal here. Again, I don’t know of any successful recent suit using this claim. There was one important case using this defense, and they lost:

http://www.cfac.org/Attachments/texas_satire.htm

Satire is protected by the First Amendment. So is criticism. Obviously, the Powers That Be have done everything they could at the local level to make contrary speech expensive. Legally, however, none of it holds up in higher courts.

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For example, Tarzan.

http://www.erblist.com/erbmania/trademark.html

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An author I know wrote a book called Praying for Sheetrock that won some awards and I believe was nominated for a Pulitzer (not sure of that). It’s a non-fiction work about a very corrupt coastal town in Georgia where a major source of revenue was the spillage from truck wrecks. One very old black lady interviewed said she’d been “praying for sheetrock” so she could fix up her shack and, sure enough, God caused a truck carrying sheetrock to wreck and she got her prayer answered.

So the book was published and put on the shelves and then got some attention and reviews. Neither the author nor her publisher realized that Sheetrock is a registered brand name (though if you go into most Lowe’s or HQs and ask for sheetrock they’ll take you to the drywall section and assist you as if you just asked for drywall). They received a cease and desist letter from the Gypsum Co. that owns the trademark until the lawyers had a chance to read the book, but with some phone calls it was cleared up (especially since not only does the book not malign Sheetrock® but it only mentions it in the title and that one quote), but the next printing had to have a “Sheetrock is a registered trademark of the Gypsum Company” disclaimer.

Alice Randall’s satire The Wind Done Gone never once mentions the names O’Hara or Scarlett or Rhett or Gerald- I think the only things specifically associated with GWTW it mentions are Tara and Mammy, both of which were in use centuries before Margaret Mitchell. She was sued, however, for copyright infringement (the phrase “unabated piracy” was used) by the Mitchell estate but it was thrown out as not violating fair use under parody.

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It’s legal if it’s passed by the legislature – but it doesn’t mean it’s federally constitutional. However I see your point. I’m don’t believe the Supreme Court has struck down or upheld libel-by-fiction nor food libel laws. None of the appeals seem to make it that far.

14

In today’s litigious society, it matters not what the laws are, but who’s more likely to sue.

For example, I’m working on a novel where the characters use “Playstation” as a code word for sex. While the draft isn’t ready to shop around yet, some people in the industry have already told me that, most likely, I’ll have to remove that reference…not because it’s a trademark, but because it’s a SONY trademark. And SONY is notorious for disrespecting “free use” laws.

On the other hand, the same people have told me that using “Nintendo” is more likely to pass muster…but that oral sex, dammit! :mad:

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Heck, KGS, SONY even went after a Baltimore *restaurant * owner named Sony Florendo back in the 80s for calling her place “Sony’s”.

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I want to try out that giggle search, sounds like a barrel of laughs!

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There’s a real-life adult search engine called Booble.com. You should get jiggy with that one!

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As long as you use the name correctly. If you say your character used a kleenex or scotch tape, you’ll get a letter from their lawyers (not much else – they’d be fools to take you to court on that*).

That’s a different issue: naming your business after a trademarked business. They’re going to fight that (though if the business is different in nature, you may have an out). Even if they lose, they’ve protected their trademark in their areas.

*What if they lost?