Writing Forums

Writing Forums is a privately-owned, community managed writing environment. We provide an unlimited opportunity for writers and poets of all abilities, to share their work and communicate with other writers and creative artists. We offer an experience that is safe, welcoming and friendly, regardless of your level of participation, knowledge or skill. There are several opportunities for writers to exchange tips, engage in discussions about techniques, and grow in your craft. You can also participate in forum competitions that are exciting and helpful in building your skill level. There's so much more for you to explore!

Legal issues surrounding use of cultural references in a novel? (1 Viewer)

Private Universe

Senior Member
I remember reading that Twilight author Stephenie Meyer is a huge fan of the band Linkin Park and wanted to put it in her book as the music Bella Swan was listening to, but at the behest of her publishers she had to take it out/ neutralise/ non-specify. This is the conundrum I'm dealing with.

My issue is using real people's and real institution's names as interacted with by fictional characters. This feels absolutely essential to me for the authenticity and cultural realism of the fiction story (e.g., the sorts of conversations the characters would have with each other; the sorts of people they would rub shoulders with), but is this legal? Or does it put you in legally questionable territory?

I'm aware of Scarlett Johansson in 2014 suing a French novelist for creating a character who was explicitly likened to her, with her name given and all, and therefore she could sue him for 'making fraudulent claims about her personal life', with the novel deemed to constitute a "violation and fraudulent and illegal exploitation of her name, her reputation and her image" and to contain "defamatory claims about her private life".
https://www.theguardian.com/film/2014/may/14/scarlett-johansson-sues-french-author

Here are examples of brand names, as well as real life people and institutions who are mentioned by or interacted with by my fictional characters :

SHOPS: The town of X was 2 miles away, with a Marks & Spencer's and a train station....

CARS: "She reversed her Ferrari..."

BANDS: "X and I had a common passion for Westlife"; "I was listening to Oasis on my iPod"

SINGERS: "He told me that John Lennon was his godfather – it was ages before I found out he was just messing with me."

CELEBRITIES: "Cliff Richard and Tom Jones had been guests at their wedding"; “Are you still going to do your Michael Bolton routine?"

I fear that even invoking a real person's name like Angelina Jolie or Brad Pitt in their conversations and reveries e.g., in a comparison, would be legal thin-ice or legal hot-water.

MAGAZINE: "she was regularly featured in of Harper’s Bazaar, wearing..."

FILMS: "she got out a videotape of 'Ghostbusters' so many times..."

TOILETRIES: "she smelt of Pears soap."

CLOTHES: "he removed his Doc-Martened feet..."

SCHOOLS/ COLLEGES: "They met at Christ Church"; "he got into Oxford", "my Harrovian boyfriend "

CHARACTERS IN BOOKS AND FILMS: "she screamed as if Freddy Krueger were descending on her”

TV PROGRAMMES: "We were watching watched The O.C...."

FILMS: "The movie 'Steele Magnolias', did any of you ever see that?”

LINES FROM SONGS: I understand you don't put song lyric or published poems in your book unless you're a millionaire to pay the copyright, in all the different areas of the globe, to cover all their different regulations, but what about just 2 rhyming words from a well-known song?

Please note:

1. In all these instances, it's the character saying it, not the author.

2. In all of these instances, the status symbol or cultural cachet of the brand name or institution means something, it is far from random/ interchangeable, or it is meaningful for the subsequent or preceding conversation the characters or having or the anecdote they are telling.

3. Also, making up a random name for a Beatle, fashion designer, or a film-score composer would not do - it would not 'read' with the reader. It would detract from the realism of the characters and the story.

I've tried to do some research on this issue, and what I've gleaned so far is: (1) it's OK as long as you're not saying anything derogatory about the real person or the real institution - but even if you're heaping praise and compliments on them, they could still object to their name being used; (2) best pay a lawyer to read through your MS. (But wouldn't a publisher do this or have this level of legal know-how?); (3) Better be safe than sorry and go the generic route, draining your book of any cultural references --- but to me this could seriously impair the liveliness or cultural relevance of the characters and the story; (4) it's a grey area - sometimes you can do this, if it's clearly benign - "just in passing", but if it's the slightest bit contentious, leave it out (and your story will just have to have less immediacy or with less witty characters in it).

I even thought to put in the following disclaimer:

"This novel is entirely a work of fiction. The names, characters, organisations and incidents portrayed in it are the work of the author’s imagination. Any resemblance to actual persons, living or dead, events, organisations or localities is entirely coincidental.

"Any references to historical events, real people, or real locales are used fictitiously. This fictional story includes real people and organisations doing things they did not necessarily do in real life, namely, interacting with fictional characters.

"The views and opinions expressed in this fictional story are those of the fictional characters and do not necessarily reflect the views, opinions or positions of the author."


But I've never seen this done before.

I even thought to leave famous names dashed out (censored) because many will be able to guess who it's referring to (or insert their own celebrity), but I've never seen this done before so that may be a bit unorthodox.

I also thought: maybe you need to write to the person or name you're using for permission. But that also seems extraordinary or unorthodox and could conceivably take 40 years.

I'm amazed at how the 2010 film 'The Social Network' was able to get away with using their own interpretations and invented speeches and scenes of real, living people, using their actual names. Clearly much, if not everything, would have been lost had they diluted it with substitutes. But were they only able to do this because of 'big Hollywood money'?

How does Sian Lloyd get to write and publish 'A Funny Kind of Love: My Story' about her relationship with UK politician Lemit Opik, without him suing the pants off her - or her publishers being worried that he would?
https://www.amazon.co.uk/dp/1844545318/

How does Liz Jones from the Daily Mail write a published 'diary' in the Sunday supplement about her boorish, insensitive, philandering husband, who is also named? Are you allowed to do these things if you're famous? Or do you have to submit to being written about if you're 'a public figure'?

Has anyone else encountered this dilemma? Can anyone advise?
 

Bloggsworth

WF Veterans
It's probably only a legal problem if you defame or claim a false beneficial association - Most producers of product/retail should be happy for the free advertising/product placement. Litening to the Beatles could hardly be regarded as illegal as it is a product sold for the purposes of listening, ditto Linkin Park...
 

Taylor

Staff member
Global Moderator
I have been struggling with the same issue. My characters live in a world where status symbols play a big role, like a Rolex watch or Hermes bag. I haven't published yet and have been swaying back and forth about this. My understanding is, as Bloggsworth's advice, as long as you are complimentary, they will allow it. But this world has become so litigious. I'm going to get a copyright lawyer to read it over to make sure that no negative connotation could even be implied.

To be safe, I have thought about using a similar name such as the Rolly Swiss watch or Fermon Italian Bag. I think the reader would get the gist of it. I have also been thinking of using the name Ralph Klein for a famous designer, as they couldn't prove which one you were referring to. They could still sue, but their case would be weaker.

And then, I also wonder about certain places that are private enterprises and also landmarks, such the The Plaza Hotel or Caesar's Palace.
 

Private Universe

Senior Member
I have been struggling with the same issue. My characters live in a world where status symbols play a big role, like a Rolex watch or Hermes bag. I haven't published yet and have been swaying back and forth about this. My understanding is, as Bloggsworth's advice, as long as you are complimentary, they will allow it. But this world has become so litigious. I'm going to get a copyright lawyer to read it over to make sure that no negative connotation could even be implied.

To be safe, I have thought about using a similar name such as the Rolly Swiss watch or Fermon Italian Bag. I think the reader would get the gist of it. I have also been thinking of using the name Ralph Klein for a famous designer, as they couldn't prove which one you were referring to. They could still sue, but their case would be weaker.

And then, I also wonder about certain places that are private enterprises and also landmarks, such the The Plaza Hotel or Caesar's Palace.

Hey, I think our characters might know each other --- they might even be related! Undoubtedly, they move in the same social echelons (but possibly on different continents).

Using 'eggcorn' names could be one solution - trusting the reader is au fait enough with cultural references to decode the actual name and social status implications. And you've reminded me I have the famous institutions and hot-spots dilemma as well - hotels, restaurants etc. :concern:

I've read that even if you're complimentary, they may object on the basis that they haven't given permission for their identity to be used. They might even revel in the free advertising as Bloggsworth points out (Oscar Wilde: "There is only one thing in life worse than being talked about, and that is not being talked about"), yet they or their lawyers might scent a financial opportunity or business prospect and nevertheless go after you - driven by greed and malevolence. Most will be nice but there might be that 1% who are litigious for a living.

Great idea to get a copyright lawyer to read over it. Could you advise how one could go about finding one? Do you think a professional editor would be able to advise?

I'd still love to know how the 2010 film 'The Social Network' got past the personal injury lawyers....
 

Taylor

Staff member
Global Moderator
Hey, I think our characters might know each other --- they might even be related! Undoubtedly, they move in the same social echelons (but possibly on different continents).

Oh perfect! What genre are you writing?

Using 'eggcorn' names could be one solution - trusting the reader is au fait enough with cultural references to decode the actual name and social status implications. And you've reminded me I have the famous institutions and hot-spots dilemma as well - hotels, restaurants etc. :concern:

I have been reading other authors to see how they deal with it. Kevin Kwan, drops brand and hotel names all the time. , i.e. Macy's, Este' Lauder and the L'Hermine-Pierres' Hotel.

Candace Bushnell does it as well, i.e. "she took a Xanax after buying another pair of Manolo Blahniks." I really don't know how you could disguise that and get the same effect.

And then there is even the issue of educational institutions like Harvard and Stanford. Just mentioning those credentials says something very specific about your character. Would it still work to say they went to Hendale, the most reputable business school in the world? I guess you could, and hope your reader makes the connection.

I've read that even if you're complimentary, they may object on the basis that they haven't given permission for their identity to be used. They might even revel in the free advertising as Bloggsworth points out (Oscar Wilde: "There is only one thing in life worse than being talked about, and that is not being talked about"), yet they or their lawyers might scent a financial opportunity or business prospect and nevertheless go after you - driven by greed and malevolence. Most will be nice but there might be that 1% who are litigious for a living.

Yeah, see that is just the problem. They are perfectly in their legal rights to sue for damages or percentage of the proceeds. Typically they will send a cease and desist first, but I don't see how that would help after the book has been printed and sold. Can you imagine if J.K. Rowling had a copyright issue? And hey -- we have to dream big right? :)

Great idea to get a copyright lawyer to read over it. Could you advise how one could go about finding one? Do you think a professional editor would be able to advise?

You can get a referral from the Law Society, but that will be lawyers looking for work. If you want to get the best, I would google your area and then check their reviews online. Lawyers can't hold out to practice a specialty if they don’t hold the expertise.

I'm not sure of the liability an editor would absorb. But they might avoid your MS just because of it.


I'd still love to know how the 2010 film 'The Social Network' got past the personal injury lawyers....

I haven't seen that one, but I'll check it out!
 

Private Universe

Senior Member
Very reassuring to know of other authors doing it - thanks. Here's another one: "He reminded me of Clint Eastwood after he gunned someone down. I broke out in laughter" - 'From the Ashes' by Jesse Thistle (2019) p. 127.

"they went to Hendale, the most reputable business school in the world?" Exactly. Ditto for Oxbridge. For Eton you could you say "The School That Runs Britain" but would someone reading that book in another country or culture necessarily know the cultural reference?

Good point about an editor - and even publishers - avoiding your MS for that reason ('rather safe than sorry'). That might leave you (one) with self-publishing - but even then that would leave you to that 1% malevolent litigious who might see an opportunity.

'The Social Network' is about Facebook and Mark Zuckerberg and his friend Eduardo Saverin who I understand signed a confidentiality agreement when Facebook paid him off. I wonder if they were approached for permission to make a film about their lives and the questionable things they did as students?

'The Devil Wears Prada' - both the book and the film - used Runway instead of Vogue and Miranda Priestly instead of Anna Wintour. Everyone seemed to collude in knowing it was about Vogue and Wintour but saying 'it's fiction' - the way we talk about Father Christmas while knowing he isn't real, or the opposite: like someone with schizophrenic psychosis telling the psychiatrist 'I know the voices I'm hearing aren't real' while privately believing they are real, but knowing they'll be rebuked if they say they are. We all know the correct line to conform to publicly, while knowing what's actually going on in reality.

https://www.publishersweekly.com/978-0-385-50926-8
"Life is pretty grim for Andy, but Weisberger, whose stint as Anna Wintour's assistant at Vogue couldn't possibly have anything to do with the novel's inspiration, infuses the narrative with plenty of dead-on assessments of fashion's frivolity and realistic, funny portrayals of life as a peon."


My genre is family saga, I think. I think I read somewhere on here that yours is corporate crime - is that right?
 

Olly Buckle

Mentor
Patron
I would take Sam's word (Post 5) he is pretty reliable, but you might be missing a trick. I seem to remember that Ian Fleming made a fair bit of extra cash from the Bond books with 'Product placement' as a form of advertising.
 

Private Universe

Senior Member
I would take Sam's word (Post 5) he is pretty reliable, but you might be missing a trick. I seem to remember that Ian Fleming made a fair bit of extra cash from the Bond
books with 'Product placement' as a form of advertising.
OK thanks. That gives me the confidence to (warily) continue. I do worry that my story would be drained of all verve if all that stuff had to go - like an idea once it's been passed through a committee: it is left lifeless.

Assuming one isn't going to defame, slander or accuse, it seems there are 3 separate areas - maybe 4:

(1) brand names (which seem to be reasonably safe - the least detonatable landmines).
(2) real people - celebrities - TV personalities, actors, fashion designers, rock stars, authors. (most detonatable landmines)
(3) dead people - marginally safer but obviously still no <defame, slander, or accuse> (moderately detonatable)
(4) private enterprises, landmarks, hotspots e.g., companies, magazines, newspapers, restaurants, hotels. (moderately detonatable).

I seem to remember that Ian Fleming made a fair bit of extra cash from the Bond books with 'Product placement' as a form of advertising.
That is fascinating to know! I guess the safest would be to do what JK Rowling did and pick a fanciful subject matter like witches and wizards, then it's easier to have your characters interacting with generic structures and make-believe people rather than real ones; but if you're writing autobiographical, contemporary (or era-specific) accounts by various (made-up) characters, that becomes harder. What if one of those characters was morally reprehensible and a real-life institution had dealings with them - would that be a case of <defame, slander or accuse> by association?

Another question-mark case: how did Sufjan Stevens write a song about defamed ice-skater Tonya Harding, appropriating her life and her story? Apparently Tonya thinks it's a cheek and doesn't like it. I think the song is a magnificent piece of art and would be glad if some artist saw fit to romanticise my life through a song - albeit romanticising includes the ugly shadows (it would be sickly, saccharine, empty sweetness to omit the shadow). The song to me is beautiful fragment of Truth. Was this because her life was for a period 'in the public arena'?

Ditto Sylvia Plath's daughter Frieda: railed and disapproved about a film being made about her parents. But they juggernauted ahead and made it anyway, even making up lines of her poetry because Frieda or the publishers or copyright-holders did not give permission for her actual poems to be used in the film. I feel the directors sought to present all sides of the story, with God's impartial view, and again it's a beautiful fragment of Truth.
 

ideasmith

Senior Member
is it possible or likely that the mentioned film star or band could take action for your using the value of their name in your book in hopes of selling more books by dropping names to give the book more cred?
 

vranger

Staff member
Supervisor
Everyone in the thread with this question, search for and read about "Fair Use' until you understand it.

It's the important concept which will resolve your questions. Just like Copyright law, it's a subject every author should know all about, but it seems like few do. Defamation law can enter the arena, too. In a few circumstances, knowing about Trademark is also valuable.
 

Private Universe

Senior Member
is it possible or likely that the mentioned film star or band could take action for your using the value of their name in your book in hopes of selling more books by dropping names to give the book more cred?
Could it be that one's motive for mentioning celebrities and bands in a novel is to show the cultural milieu of the characters? To add realism to the story? Give the characters and settings more credibility and legitimacy? If one's fictitious characters are to be real, it would surely strike an odd note to read their conversations and picture their actions and environments in a vacuum, devoid of any cultural references.

Some examples from Jackie Collins's novel 'Hollywood Kids' (1994, 2001), of when she interweaves her fictitious characters with real-life mentions (celebrities, brand names etc). to add realism:

p. 3 Soon he would be sixty-two – like Clint Eastwood, age suited him.

p. 5 As their car left the Levitts’ driveway she snuggled closer to her husband, taking his hand and moving it under her expensive Valentino skirt.

p. 11 A half-naked movie star and a world-renowned director. What The Enquirer wouldn’t give for this picture!

p. 19’You got non-alcoholic/.’ He asked, wishing he could grab a can of ice-cold Miller’s and demolish it in tree great gulps.

p. 23 Decision made. No going back now, she was working for Style Wars – the thinking Hollywood executive’s guide to the real world, or what they imagined was the real world.

--- I think maybe this publication is fictitious? I’ve not been able to find it online.

p. 24 Investigative reporting was for force – she’d covered everything from the Anita Hill Washington debacle to political screw ups, the war in Iran, and several juicy Wall Street shenanigans

p. 26 Since Phil’s death she’d had one semi-serious relationship. Somehow – against her better judgement – she’d gotten involved with one of Rosa’s colleagues, a Kevin Costner-lookalike weatherman, who was two years younger than her and not the fastest brain in the West.
 
Last edited:

Ralph Rotten

Staff member
Mentor
I remember reading that Twilight author Stephenie Meyer is a huge fan of the band Linkin Park and wanted to put it in her book as the music Bella Swan was listening to, but at the behest of her publishers she had to take it out/ neutralise/ non-specify. This is the conundrum I'm dealing with.

My issue is using real people's and real institution's names as interacted with by fictional characters. This feels absolutely essential to me for the authenticity and cultural realism of the fiction story (e.g., the sorts of conversations the characters would have with each other; the sorts of people they would rub shoulders with), but is this legal? Or does it put you in legally questionable territory?

I'm aware of Scarlett Johansson in 2014 suing a French novelist for creating a character who was explicitly likened to her, with her name given and all, and therefore she could sue him for 'making fraudulent claims about her personal life', with the novel deemed to constitute a "violation and fraudulent and illegal exploitation of her name, her reputation and her image" and to contain "defamatory claims about her private life".
https://www.theguardian.com/film/2014/may/14/scarlett-johansson-sues-french-author

Here are examples of brand names, as well as real life people and institutions who are mentioned by or interacted with by my fictional characters :

SHOPS: The town of X was 2 miles away, with a Marks & Spencer's and a train station....

CARS: "She reversed her Ferrari..."

BANDS: "X and I had a common passion for Westlife"; "I was listening to Oasis on my iPod"

SINGERS: "He told me that John Lennon was his godfather – it was ages before I found out he was just messing with me."

CELEBRITIES: "Cliff Richard and Tom Jones had been guests at their wedding"; “Are you still going to do your Michael Bolton routine?"


I fear that even invoking a real person's name like Angelina Jolie or Brad Pitt in their conversations and reveries e.g., in a comparison, would be legal thin-ice or legal hot-water.

MAGAZINE: "she was regularly featured in of Harper’s Bazaar, wearing..."

FILMS: "she got out a videotape of 'Ghostbusters' so many times..."

TOILETRIES: "she smelt of Pears soap."

CLOTHES: "he removed his Doc-Martened feet..."

SCHOOLS/ COLLEGES: "They met at Christ Church"; "he got into Oxford", "my Harrovian boyfriend "

CHARACTERS IN BOOKS AND FILMS: "she screamed as if Freddy Krueger were descending on her”

TV PROGRAMMES: "We were watching watched The O.C...."

FILMS: "The movie 'Steele Magnolias', did any of you ever see that?”

LINES FROM SONGS: I understand you don't put song lyric or published poems in your book unless you're a millionaire to pay the copyright, in all the different areas of the globe, to cover all their different regulations, but what about just 2 rhyming words from a well-known song?


Please note:

1. In all these instances, it's the character saying it, not the author.

2. In all of these instances, the status symbol or cultural cachet of the brand name or institution means something, it is far from random/ interchangeable, or it is meaningful for the subsequent or preceding conversation the characters or having or the anecdote they are telling.

3. Also, making up a random name for a Beatle, fashion designer, or a film-score composer would not do - it would not 'read' with the reader. It would detract from the realism of the characters and the story.

I've tried to do some research on this issue, and what I've gleaned so far is: (1) it's OK as long as you're not saying anything derogatory about the real person or the real institution - but even if you're heaping praise and compliments on them, they could still object to their name being used; (2) best pay a lawyer to read through your MS. (But wouldn't a publisher do this or have this level of legal know-how?); (3) Better be safe than sorry and go the generic route, draining your book of any cultural references --- but to me this could seriously impair the liveliness or cultural relevance of the characters and the story; (4) it's a grey area - sometimes you can do this, if it's clearly benign - "just in passing", but if it's the slightest bit contentious, leave it out (and your story will just have to have less immediacy or with less witty characters in it).

I even thought to put in the following disclaimer:

"This novel is entirely a work of fiction. The names, characters, organisations and incidents portrayed in it are the work of the author’s imagination. Any resemblance to actual persons, living or dead, events, organisations or localities is entirely coincidental.

"Any references to historical events, real people, or real locales are used fictitiously. This fictional story includes real people and organisations doing things they did not necessarily do in real life, namely, interacting with fictional characters.

"The views and opinions expressed in this fictional story are those of the fictional characters and do not necessarily reflect the views, opinions or positions of the author."


But I've never seen this done before.

I even thought to leave famous names dashed out (censored) because many will be able to guess who it's referring to (or insert their own celebrity), but I've never seen this done before so that may be a bit unorthodox.

I also thought: maybe you need to write to the person or name you're using for permission. But that also seems extraordinary or unorthodox and could conceivably take 40 years.

I'm amazed at how the 2010 film 'The Social Network' was able to get away with using their own interpretations and invented speeches and scenes of real, living people, using their actual names. Clearly much, if not everything, would have been lost had they diluted it with substitutes. But were they only able to do this because of 'big Hollywood money'?

How does Sian Lloyd get to write and publish 'A Funny Kind of Love: My Story' about her relationship with UK politician Lemit Opik, without him suing the pants off her - or her publishers being worried that he would?
https://www.amazon.co.uk/dp/1844545318/

How does Liz Jones from the Daily Mail write a published 'diary' in the Sunday supplement about her boorish, insensitive, philandering husband, who is also named? Are you allowed to do these things if you're famous? Or do you have to submit to being written about if you're 'a public figure'?

Has anyone else encountered this dilemma? Can anyone advise?

The twilight author wanted to use actual lyrics, and those are copyrighted.
But you can refer to all the cultural referances you want.
And to the naysayers who say that cultural referances do not age well; your book will bottom out on sales long before the cultural referance is moot. Trust me.
 

Non Serviam

WF Veterans
Intellectual property 101 for the aspiring author

In countries that are signatories to the Berne Convention (which means almost everywhere), there are three kinds of intellectual property.

A trademark is about passing off counterfeit products. So I could develop my own car, but I could not market it as a Mercedes-Benz (or anything very similar). However, in my book, I could make reference to someone driving a Mercedes-Benz without restriction ---- because there's no possibility of passing off.

A patent is about protecting a new invention, which could be a physical object or a process. A fiction author need not worry about patents. Non-fiction authors may do so if they write in certain fields.

A copyright is the only thing that restricts what you can write in a novel. Copyright protects someone's creative work, which means their characters and their distinctive likenesses, any fictional elements they create and their distinctive likenesses, and large chunks of text.

So for example, I could write about some kids going to wizard school without violating anyone's copyright. If, however, it's about Larry Frotter going to Pigwarts, then I couldn't use it without relying on an exemption. The exemptions that matter to an author are that non-fiction authors can use material for the purposes of critique, analysis, study or research, and fiction authors can use humorous material in satire. Which is how come there can be a book called Bored of the Rings involving a hobbit called Dildo Bugger.

Properly-attributed quotations may usually be used in moderation. Quoting someone without attribution, though, is not okay, unless copyright has expired.

For people who live in the USA, there is an excellent summary of how to tell when copyright has expired from Cornell University here.

Please respect copyright. This is really important stuff, folks. We're writers, and copyright is what stops people from stealing from us, so it's vital ---- crucial ---- that we don't undermine it.
 
Top