Thanks for the post, Winston! Also good to keep global audiences in mind. EU law is a bit more convoluted than the US and you can run afoul of copyright laws if you don't receive express permission to use logos or excerpts. I was warned by an editor that to use part of a TS Eliot poem in my book, I'd need to get permission from the estate!
As you say, it's about risk and the nature of the work you're producing.
Curious what other readers/writers think? Especially those from other regions of the world.
Great addition, Lloyd! I've heard several accounts like yours where the law was much different or even more strict depending on the location. Definitely prudent to research information pertaining to the individual project.
Thank you for pointing this out! I'm now super curious what the differences are.
I read Jennifer Government by Max Barry which is so full of brand names that get absolutely dragged through the mud. He included a disclaimer that his work was satire. But even so, a Nike rep being hired to shoot a kid in order to generate hype for a new line of shoes is a pretty jarring thing to read.
The book was amazing and an effective satire to boot. I havent worried about trademarks since that book since nothing I could possibly write would be as bad as that!
Hey Scoot, thanks for the comment. I hadn't heard of Jennifer Government, but I just looked it up and now I have to read it. Wow! That would have to be incredibly satirical. You've brought up an important case study in how far one can go to push the branding thing, and given me more to think about. I appreciate it!
Thanks for sharing this. I've barely given much thought to how you can use trademarked brands in writing; most of my past concerns have involved the mention of copyrighted work (like other fiction, songs, or movie/TV lines) in stories. That would probably be another good and useful topic to look into. Anyway, I'm glad that I now know when mentioning brands could become a problem, and I'll certainly keep in mind some of this information going forward.
I'm glad you've found this helpful. You bring up a great distinction with brands VS intellectual property. I'd be curious in learning about those differences as well. I do know that it's a lot harder for "ideas" to be copyrighted, such as zombies, vampires, etc. But I think you're talking about mentioning the names of fiction and songs, right? Good question. Here's a convenient list I found that might have the answer: http://oneauthortoanother.com/2018/10/14/what-you-can-and-cant-legally-use-in-your-fiction-book/
In that article, Samantha states, "These [names] are free to use, but, again, it’s recommended you don’t talk bad about them in any way, i.e., “It’s the worst song ever written.” (You can even use them for your own book titles as long as you’re not violating any registered trademarks.)"
This is all new to me as I generally stick to fantasy stories that don't run into this problem, but as soon as I started writing alt-history Earth stuff, I wanted to know! Thanks for the comment, T.V. Hernandez. :)
Very interesting ... I’ve set the novel I’m writing at Amazon (where I worked once briefly), though there is no judgment on the company itself as being either good or bad, though plenty of judgments about the people who work there. It’s a setting, really. But I’ve wondered if this could be problematic. You’ve given me food for thought, if not a resolution.
That sounds like an interesting story, Tom. I suppose it would depend on a lot of variables for it to be problematic. If it's central to understanding the story, then follow your instincts. Company names are free game, I believe, as long as you don't frame them negatively. Here's another resource where I found that info: http://oneauthortoanother.com/2018/10/14/what-you-can-and-cant-legally-use-in-your-fiction-book/
Hope that helps. I appreciate the comment and good luck on the novel!
Thanks for that link. I'm sticking with Amazon for now, but it's as easy as search and replace if I ever get to needing to change it. All I need is a name for a fictional massive company with interests in retail and cloud computing, a million-person workforce, and a voracious desire to monitor its people ...
Very interesting post Winston. A lot of us shy away from using brand names but I think the writing loses some authenticity when everything is generic. Eg: Jimmy picked up a burrito and a six-pack of Beer, vs. Jimmy picked up a burrito and a six-pack of Bud.
I totally agree, Jim! It makes the story feel so much more real when you can specifically describe what kind of chips someone is eating, or what type of drink they have. Thanks for pointing this out.
I'm so glad you found this article helpful, Claire. I knew if I was wondering about these things, then other writers must wonder them too! Thanks for reading. :)
This post is so timely. Yesterday, I described my MC in my latest novel as wearing Hunter rain boots and I was wondering if I should make up a brand. I usually make up names for companies because that's fun. I'll be sharing this post with my writing peep as well.
Glad it was helpful and timely, Sharon. It feels so impactful when you can just name the brand of boots because everyone who knows the brand instantly has the image of them in their mind, rather than needing to describe them to the reader. I tend to make up names, or omit them as of late, but have grown more comfortable dropping big names as long as it is positive or neutral. Thanks for reading and your comment, Sharon!
Helpful! Good info. Makes me think of trends in fiction versus writing more universally. I don’t think naming specific brands is necessary most of the time. It’ll be out of date a month or two later anyway. Better to focus less on brand names and more on deep fiction that touches something more profound inside readers. That’s my take.
Hey Michael, thanks for the insightful comment. I think you're onto something here. Unless it's central to the story, it probably doesn't need to be named because it could possibly distract the reader. It would definitely help in the scenario where you WANT to date the story, say it's a time period piece and you want to solidify that setting. But you're absolutely right in the sense that it could date your work, especially in science fiction where one might want the story to age well. Great take! Thank you for bringing this up.
I'm ashamed to say I haven't read American Psycho, but now I want to. I watched the movie a while back though.
This is a great example, Nathan. I glanced over the Wikipedia page to see if anything of this nature was listed. Unfortunately, the main controversy was with the serial killing aspect and I saw no mention of brands objecting to being included. U2/Bono was even featured in the movie! Maybe due to the positive framing of them?
I wonder if this is one of those scenarios where the Publisher was the one willing to take on that risk, rather than the author? It appears the book did have some trouble getting into print during those first few years. It's also one of the most banned books in the world. There are some very powerful cases out there of books that push the limits of trademark law. Gives me slightly more peace of mind with my own work.
Very interesting stuff. Thank you for mentioning this, Nathan.
It might be that it’s safe to do this with a publisher able to defend you; but without a legal war chest, it’s more dangerous? I know in video games, they heavily discourage you from having Easter eggs about anybody irl because of the fear of a lawsuit. Is that because it’s visual and not just text? Game makers are way more scared of lawsuits than book publishers I feel
You're probably right about the publisher thing. It could also many factors at play on the legal side of the house where publishing, as an industry, has more cases of precedence where people may be less likely to waste the resources in a court battle, as opposed to the relatively newer games industry? Another factor could be the intent of the writer, where the writer isn't saying those brands caused Bateman to be a serial killer, therefore the legal standing the company would have in court is floppy and difficult to prove?
This is definitely making me think, haha! I don't have the exact answer, but it is fun to speculate. Maybe the Easter Egg thing falls under a different law if the person doesn't want to be associated with that brand. Like libel or defamation?
Separately, I did find this article where Scarlett Johansson (partially) won a case against a French author because in his fiction novel he wrote that she (or a character based on her) had two affairs, although the result was that the publisher removed the four lines of text mentioning that: https://www.theguardian.com/film/2014/jul/04/scarlett-johansson-wins-french-defamation-case
Mar 31, 2023·edited Mar 31, 2023Liked by Winston Malone
I sincerely doubt that most uses of a brand name in a work of fiction would rise to the level of legal culpability. However, that of course would never stop a legal action from a deep pocketed company because it’s frequently more about bullying than the actual law and they know most people don’t have the resources to fight it. So good info to have here.
As for me, I rarely mention a brand because the brand doesn’t have anything to do with the story. A cigarette is a cigarette and if I use one in a story, I prefer to focus on the person lighting it up rather than the brand. Same with a car or shoes. People know what those things are, but not everybody can relate to a particular brand. I like to keep it more universal, as Michael mentioned in this thread.
Having said that, I did use the word Coke recently in a very general sense within a piece of dialog. If they yell at me, I suppose I can change it to Pepsi. :)
I agree with your sentiment, Victor, that most of them wouldn't be a blip on a corporation's radar. They have much better things to do, one would assume (except Disney).
I think you're taking the right approach by avoiding it altogether. It really depends on the point of the story and where you want to put the focus. If it's a critique on modern capitalism, then that makes sense. If it's a zombie romcom...maybe not? lol
I love that about changing it to Pepsi. I chuckled at that. I've saved that story in my inbox and will read. Thank you for sharing!
This had me wondering how often it is I include brands in my drafts...? Not much. But sometimes? I think? I feel like I use them sparingly.
But, I will say that sometimes there's a lot of power in the brands your character opts for, so this info is really useful. And reassuring. Thanks for sharing!
Sorry for the late response, Garrett. Something came up. I appreciate you taking the time to comment.
I think you're right! A character choosing a specific brand immediately shows the reader that the character has a lived experience, one that has informed them up to the moment of that choice, regardless of how trivial the choice may seem. The reader can then take that choice, whether consciously or subconsciously, and base an idea or opinion off of that. Just saying they picked up a beverage only allows the reader to say, "well, I suppose I get thirsty, too."
This is great info, Winston, thanks! I can't say I mention many brands in my historical writing, but I've always wondered what the protocol would be if I used one in a story. Good to know :-)
Wait, you don't have the Scythians drinking a nice, cold Coors Light? Lol In your opinion, what would they drink if they had to choose a modern brand of booze?
Haha! Ahhh, nothing tastes better after a long day of raiding than cracking open a nice frosty... I wonder how Coors would feel about Scythians drinking their beer from the skulls of enemies? Is that considered a positive or negative product placement? ;-)
As far as what they'd drink today, that's a good question! They were enthusiastic wine-drinkers (the Greeks usually diluted their wine with water, and referred to drinking it neat as "Scythian-style".) If they had access to any modern brand of booze, the obvious regional choice would be a vodka, but they feel more like whiskey drinkers to me--maybe bourbon? Open to suggestions!
And you can’t beat a good Irish whiskey 🥃 but I can totally see the vodka angle given the region. Hmm 🤔 things to think about for when you get that movie deal for your trilogy.
Good post! In my book I referenced a Kevin Smith movie, and even though I did not damage the movie, I still chose to change the name just to be safe. Plus, I feel like it added to the thought that the reader was in a different universe that was similar to ours.
I also did research on if I could add the lyrics to song in a story word for word which falls under copyright, and that is a whole other can of worms. Music companies can be ruthless!
Thanks, Victor! That sounds like a cool way to include a reference that is also safe. I don't think you would have been in the wrong to have openly referenced the movie though.
Lyrics on the other hand might be a different story. I don't want to even go near that! lol
Thanks for the post, Winston! Also good to keep global audiences in mind. EU law is a bit more convoluted than the US and you can run afoul of copyright laws if you don't receive express permission to use logos or excerpts. I was warned by an editor that to use part of a TS Eliot poem in my book, I'd need to get permission from the estate!
As you say, it's about risk and the nature of the work you're producing.
Curious what other readers/writers think? Especially those from other regions of the world.
Great addition, Lloyd! I've heard several accounts like yours where the law was much different or even more strict depending on the location. Definitely prudent to research information pertaining to the individual project.
Thank you for pointing this out! I'm now super curious what the differences are.
I read Jennifer Government by Max Barry which is so full of brand names that get absolutely dragged through the mud. He included a disclaimer that his work was satire. But even so, a Nike rep being hired to shoot a kid in order to generate hype for a new line of shoes is a pretty jarring thing to read.
The book was amazing and an effective satire to boot. I havent worried about trademarks since that book since nothing I could possibly write would be as bad as that!
Hey Scoot, thanks for the comment. I hadn't heard of Jennifer Government, but I just looked it up and now I have to read it. Wow! That would have to be incredibly satirical. You've brought up an important case study in how far one can go to push the branding thing, and given me more to think about. I appreciate it!
Thanks for sharing this. I've barely given much thought to how you can use trademarked brands in writing; most of my past concerns have involved the mention of copyrighted work (like other fiction, songs, or movie/TV lines) in stories. That would probably be another good and useful topic to look into. Anyway, I'm glad that I now know when mentioning brands could become a problem, and I'll certainly keep in mind some of this information going forward.
I'm glad you've found this helpful. You bring up a great distinction with brands VS intellectual property. I'd be curious in learning about those differences as well. I do know that it's a lot harder for "ideas" to be copyrighted, such as zombies, vampires, etc. But I think you're talking about mentioning the names of fiction and songs, right? Good question. Here's a convenient list I found that might have the answer: http://oneauthortoanother.com/2018/10/14/what-you-can-and-cant-legally-use-in-your-fiction-book/
In that article, Samantha states, "These [names] are free to use, but, again, it’s recommended you don’t talk bad about them in any way, i.e., “It’s the worst song ever written.” (You can even use them for your own book titles as long as you’re not violating any registered trademarks.)"
This is all new to me as I generally stick to fantasy stories that don't run into this problem, but as soon as I started writing alt-history Earth stuff, I wanted to know! Thanks for the comment, T.V. Hernandez. :)
Very interesting ... I’ve set the novel I’m writing at Amazon (where I worked once briefly), though there is no judgment on the company itself as being either good or bad, though plenty of judgments about the people who work there. It’s a setting, really. But I’ve wondered if this could be problematic. You’ve given me food for thought, if not a resolution.
That sounds like an interesting story, Tom. I suppose it would depend on a lot of variables for it to be problematic. If it's central to understanding the story, then follow your instincts. Company names are free game, I believe, as long as you don't frame them negatively. Here's another resource where I found that info: http://oneauthortoanother.com/2018/10/14/what-you-can-and-cant-legally-use-in-your-fiction-book/
Hope that helps. I appreciate the comment and good luck on the novel!
Thanks for that link. I'm sticking with Amazon for now, but it's as easy as search and replace if I ever get to needing to change it. All I need is a name for a fictional massive company with interests in retail and cloud computing, a million-person workforce, and a voracious desire to monitor its people ...
haha that's true. Readers would pick it up rather quickly under those distinguishing parameters.
Try Cyberia. It's both an allusion to a vast uninhabited geographical place on Earth and to digital surveillance.
Very interesting post Winston. A lot of us shy away from using brand names but I think the writing loses some authenticity when everything is generic. Eg: Jimmy picked up a burrito and a six-pack of Beer, vs. Jimmy picked up a burrito and a six-pack of Bud.
Thanks for the post.
I totally agree, Jim! It makes the story feel so much more real when you can specifically describe what kind of chips someone is eating, or what type of drink they have. Thanks for pointing this out.
I was worrying about this just the other day with a story I'm working on! This was helpful, thank you!
I'm so glad you found this article helpful, Claire. I knew if I was wondering about these things, then other writers must wonder them too! Thanks for reading. :)
This post is so timely. Yesterday, I described my MC in my latest novel as wearing Hunter rain boots and I was wondering if I should make up a brand. I usually make up names for companies because that's fun. I'll be sharing this post with my writing peep as well.
Glad it was helpful and timely, Sharon. It feels so impactful when you can just name the brand of boots because everyone who knows the brand instantly has the image of them in their mind, rather than needing to describe them to the reader. I tend to make up names, or omit them as of late, but have grown more comfortable dropping big names as long as it is positive or neutral. Thanks for reading and your comment, Sharon!
Helpful! Good info. Makes me think of trends in fiction versus writing more universally. I don’t think naming specific brands is necessary most of the time. It’ll be out of date a month or two later anyway. Better to focus less on brand names and more on deep fiction that touches something more profound inside readers. That’s my take.
Michael Mohr
‘Sincere American Writing’
https://michaelmohr.substack.com/
Hey Michael, thanks for the insightful comment. I think you're onto something here. Unless it's central to the story, it probably doesn't need to be named because it could possibly distract the reader. It would definitely help in the scenario where you WANT to date the story, say it's a time period piece and you want to solidify that setting. But you're absolutely right in the sense that it could date your work, especially in science fiction where one might want the story to age well. Great take! Thank you for bringing this up.
👍👍👌
How did American psycho get published at all with all the brand names in there, being associated with a serial killer?
I'm ashamed to say I haven't read American Psycho, but now I want to. I watched the movie a while back though.
This is a great example, Nathan. I glanced over the Wikipedia page to see if anything of this nature was listed. Unfortunately, the main controversy was with the serial killing aspect and I saw no mention of brands objecting to being included. U2/Bono was even featured in the movie! Maybe due to the positive framing of them?
I wonder if this is one of those scenarios where the Publisher was the one willing to take on that risk, rather than the author? It appears the book did have some trouble getting into print during those first few years. It's also one of the most banned books in the world. There are some very powerful cases out there of books that push the limits of trademark law. Gives me slightly more peace of mind with my own work.
Very interesting stuff. Thank you for mentioning this, Nathan.
It might be that it’s safe to do this with a publisher able to defend you; but without a legal war chest, it’s more dangerous? I know in video games, they heavily discourage you from having Easter eggs about anybody irl because of the fear of a lawsuit. Is that because it’s visual and not just text? Game makers are way more scared of lawsuits than book publishers I feel
You're probably right about the publisher thing. It could also many factors at play on the legal side of the house where publishing, as an industry, has more cases of precedence where people may be less likely to waste the resources in a court battle, as opposed to the relatively newer games industry? Another factor could be the intent of the writer, where the writer isn't saying those brands caused Bateman to be a serial killer, therefore the legal standing the company would have in court is floppy and difficult to prove?
This is definitely making me think, haha! I don't have the exact answer, but it is fun to speculate. Maybe the Easter Egg thing falls under a different law if the person doesn't want to be associated with that brand. Like libel or defamation?
Separately, I did find this article where Scarlett Johansson (partially) won a case against a French author because in his fiction novel he wrote that she (or a character based on her) had two affairs, although the result was that the publisher removed the four lines of text mentioning that: https://www.theguardian.com/film/2014/jul/04/scarlett-johansson-wins-french-defamation-case
I sincerely doubt that most uses of a brand name in a work of fiction would rise to the level of legal culpability. However, that of course would never stop a legal action from a deep pocketed company because it’s frequently more about bullying than the actual law and they know most people don’t have the resources to fight it. So good info to have here.
As for me, I rarely mention a brand because the brand doesn’t have anything to do with the story. A cigarette is a cigarette and if I use one in a story, I prefer to focus on the person lighting it up rather than the brand. Same with a car or shoes. People know what those things are, but not everybody can relate to a particular brand. I like to keep it more universal, as Michael mentioned in this thread.
Having said that, I did use the word Coke recently in a very general sense within a piece of dialog. If they yell at me, I suppose I can change it to Pepsi. :)
https://dcreed.substack.com/p/terminal-los-angeles
Thanks for the post Winston.
I agree with your sentiment, Victor, that most of them wouldn't be a blip on a corporation's radar. They have much better things to do, one would assume (except Disney).
I think you're taking the right approach by avoiding it altogether. It really depends on the point of the story and where you want to put the focus. If it's a critique on modern capitalism, then that makes sense. If it's a zombie romcom...maybe not? lol
I love that about changing it to Pepsi. I chuckled at that. I've saved that story in my inbox and will read. Thank you for sharing!
This had me wondering how often it is I include brands in my drafts...? Not much. But sometimes? I think? I feel like I use them sparingly.
But, I will say that sometimes there's a lot of power in the brands your character opts for, so this info is really useful. And reassuring. Thanks for sharing!
Sorry for the late response, Garrett. Something came up. I appreciate you taking the time to comment.
I think you're right! A character choosing a specific brand immediately shows the reader that the character has a lived experience, one that has informed them up to the moment of that choice, regardless of how trivial the choice may seem. The reader can then take that choice, whether consciously or subconsciously, and base an idea or opinion off of that. Just saying they picked up a beverage only allows the reader to say, "well, I suppose I get thirsty, too."
Great point! I hadn't considered this.
No apology necessary, Winston! Appreciate your reply :)
This is great info, Winston, thanks! I can't say I mention many brands in my historical writing, but I've always wondered what the protocol would be if I used one in a story. Good to know :-)
Wait, you don't have the Scythians drinking a nice, cold Coors Light? Lol In your opinion, what would they drink if they had to choose a modern brand of booze?
Haha! Ahhh, nothing tastes better after a long day of raiding than cracking open a nice frosty... I wonder how Coors would feel about Scythians drinking their beer from the skulls of enemies? Is that considered a positive or negative product placement? ;-)
As far as what they'd drink today, that's a good question! They were enthusiastic wine-drinkers (the Greeks usually diluted their wine with water, and referred to drinking it neat as "Scythian-style".) If they had access to any modern brand of booze, the obvious regional choice would be a vodka, but they feel more like whiskey drinkers to me--maybe bourbon? Open to suggestions!
I say positive. Who doesn’t like a winner? Lol 😆
And you can’t beat a good Irish whiskey 🥃 but I can totally see the vodka angle given the region. Hmm 🤔 things to think about for when you get that movie deal for your trilogy.
Good post! In my book I referenced a Kevin Smith movie, and even though I did not damage the movie, I still chose to change the name just to be safe. Plus, I feel like it added to the thought that the reader was in a different universe that was similar to ours.
I also did research on if I could add the lyrics to song in a story word for word which falls under copyright, and that is a whole other can of worms. Music companies can be ruthless!
Thanks, Victor! That sounds like a cool way to include a reference that is also safe. I don't think you would have been in the wrong to have openly referenced the movie though.
Lyrics on the other hand might be a different story. I don't want to even go near that! lol