Questions – Use of Copyrighted and/or Trademarked Products in Your Works

We all know that copyright and/or trademark infringement is a big no-no.  If you take a copy of The Hunger Games, rip off the cover, replace with a new cover with your name on it, and print a bunch of copies and sell them, Suzanne Collins will own you.  But we’re not talking about the obvious here.

We’re talking about the fact that, outside of sci-fi or fantasy worlds, your characters will most likely live on Planet Earth.  As such, they’re humans just like the rest of us, and they will encounter all sorts of copyrighted and trademarked materials throughout the course of their travels.  I have questions about this.  I can’t say I have any specific answers.  I hope that one of you will, or at the very least, this will generate a fun discussion.

So, I’ve whipped up a little murder mystery to illustrate my questions.  Behold – The Case of the Bay Area Strangler

QUESTION 1 – Can you use a movie quote?

Ann was the toughest detective in the precinct.  She’d seen it all and had developed deep underlying psychological problems because of it.  But soon she could put that behind her.  To her great surprise, she bought a winning lottery ticket the day before and now had ten million dollars coming her way.  Because, you know, something like that could totally happen.  Shut up.

She was rich and she no longer had to put up with this crap.  She walked into the precinct and began cleaning out her desk.

“Ann,”  the Captain said, dropping a folder full of photos of a recently strangled victim.  “The Bay Area Strangler is back at it!  You and John are on this one!”

Ann opened up the file and screamed, “OH MY GOD!  THAT’S MY SISTER!”

“Oh yeah,” the Captain said.  “I forgot to tell you.  Your sister was strangled.  I probably should have told you that before I just handed you a folder full of photos of her horribly strangled corpse.  My bad.”

Ann’s mind was racing.  “Should I just tell the Captain I won the lottery and I’m quitting?  Or should I stay on to avenge my sister and capture her murderer?”  She felt like the Godfather.  “Just when I thought I was out, they pull me back in,” she said.

NOTES:  So, is that cool?  I made an attribution.  I didn’t pass the line off as my own.  If anything, it is free advertising for The Godfather, not that it needs any, but still.  

QUESTION 2 – Can you mention and/or discuss trademarked products?

The Captain assigned John to work with Ann.  Ann and John hated each other.  They were married years ago, but John cheated on Ann with her now strangled sister.  You should now totally wonder in the back of your mind if John is a suspect, because, you know, John and Ann’s sister used to totally knock boots.

It wasn’t easy, but Ann and John agreed to set aside their differences in the name of bringing justice to Ann’s sister’s murderer.  Ann’s sister was never loved enough by her parents to receive an actual name.  In fact, “Ann’s Sister” is what the county put on her birth certificate.

Ann and John spent twelve hours looking over case files – photos of twelve strangled victims were strewn all over Ann’s apartment.  They were exhausted and hungry.

“We need a break,”  John said.  “I’m exhausted and hungry.  Let’s go to Burger King.  I’m Jonesing for one of their flame broiled Whoppers.  I love Burger King, because you can have it your way.”

“Yeah, just like you had your way with my sister,”  Ann said.  “Burgers are too fattening.  I need to keep my figure so I can get back at you by sleeping with every dude in the precinct, and twice with the ones you hate.  Let’s go to Subway, home of the five dollar footlong.  Their mascot Jared lost a million pounds by eating their sandwiches, you know.”

“Damn it, Ann!”  John said, slamming his fist down on the table.  “When will you ever forgive me for my transgression?  If we can’t agree on where to eat, how will we ever agree on a theory as to who strangled your overly promiscuous sister, who by the way, seduced me with her feminine wiles, so technically, it wasn’t even my fault?!”

The duo went their separate ways, and returned twenty minutes later.  They ate their separate meals, but John smiled when he realized they were sharing a 2-Liter Bottle of Diet Coke.

“At least we agree on one thing,” John said.

“Not really,”  Ann said.  “I wanted Dr. Pepper, but they were all out.  Your judgement vis a vis soda products is akin to the level of judgment you displayed with decisions regarding our marriage.”

After dinner, John popped a mint into his mouth, and offered one to Ann.  “Care for a Mentos?  They are, after all, the freshmaker.”

“No, I’m just going to brush my teeth,”  Ann said.  “I use Crest toothpaste, which 99 out of 100 dentists recommend, and if you can’t trust a paid-off dentist, who can you trust?”

NOTES:  Okay, so maybe that exchange was outlandish, but I meant it that way for emphasis.  Your characters won’t be that obvious, but in passing, it might seem totally normal to say something like: 

Ann was sleepy after studying the case all night, but the Captain demanded her presence at the precinct.  “I’m going to need a Red Bull if I’m going to make it through this day,”  Ann said.

NOTES:  I mean, your characters live in the real world, and will have real world problems that get solved by real world products, right?  Do I have to create a make-believe energy drink company, just to make the people at Red Bull happy?

Ann was sleepy after studying the case all night, but the Captain demanded her presence at the precinct.  “I’m going to need a Zappy Brand Energy Drink  if I’m going to make it through this day,”  Ann said.

NOTES:  Should I just take the brand out altogether?

Ann was sleepy after studying the case all night, but the Captain demanded her presence at the precinct.  “I’m going to need an energy drink  if I’m going to make it through this day,”  Ann said.

NOTES:  Me, personally, I just feel in a story like this, Ann lives in the same world as we do, and if she’s exhausted but needs to keep going, she’s going to have a Red Bull or a Monster.  I mean, you shouldn’t have any of those drinks, because they’re basically carbonated poison, but in this case, Ann needed one.  It’s not my job to criticize Ann.  It’s my job to develop Ann as a character, and in my mind, she’s a woman who puts her health second to finding her sister’s killer, and to do so requires her to stay up all nights and drink RED BULL in the morning.

QUESTION 3 – What if a product is referred to negatively?

“You shouldn’t drink that,”  John said as he spied the Red Bull in Ann’s hand.  “It’s basically carbonated poison.”

“What do you care?”  Ann asked, as she guzzled her beverage.  “You turned our marriage into a pile of garbage that smelled worse than an Arby’s roast beef sandwich.”

“I don’t have to listen to this!”  John said as he popped on a pair of flashy looking earphones.

“Are those Beats by Dre headphones?”  Ann asked.  “What, you have so little confidence in yourself that you wasted a bunch of money on a status symbol that probably isn’t even better than a pair of regular headphones?”

“What?”  asked John.  “I can’t hear you!  I’m wearing my Beats by Dre headphones!  They’re way overpriced and don’t sound any better than regular headphones, but the chicks dig them!  Your sister totally jumped my bones when she saw me wearing these things!”

The Captain walked in.  “Ann, John.  The Bay Area Strangler struck again last night. I sent the latest photos of the victims to your e-mail, Ann. The Strangler was out there running around town, strangling up a storm while you two were busy screwing up this case worse than Apple did with the latest iOs update!”

Ann checked her e-mail to review the latest victim photos.  “Oh my God!”  Ann exclaimed.  “This Microsoft Surface Pro 3 sucks great big…”

“I can’t hear, you Ann,”  John said.  “Still on my ridiculously overpriced headphones.”

NOTES: I feel like, in cases such as these, you’re probably inviting trouble.  You’re basically libeling a product. (I’m not doing that here, Red Bull, Beats, Apple, and Microsoft, your products are the bee’s knees and everyone should buy them!  I’m just teaching other people how to not falsely malign your wonderful products that make our lives better!)  In cases like these, I’d probably leave the brand names off or make up a fake brand:

“This tablet/computer hybrid sucks great big…”

“I can’t hear you Ann,”  John said.  “I’m on my non-descript, overpriced headphones, the brand name of which escapes me at the moment, because I’ve been having memory loss problems due to the fact that I’m depressed over not being able to sleep with your sister anymore!  Oh, and you too!  I miss you too!”

QUESTION 4 – What about song lyrics?

Ann and John agreed on something else.  The photos weren’t enough.  They needed to see the scene of the crime, and they were horrible cops, because they hadn’t done that yet.  Ann’s apartment complex was an hour away, so they carpooled together.  Ann dozed off while John navigated his way down the freeway.

He was bored, so he turned on the radio, flipped the dial around until he found a song he liked.  It was “Area Codes” by Ludacris.  John turned up the volume and sang along.  “You thought I was just 7-7-0 and 4-0-4, I’m worldwide bitch, act like y’all don’t know, It’s the abominable O-man, Globe-trottin international post-man…”

John’s horrible singing skills crept through Ann’s ears like fingernails on a chalk board, waking her up instantly.  She was about to yell at John, when she realized what song he was singing and joined in.  “Is it cuz the like my gangsta walk?  Is it cuz they like my gangsta talk?”

John smiled.  They were now performing a duet together, and for a brief moment, all the bitter resentments and petty, angry feelings they’d held against one another for so long flew out the window.

“Whatever it is, they love me and they just won’t let be me.  I handle my biz, don’t rush me, just relax and let me be free…”

They finished the song together and John turned the volume down.  Ann smiled for the first time in years.

“I can’t believe you remembered, John,”  Ann said.

“Of course I remembered,”  John said.  “You think I’d forget our wedding song?”

NOTES:  Alright.  So, in that instance, I probably would not use that song.  But, take out “Area Codes” and swap in something romantic, like, oh, I don’t know, “You’re Once, Twice, Three Times the Lady.”  or “You are So Beautiful.”  In that case, a divorced couple sharing a happy moment by singing a romantic song could indicate to the reader that there’s still some love between those too, right?  It would make for a nice scene.  But the question is, can the singers of those songs come after me?

QUESTION 5 – What if something is on the TV in the background?

It wasn’t easy for Ann.  She worked full time.  She still had feelings for her lousy, two-timing ex-husband, and hated herself for having those feelings.  Plus, she was a single parent and bore all the responsibility of raising Andy, the son she had with John during their brief marriage.

Ann was trying to focus her attention on the case file, but that was hard.  All should could hear was the obnoxious rantings of Spongebob Squarepants coming from the television.

“Andy, can you turn that off and do your homework?”  Ann asked.  “Mommy is trying to get some work done.”

“I hate you!”  Andy said.  “I’m sick of all your infernal rules, woman!  I want to live with Dad!  He lets me wear Beats by Dre headphones and drink Red Bull with reckless abandon!”

FINAL THOUGHTS:  I made this post because after doing a lot of research, I wasn’t really able to find a definitive answer.  I don’t want to advise any others what to do or not to do, in fact, it’s not my intent to advise anyone but rather, ask if any of you have any advice for me.  Have any thoughts?  Can you think of some situations that might arise that aren’t mentioned here?  Let’s discuss in the comments!

Oh, and the ending – it looked like John did it, but in fact, Ann’s sister framed him.  John was being carted off in cuffs when Ann realized that all the victims had something in common – they’d all gotten busy with Ann’s sister, then dumped her like yesterday’s donuts.  Ann didn’t really think that common thread was a big deal at first, because so didn’t three-quarters of the Bay Area population.  Through her investigations, she determined that Ann’s sister sought revenge because all of these men – so she strangled a bunch of them, strangled herself, but also arranged for an accomplice to strangle more of her lovers after she died, so that explains why the Captain had sent additional photos to Ann’s Surface Pro 3, the King of the Computer/Tablet hybrids, and a fine Microsoft Product.  Ann and John remarried and were happy for many years, until the sequel, in which Ann cheats on John with John’s brother, who dies, and then Ann is totally a suspect.

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8 thoughts on “Questions – Use of Copyrighted and/or Trademarked Products in Your Works

  1. Mei-Mei says:

    Harry Dresden eats Burger King and references Star Wars constantly, and if it’s good enough for Jim Butcher, it’s good enough for me. When books quote poetry or songs, I often see notes about it in the title pages, so I assume they get permission from the authors or their estates if it’s not in the public domain.

    Be honest: “Area Codes” was the first song whose lyrics you could remember, wasn’t it? And thank you for giving us the story’s ending; I would have been desolate not knowing that Ann and John received twelve pairs of Beats by Dre headphones, each in different colors, as wedding gifts.

    • I started reading Skin Game the other day. I’d never read the Dresden Files before, but wanted to, I’ve heard so many good things about Jim Butcher. A few pages in and I couldn’t put it down. I probably should have started with the first book in the series, but I get the gist of it enough to follow through.

  2. […] carry on with our friends, Ann and John, who first appeared on my blog in  The Mystery of the Bay Area Strangler.  Let’s call this next installment: Bay Area Strangler 2:  Electric […]

  3. violetblack says:

    It’s both comforting and disappointing that other creatives can’t find answers to these questions either. Since my medium is different, there are a few things I know for sure I won’t be able to do without a lawsuit, such as including culturally relevant music (although the lawsuit might be my best advertising option, especially since I don’t have much money to lose). But I’m equally stumped on all the other examples. How many fictional businesses can I invent without breaking suspension of disbelief? If I write to a comic book company asking if the protagonist of my gritty screed can be seen in a shirt that they happily sell to anonymous fans in real life, will they be flattered, offended, or simply opportunistic? How can a villain’s unhealthy reliance on glib quotations come through without ticking off the originators of the quotations? Maybe we both need lawyers. :/

    P.S. I think Area Codes is the perfect wedding song for Ann and John.

    • We basically need to get famous/important enough that people who can answer these questions will take our calls. Until then, your characters eat at made up restaurants but one day McDonalds will answer your call and tell you if your character can eat there.

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