Sunday, February 11, 2007

Trademarks & Defamation

Continuing from the Copyright Article posted a few days ago, here's a discussion of trademark and defamation as it applies to novelists. Again, note that I originally wrote this in the year 2000. It is not intended as legal advice, but is merely a very brief overview or certain issues.


What Could This Have To Do With Writing Novels? Good question. And the answer is "not much." Unless you decide to turn yourself into your own publishing company, as a writer, you probably won't be dealing with a trademark. But where trademarks can enter your writing is when you have your heroine xeroxing the secret formula, or your hero rollerblading on the veloway. By using a trademark in that manner, you've just weakened the trademarks held by Xerox® and Rollerblade®. Those companies would prefer your heroine photocopy the documents, and your hero in-line skate.

Instinctively, you might think that the company would be flattered, but legally it's a huge problem for these companies. A mark can become so prevalent that it becomes "generic." And, once a mark is generic, it's no longer a trademark, and anyone can use it. "Aspirin," "murphy bed," and "cellophane" are all trademarks that became generic and are now freely available for use. So the mark owners want you to either use the descriptive work or the trade name with the descriptive word (i.e., photocopy or Kleenex tissue) or include the ® symbol after you use a trademark in your writing (the ® is for trademarks registered with the trademark office and the TM simply means that the mark is considered a trademark (but isn't registered). You probably want to write the way people talk. And your publisher will have a house style (often capitalization of a trademark). Ultimately, the publisher's style will resolve the "can I use this mark this way" question for the author.


What Is Defamation? Defamation generally means a false statement about someone (our plaintiff) that injures his or her reputation. It falls into two categories: libel (written defamation) and slander (spoken defamation). Because of free speech implications, there are various standards below which the defendant's conduct must fall in order for the defendant to be held liable. Which standard applies depends on the type of plaintiff, the topic, and the state (since most libel issues are determined by state law).

Huh? For example, the Supreme Court has said that if the plaintiff is a "public figure," then he must prove that the defendant made the statement with knowledge that it was false, or with a reckless disregard for the truth or falsity of the statement. That's a pretty high standard, and the reason goes back to the First Amendment. A person can be a general public figure, or a public figure for a limited purpose. Your average Joe, however, not involved in anything of pubic interest, only has to prove a minimal amount of fault before he can recover for defamation. Each state can set what that level of fault is (and could theoretically set it at the same high level as for public figures). Most states say mere negligence is a sufficient basis for liability.

But What If I'm Just Writing Fiction? For the most part, the law of defamation is something you should be aware of if you are writing non-fiction, since that is the most likely scenario under which you will be discussing real people in your written work. However, it is conceivable that you will use real people in works of fiction. Perhaps your characters appear on the Jerry Springer show. Don't defame Jerry, even if you don't refer to him by name. Or perhaps you attended a session with a psychologist who conducts group therapy in the nude, and decide to use that incident as a basis for your novel. If you only thinly disguise the psychologist, and include false information, you may be subjecting yourself to a defamation suit. That is what happened in a 1980 California case. The California court said that the issue wasn't whether the work was fiction, but whether a reasonable person reading the book would understand that the fictional character was, in fact, the plaintiff, acting as described. Because publication to only one person other than the plaintiff and defendant is sufficient to support a claim for libel, it wouldn't matter if only one reader clued in that the plaintiff formed the basis for the "character."


Obviously, there are a lot of scenarios involving legal issues that can arise while you're writing a book. In addition to the topics in this article, you may be faced with concerns about privacy or similar topics. This article is in no way comprehensive, nor is it intended as legal advice, either generally or with regard to specific works. If you think you may have a legal issue, the best thing you can do is consult a lawyer. If cost is your concern, contact the local or state bar association. It may be able to refer you to a lawyer who does low or no-fee work for artists and writers.

This article was written in the year 2000. Please note that it does not constitute legal advice.

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