A legal question

[MemoryTale]

Hi all, I've recently started a book that centres around a man attempting to write and direct an epic fantasy. To give my following question some context, I'm going to drop in an excerpt.

As this thought departed, the metaphorical light bulb blinked on. There had been a whole series of books turned into film fairly recently, each one doing exceptionally well at the box office. And while Harry Potter wasn’t his cup of tea, before that had been Lord of the Rings, and that was tea, plus crumpets with maybe a biscuit or two for dunking.

My question is, how legal is it to name drop Harry Potter and LOTR? Can I leave this as is, or do I need to seek permission from their respective owners before I can use their names in a work of my own?

Thanks in advance.

 

[Ashcroft]

IANAL, but I think that it'd be wise to leave out references to the real world. The problem is that if the owners of the intellectual property and/or copyright decides that you've written something negative about them then they could argue that you've slandered them in a way that affects their trade - that'd be very costly. Even if your piece is non-fiction it's still a dangerous territory - just look at the bother that Simon Singh got into with the chiropractic industry.

Hopefully, one of our resident lawyers (I'm looking at you, Judge!) will come down here and answer you briefly, but remember that they're not your paid counsel and can't be relied upon for in-depth legal advice.

 

[The Judge]

There are two different issues, copyright and defamation.

Copyright stops you passing off someone else's work as your own, or even quoting large sections of it (or any of it if they are song lyrics) without permission. It doesn't, though, prevent you from referring to the book titles, or even the characters by name, just as you could talk about your hero using a Hoover or going to the Dorchester Hotel. Using their characters is a different kettle of fish, though.

Defamation stops you from saying disparaging things without proof that what you're saying is true (very rough definition). So you can't call someone a lying pederast unless they are (and you can prove it), but nor can you say something which impliedly would demean them. But that doesn't prevent simple references in passing in most crcumstances (if you were writing porn or worse you might get some stroppy letters...).

So what you've done here is fine.

 

[MemoryTale]

Thanks for clearing that up. Just to double check, if a character makes issue that he really hates a specific work of fiction, would that count as defamation or does the fact that it's a character's opinion and not mine count in my favour? I don't intend to do anything like that at the moment, but better safe than sorry

 

[The Judge]

You should be OK, but it depends on what you write and how you write it. For instance saying that author X must have been taking drugs when she wrote character Y is going to get you into trouble! Saying that you think character Y is unconvincing and X could have done better is fine.

 

[Teresa Edgerton]

Keep in mind, too, that you can't copyright book titles. Some of them are associated with merchandise and can be trademarked™ (and usually are) but if you aren't using the word to associate yourself with the product in any way, then there should be no problem.

 

[TheEndIsNigh]

There are two different issues, copyright and defamation.

Copyright stops you passing off someone else's work as your own, or even quoting large sections of it (or any of it if they are song lyrics) without permission. It doesn't, though, prevent you from referring to the book titles, or even the characters by name, just as you could talk about your hero using a Hoover or going to the Dorchester Hotel. Using their characters is a different kettle of fish, though.

Defamation stops you from saying disparaging things without proof that what you're saying is true (very rough definition). So you can't call someone a lying pederast unless they are (and you can prove it), but nor can you say something which impliedly would demean them. But that doesn't prevent simple references in passing in most crcumstances (if you were writing porn or worse you might get some stroppy letters...).

So what you've done here is fine.

Or worse???

Personally, I find references to other works in a book unproductive, in that it detracts from the writers own ability. To me it suggests a free ride attempt.

It should be possible to introduce your own famous, fictional work and build it up within your own storyline.

A few paragraphs of dialogue between you characters should be enough to give the reader the idea that

"The Tales of Splogwand" ​

'An epic journey of daring do, set among the bogs of Splog'​

Is the hottest title to hit the shelves since​

'The Dawn of Time' by Ratpickler Smith.​

I know this sounds flippant, but you get the idea.​

As soon as you mention those other real world titles you're assuming the reader has read them (and think they were worth it) and hitching a ride on the settings and characters therein.​

Whereas with the Splogwand books, you are in control, no pre- knowledge is required and it leaves you free to be as critical and defaming as you wish.​

Plus it would be difficult to mention a real title and not tear it to shreds given that any discussion about it would require two opposed views, unless the conversation was of two or more admirers. Where's the fun/interest in that?​

Books within books are as old as the hills.​

 

[hopewrites]

another thing to consider is that it would date your piece. Like when movies dress their characters in the latest fashion without having an eye for timeless-taste. you go back and watch it a few years later and you can immediately see its not a modern piece, for me that throws questions onto its relevance, I mean how can i be expected to identify with a character who is supposed to be cool, and is decked out in hot pink patent leather heals with electric blue eyeshadow diapering into her teased out monstrosity of a hair do?

 

[Karn Maeshalanadae]

I mean how can i be expected to identify with a character who is supposed to be cool, and is decked out in hot pink patent leather heals with electric blue eyeshadow diapering into her teased out monstrosity of a hair do?

But enough about your wardrobe, HW.


Actually, I would always err on the side of caution with such things. I don't like to reference characters or titles to other authors, I agree with an above post that it can be shoddy workmanship. Also, as HW says, it does date the story and such things can get lost in time, barring the use of classics. (Granted, LotR is a classic and I'm sure HP will reach that stage with its readers, but still, why take such chances?)


The way I see it, conversations about what books or movies characters like is generally a hum-drum attempt at fleshing out and filler, and should be kept to a minimum at best. Unless it's relevant to a crucial scene, just leave that stuff out.

 

[Peter Graham]

Thanks for clearing that up. Just to double check, if a character makes issue that he really hates a specific work of fiction, would that count as defamation or does the fact that it's a character's opinion and not mine count in my favour? I don't intend to do anything like that at the moment, but better safe than sorry

Good Lord, no.

It is perfectly proper to express an opinion or to have a character express an opinion. As the writer, the character's opinion is your opinion - characters aren't real, you know.....

It's a complex area, but it only really becomes defamation if a) you try to cloak opinion as fact or are deliberately setting out to cause trouble, b) what you are saying is untrue and c) the subject of the defamation suffers loss as a result.

So, the following phrase is not defamatory:

"Peter Graham's latest trilogy, Warriors of Zarg, is a further example of the sort of overwritten, two-dimensional, ponderous hogwash which is such a hallmark of what for reasons of brevity I will refer to as his "work". You'd find better character development in the ingredients list of a box of cornflakes."

The following phrase might be defamatory (if it is untrue):

"The reason that Peter Graham churns out such cobblers is because he is currently doing a life stretch for murder at HMP Slade and he's too feeble minded to get a job in the prison kitchen."

However, if the reasonable person would know straight away that this was merely joshing, it wouldn't be defamation. It's all about the context:-

"Peter Graham is a convicted murderer. Don't buy his books!"

...is far more likely to be regarded as defamation. If untrue. Which it is.

Regards,

Peter

 

[Dave]

Another thing to consider is that it would date your piece. Like when movies dress their characters in the latest fashion without having an eye for timeless-taste.

So, you've see Mike Nichols' Working Girl too?

What's even funnier is my Wedding photographs are from the same year!

 

[Brian G Turner]

I think a more dangerous issue with disparaging popular works is that you could lose reader interest and sympathy if you think something poor that they rate highly.

 

[Blackrook]

Short references to other book titles won't get you in legal trouble, at least in the United States. Also, the truth is always a defense in any libel action.

Your opinions, or the opinions of the characters, don't have to be true because they are opinions, not facts. Keep in mind that movie and book critics savage works of fiction all the time and can't be sued for it.

All works of fiction have a little disclaimer at the front to discourage lawsuits:

This is a work of fiction. Names, characters, places and incidents either are products of the author’s imagination or are used fictitiously. Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.

But to be coy, you can refer to "a certain fictional work involving hobbits, elves, and dragons." Readers might even think themselves clever for figuring out what you're talking about, as an insider joke.

 

[MemoryTale]

It's all good stuff to think about, so thank you all once again.

I'm honestly not concerned with whether or not it will appear dated in ten years time. Technology would have moved on by then, so to my mind it makes more sense to set it in the present day so that if someone picks it up ten years from now, it will simply have been set ten years ago. I think if characters are well written, we can relate to them no matter what they're wearing.