brands in nonfiction

by Adam
(Australia)

Question: Can you include brand names in nonfiction writing without prior permission? For example if discussing social media and the major players.


Answer: Please understand that I am not a lawyer and cannot give legal advice. If you are in doubt, you should consult a lawyer and/or do some research on the subject.

That said, you have probably read many magazine and newspaper articles that mention brand names. Many companies see getting mentioned in nonfiction as a kind of advertising/publicity.

The big issue is what happens when you want to write something negative about a company or its products.

Obviously, most companies want to see only positive comments about them in print. But if writers needed a company's approval for every book and article, the result would be a suppression of free speech and information that may be in the public interest to know. It would mean that no journalist could report on corporate corruption, pollution, faulty products, labour issues, etc. It would mean that no writer could express an opinion other than what a company's PR department put out, which would turn publishing into a strictly advertising medium.

So no, you don't need to ask a company's approval before mentioning its product.

On the other hand, companies have a right to not be unfairly defamed by baseless accusations. For this reason, you need to make sure you have evidence to back up claims you make about a company, so you don't engage in slander.

Laws vary in different countries, but my understanding is that you are generally allowed to say anything about a company that is...

1. True.
2. A fair comment.
3. In the public interest to know.

In all three cases, you need evidence to back up your statements.

You can also mention a product in passing without offering an opinion about it. For example, a statement like "A young man stood outside the store drinking Mountain Dew" is more about the young man than the beverage.

What you are not allowed to do is make statements that are both false and can potentially damage a company's profits through defamation.

Comments for brands in nonfiction

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Jan 05, 2015
Mentioning Brands
by: Dunn

So, Glen, let's say that I am writing a novel and the POV character is drinking Mountain Dew? Or if two characters are discussing how someone got a big settlement after burning their mouth on McDonalds coffee? Or a character criticizes the president...or say Fox News is too liberal? LOL ...is it different just because it is fiction?


What's interesting is that a corporation like Mountain Dew could sue a writer for mentioning its brand. And even if the courts side with the writer, it might still cost the writer a lot of money in legal expenses. And corporations know that. So we really have to be careful, even as we tell the truth and inform the public.

Jan 06, 2015
To Dunn
by: Glen

I don't believe a company could sue a writer for mentioning its brand, only for defaming it through lies or unfair comments, as in your example of McDonald's coffee. To imply that McDonald's products are generally unsafe without evidence to support that claim would be a problem. On the other hand, to say that one person accidentally scalded his hand on a cup of coffee one time would not. (Again, I am not a lawyer, and this is just my understanding based on what I have read, not a legal opinion.)

Criticizing a politician is allowed, as evidenced by the hundreds of political blogs and columns written every day. Similarly, if criticizing Fox News was illegal, many comedians would be in jail. Free speech of this nature is an essential feature of democracy, allowing for political debate and the exchange of views. It is constitutionally protected.

You can also mention documented historical facts. For instance, you can say that Nixon bore responsibility for Watergate or that Adolf Hitler was a racist, because the evidence exists to support these claims.

What is isn't allowed is slander, such as making the false claim that a politician committed a sex crime in order to damage his chances of reelection.

If you want to write about a corrupt politician or company in a novel, it's best to create fictional entities, unless you have documented evidence to back up your claims. But many novels mention brand name products to create historical authenticity.

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