Using Real World vs. Fictional Company Names and Product References in Your Story

by Todd Bergmann-Rogers
(Phoenix, AZ)

Hi Glenn!

Got married a year back and had a name change, but still follow you, and really want to thank you for this wonderful and NECESSARY, relevant resource we have in this website!

My question today is about the use of "real world" companies like Microsoft, Boeing, NASA, et al. vs. having to come up with fictional company names and also, the use of products like Coke, Pepsi, Lay's (betcha can't eat just one!), etc in the course of storytelling.

I came across a first person narration in the Male/Male Erotica genre that was written as a fantasy set in the "real world" which used names of cars like Mercedes, Audi, Porsche, etc.

How appropriate is it to use such real world references in a fictional setting?

And if you decide to use real world references, should one stay within the boundaries of the real world or would it be ultimately confusing or muddying the waters to include fictional references alongside the real?

Answer: First... congratulations!

Second... welcome back.

Third... Thanks for the kind comments.

As for your question...

I get asked this question a lot. I don't know exactly who is spreading the notion that you can't or shouldn't use brand names in fiction, but it's obviously false. One sees brand names in stories all the time. Often they are used to lend the setting a sense of authenticity.

The only time you should avoid real brands in your writing is if you are planning to say something about them that is untrue and potentially libelous.

For instance, if you write a story in which Brand X turns out to be shoddy or dangerous to public health, or in which Company X is behaving in an unethical or immoral manner, then the company may have reason to argue in court that you are unfairly hurting their reputation and therefore their business.

In that case, you may be better off creating a fictitious product or company.

But in most cases, mentioning a brand name in a novel is actually giving the company free advertising. So it would make little sense for companies to discourage such a practice.

Just imagine if a best selling novel featured a main character who loved using Product X. Many fans of the book would rush out to buy that product so they can feel closer to their favourite character.

Would a company really want to stop that?

Cheers.

P.S. I am NOT recommending deliberate product placement here, which might destroy a writer's credibility with readers.

Product Placement, Real World Professional References In My Story

by Todd Bergmann-Rogers
(Phoenix, AZ)

Hi again, Glen!

I am curious.

When would I need to ask permission to use a product, service, invention and/or a professional public figure's name (like RuPaul or, say, another real world public figure) or other copyrighted or intellectual property references in my story and how would I go about requesting that permission?

Furthermore, how would I reference that permission in the formatting of my eBook or physical book?

I am reading more and more books in the 1st person these days and these authors are using quite a bit of product placement, pop culture and aforementioned general "real world" references that would be copyrighted or protected by intellectual property laws (like movies and TV Shows).

I was wondering also what is considered too much (if there is such a thing)?

Your insights are always eagerly looked forward to!

Thanks for your help in advance!

Answer: Hi Todd,

I feel I've answered this question many times, but here goes. (Just remember, I am not a lawyer and cannot give legal advice. The following is my understanding based on what I've read, but in any situation where there's a lot of money involved, you may wish to consult a lawyer.)

Luckily, book publishing is often an area where there is not a lot of net profit, so even if mentioning a trademarked product was something you could be sued for, it's usually not worthwhile for a company to bother suing a publisher or an author.

However, as you point out, the names of products and public figures appear regularly in fiction. You don't need to get permission to include them.

Public figures by definition are in the public domain. If it were illegal to mention them, the entire news media would shut down overnight. Same with product names.

When a product name is trademarked, it just means you can't produce a similar product with the same name and sell it, thus confusing the public and unfairly cutting into the market share of the company that trademarked the original product. It doesn't mean you can't write a review of it or mention it in your novel. Nor do you need an acknowledgements page.

Mentioning products that are common is often a way to add authenticity to a story's setting.

The only way you could get into trouble is if you say something that is untrue about a real person or product that has the potential to damage the reputation or business of the owner -- in other words, if you tell a lie that costs someone money.

For instance, if you put in your story that product X causes cancer or politician Y is a pedophile -- and you have no evidence to support such a claim -- then you could get into trouble.

But the mere mention of a product or public figure is not a problem. If anything, you would be giving free publicity to the entity in question, for which they are more likely to be grateful than litigious.

The other thing you can't do is reproduce copyrighted material -- such as words written by another author or songwriter, or images created by an artist -- beyond certain limits, without permission, because that would cut into another creator's right to profit from their work.

In cases where you do want to reproduce this sort of intellectual property, you would need to contact the publisher to request permission.

So if Paul Simon writes a song about his Nikon camera and publishes a recording of it (which he did), he doesn't need Nikon's permission, because simply mentioning a trademarked name doesn't hurt the owner financially. However, if you want to reproduce Simon's lyrics in your novel, that would trespass on Simon's right to profit from the reproduction of his work, and you would need permission.

Clear?

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.

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