I received the following question from an author last week:
I am currently starting a third novel, and was wondering if legally if I could mention (fictional) characters from other works by name. Would I be able to mention (a very famous cartoon character) that my main character idolizes or would I need written permission from the companies that own those characters? I won’t be using the characters in the book, but only mentioning them by name.
I am not an attorney so I can’t offer you legal advice. You need to consult with one.
That said, if it was my book, I would make a decision based on each individual circumstance.
Mentioning a famous fictional character in your book can be very tricky. I might have my character thinking/talking about a specific fictional character developed by someone else (as long as that character is NOT a character in my book itself.) BUT, this would carry somewhat of a risk because the owner of that trademarked character could sue me. Would they win? Who knows? It would likely not be worth the risk. Just one such lawsuit can bankrupt you, even if you win in the end.
For example, I might say my character wants to go to Disney World, and meet Mickey Mouse. I would not have my character in a scene where they actually meet Mickey Mouse (without first obtaining permission from Disney) because, by doing so, I have made Mickey a character in my book. That is trademark infringement.
I might say Sally Mae always aspired to look like Wonder Woman but I would not have her meet Wonder Woman for lunch in the book. That would make Wonder Woman a character in my novel. I would be doing this at the risk of being sued by the trademark owner of Wonder Woman.
I might claim my character loves Batman, but I would not have Batman show up in the book to give my character advice because that would be making Batman a character in my own novel, which would be trademark infringement.
I might claim my character drank an icy cold (brand name soda). I would not say my character was killed by a tainted (brand name soda). That may harm the soda’s brand.
I might have my character reading a Marvel Comic. I would not claim my book was a Marvel Comic.
I can name a song in my novel but I can’t publish the lyrics from that song without written permission from the copyright holder.
Having my character visit a well-known fictional place would not be good because that’s a fictional place created by someone else, and is likely trademarked. Making that place appear in my writing may be trademark infringement. For example, you could not publish a book about a person attending Hogwarts because that is J. K. Rowling’s creation.
Any of these scenarios could result in a lawsuit so I would definitely have my attorney check my manuscript before I published it. But, even getting a green light from your attorney isn’t a guarantee you won’t get sued.
WHAT CAN YOU DO INSTEAD?
It might be easier, less risky, and cheaper (in the legal long-run) to simply create your own superhero for your character to admire (and to create your own places and products). In doing so, you are introducing additional avenues for future revenue as well. For example, if your book takes off, you can then write books about the fictional superhero you created, and even capitalize on him or her further with other merchandising opportunities. You wouldn’t be able to do that if you’d simply mentioned a different superhero, which was owned by someone else.
Celebrities and many owners of trademarked names/products can sue if they don’t like how their name/brand was portrayed, or if they just want to try to get money out of you and your publisher. They may do it just for publicity. Rather than saying your character had lunch with Bratt Pitt, you can instead create a “celebrity” in your book, and talk about how well-known they are, and have your character admire/talk about/interact with that celebrity rather than using a real one.
Again, I am not an attorney. You should definitely consult with one before mentioning people, places, products, or fictional characters (created by someone else) in your book.
About The Author
Angela Hoy is the publisher of WritersWeekly.com, the author of 19 books, and the co-owner of BookLocker.com (one of the original POD publishers that still gets books to market in less than a month), PubPreppers.com (print and ebook design for authors who truly want to self-publish), and Abuzz Press (the publishing co-op that charges no setup fees).
Angela lives on a 52' Irwin Center Cockpit Ketch (sailboat) with her family and pets. Keep up with her family's adventurous liveaboard lifestyle at GotNoTanLines.com
WritersWeekly.com - the free marketing ezine for writers, which features new paying markets and freelance job listings every Wednesday.
BookLocker.com - According to attorney Mark Levine, author of The Fine Print, BookLocker is: "As close to perfection as you're going to find in the world of ebook and POD publishing. The ebook royalties are the highest I've ever seen, and the print royalties are better than average. BookLocker understands what new authors experience, and have put together a package that is the best in the business. You can't go wrong here. Plus, they're selective and won't publish any manuscript just because it's accompanied by a check. Also, the web site is well trafficked. If you can find a POD or epublisher with as much integrity and dedication to selling authors' books, but with lower POD publishing fees, please let me know."
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