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Mentioning actual organizations in a story

Jim S
Updated:

I don't know if this is the proper forum for this question but I'll offer it anyways. For an author, how much of a concern is it for mentioning existing organizations in a story, e.g. the USGA (this isn't the one under consideration)?

I'm thinking of a situation where the story may follow a path that is less than flattering to organization. My reason for asking is noting how assiduously one of my favorite authors avoids the mention of any such organization. Like the proverbial plague. Is it because of potential land mines? Also, despite statements in a previous post to the topic area, I might consider authoring a story at SOL.

Grant

@Jim S

I'm thinking of a situation where the story may follow a path that is less than flattering to said organization.

I've read stories where the author has created fictional associations, government departments, companies & the like.
And others that use actual associations, depts. etc & dumped an incredible amount of crap & abuse on them.

Replies:   Crumbly Writer
Crumbly Writer

@Grant

The problem isn't the ability to talk about a story, but trademark restrictions. Since companies own the trademark on their name, they can technically sue you for using it. No one is stupid enough to sue an author for using their trademark, after all, that would be incredibly bad publicity, but ... if you attack them, they could retaliate by taking you to court to shut you up.

The general rule of thumb is, use companies and place names all you want, unless you're specifically attacking the organization (or suggesting they'd act less than honorable). In that case, switch to either fictional locations or fictitious companies (i.e. write the same story, but call it something else so everyone knows who you're talking about).

In the U.S., Freedom of Speech covers a lot, but when you're facing a law-suit costing millions before you ever appear in court, most authors will fold pretty quickly. And unless you're a big name author and a traditional publisher is willing to defend you, no one will come to your defense.

I often use real locations and real businesses, though if I'm going to show the cities behaving like asses, I'll switch to a fictional location.

Replies:   Not_a_ID
aerosick

@Jim S

I don't know if this is the proper forum for this question but I'll offer it anyways. For an author, how much of a concern is it for mentioning existing organizations in a story, e.g. the USGA (this isn't the one under consideration)?


I've been adding © to the actual names mentioned in my stories.

Not_a_ID

@Crumbly Writer

The general rule of thumb is, use companies and place names all you want, unless you're specifically attacking the organization (or suggesting they'd act less than honorable). In that case, switch to either fictional locations or fictitious companies (i.e. write the same story, but call it something else so everyone knows who you're talking about).


Pretty much this. Major government agencies aren't likely to sue you, although they may find other ways to make you hate life. Non-Governmental entities are very much in the tread carefully category, even public personalities to a large degree.

If you do decide to use a company name, or a celebrities name/persona in a work of fiction you better do your homework and make sure the way you use them won't be considered objectionable by them and likely to incur a lawsuit.

For some companies and persons, that means not linking certain things together, even if you believe or know them to be true, or don't think it actually matters.

The Transformers Movies encountered this with some of the characters "human disguise" where they had to change the make/model of a few characters car forms due to both licensing issues, and assertions from the relevant automaker that IIRC they didn't want their brand associated with acts of destruction/warfare or something to that effect going forward. (Basically, "even if it was in our power to give you permission to do so, we would still say no")

Of course, where your writing ends up also plays a role in what you can get away with. Someone writing for mass market publication is going to have a different bar to clear due to the larger exposure their work gets when compared to say, posting on SOL. The mass market publication gets wider exposure, and also being a commercial work, opens it to attentions that freely available stories online don't generally get.

Replies:   Dominions Son
Dominions Son

@aerosick

I've been adding © to the actual names mentioned in my stories.


Wrong symbol. That is for copyright. You want the trade mark symbol which is different and in any case:

1. as a matter of black letter law it is not necessary unless you are claiming the trade mark.

2. Won't matter with those companies that are likely to threaten/file frivolous suits over mention of a trade marked name.

3. Many of those names, particularly government agency names aren't trade marked anyway.

Dominions Son

@Not_a_ID

The Transformers Movies encountered this with some of the characters "human disguise" where they had to change the make/model of a few characters car forms due to both licensing issues, and assertions from the relevant automaker that IIRC they didn't want their brand associated with acts of destruction/warfare or something to that effect going forward. (Basically, "even if it was in our power to give you permission to do so, we would still say no")


Technically, under US trade mark law no permission is actually necessary for that sort of use of a trade mark. You can mention / show a trade mark to your heart's content without violating the trade mark.

The purpose of trade marks is to avoid confusion in the market place. You are on solid ground as long as you aren't claiming to be the owner of the mark or representing some other product as being the product of the owner of the mark.

The one exception is disparagement of a trade mark. However, that is very similar to libel/slander law in that truth is an absolute defense.

In the transformers case, an automaker might try to make a case for disparagement, but it would be a very weak case and it would be very unlikely that they would prevail (at least under US law).

On the other hand, the Transformers movies had world-wide distribution, and other countries trade mark law may be more restrictive than US law.

Ernest Bywater
Updated:

@Jim S


I don't know if this is the proper forum for this question but I'll offer it anyways. For an author, how much of a concern is it for mentioning existing organizations in a story, e.g. the USGA (this isn't the one under consideration)?


This is the correct forum to ask these types of questions.

As to the question: in many cases you can get away with it, in others you can't and should avoid using them unless you can get their prior written permission.

For example, most government bodies are safe to play with - FBI, DHS, Atlanta Police Department, Congress, etc.

Businesses are usually safe when refereed to in the course of their business, such as having a person buy lunch at Denny's or McDonalds, or a car from Chrysler. Refer to them in their normal retail type operation and refrain from making rude comments and you can be fairly sure they won't do anything. You can often get away with a casual mention of a private association as well.

However, set a story in a registered business or private association like the USGA and you damn well better have their prior written permission or get ready for the law suit.

In the story Shiloh The Scot mention a particular university by name because he liked it. When I took over the project for him I asked them about using their name and they threatened legal action if I did. So one of the first things I did was to change the name of the university in the story. I later found out they'd found the story and were talking to their legal people but stopped action when I changed the name. It's all to do with the way the US laws on protecting trademarks, trade names, and some other intellectual property are written. In essence, if they do not protect against all unapproved outside or external usage they dilute the protection and it can be legally misused.

It's because of this I don't name the main organisations I deal with in my stories if they're in the US, unless they're government bodies that'd get a lot of public ridicule for suing me over the usage.

typo edits

Dominions Son

@Ernest Bywater

It's all to do with the way the US laws on protecting trademarks, trade names, and some other intellectual property are written. In essence, if they do not protect against all unapproved outside or external usage they dilute the protection and it can be legally misused.


This is technically not correct. They only need to fight true violations and cases where the trade mark is used as a generic term for a whole class of things within the field the trade mark applies to. They do not need to sue to protect against use as a generic term. Public education campaigns to push people away from the generic use can be enough.

Due to legal limitations on government agencies holding IP, public university trade marks are generally limited to apparel and other merchandising.

And in the specific case you mention, they might well have been talking to their legal people, who likely were telling them they didn't have a case. To appease their client they would probably send a nasty gram (cease and desist) but it would be unlikely to go further.

Crumbly Writer

@aerosick

I've been adding © to the actual names mentioned in my stories.

If you're not the actual copyright holder, I'm not sure that's legal. It's a declaration that it's the official legal copyright. If you were to misrepresent an image bearing that signal, the company could potentially lose their copyright (for their logo, at least).

There's no reason to list the copyright symbol in a story, other than your own.

Ernest Bywater

@Dominions Son

They only need to fight true violations and cases where the trade mark is used as a generic term for a whole class of things within the field the trade mark applies to.


Tell that to the many people Disney have sued for using material Disney has trademarked. And the people Monsanto has sued for using legally purchased grain Monsato has registered a patent over the genetic deisgn of.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son

And in the specific case you mention, they might well have been talking to their legal people, who likely were telling them they didn't have a case. To appease their client they would probably send a nasty gram (cease and desist) but it would be unlikely to go further.


As to universities suing or not, you may want to check out the details of these cases.

http://dailycaller.com/2015/10/23/univ-of-kentucky-sues-tiny-distillery-because-it-has-decided-it-owns-the-word-kentucky/

https://www.insidehighered.com/quicktakes/2015/10/22/u-kentucky-asserts-trademark-right-kentucky

http://www.wdrb.com/story/30328448/uofl-student-sues-katina-powell-claims-she-damaged-future-degree-from-the-university

http://www.nashvillepost.com/home/article/20448469/western-kentucky-sues-mascot-big-reds-italian-lookalike

just the first ones I could easily find

Not_a_ID
Updated:

Anybody can sue anyone for any reason. They just have to fill out the relevant paperwork and pay the appropriate fees to the clerks of the court in question. They can then also make all the noise they want about "having a case pending in court."

That doesn't mean the judge won't toss the entire case after only hearing the opening statements and reviewing any preliminary evidence presented. In some cases, I think it has happened even faster than that.

Just because a case is pending doesn't mean it's legally valid, and it certainly doesn't mean the party filing is going to win.

It just means they think they can either win the case, or scare the party they filed against into accepting their demands regardless of the legal merits of the case. Being able to throw more money at the case than the defense is likely to even have just helps further the psychology of that approach working in their favor.

Replies:   Ernest Bywater
Ernest Bywater

@Not_a_ID

Anybody can sue anyone for any reason.

Ayep, but it's always better for you and your bank balance to avoid the situation in the first place, if you can. And in this situation with writing it's damned easy to avoid right up front.

Replies:   Not_a_ID  Crumbly Writer
Not_a_ID

@Ernest Bywater

Ayep, but it's always better for you and your bank balance to avoid the situation in the first place, if you can. And in this situation with writing it's damned easy to avoid right up front.

Yeah a few minutes doing a find and replace across a digital manuscript is a lot cheaper than hundreds of dollars in court fees and legal representation costs that can go well beyond that.

Replies:   Ernest Bywater
Ernest Bywater

@Not_a_ID

Yeah a few minutes doing a find and replace across a digital manuscript is a lot cheaper than hundreds of dollars in court fees and legal representation costs that can go well beyond that.


That was my thinking with Shiloh despite them being in Texas and me being in Australia, I felt it wasn't worth the hassles.

Ernest Bywater
Updated:

I'm currently writing a story about baseball. Back on January 25th I wrote to a AAA club for permission to use the club name in the story. I got an automated reply stating they received the message, but nothing since. I've continued on with the story, but have no references to the club name at all. If I finish it before I get a reply they will have missed an opportunity for free publicity.

edit to add: Prior to that I wrote to a Major League club about training camps for kids they had in their area, and a few other baseball questions. They replied within a week with an answer to everything. The one I didn't like was their owner wanted input and some control if I used the club name in the story. I declined their offer.

Replies:   Dominions Son
Dominions Son
Updated:

@Ernest Bywater


Monsanto has sued for using legally purchased grain Monsato has registered a patent over the genetic deisgn of.


The Monsanto issue is patents, not trade marks, that's an entirely different set of rules.


Tell that to the many people Disney have sued for using material Disney has trademarked.


A lot of those are copyright cases not trademark cases. Things get trickier when you start talking about cartoon characters, because the art work can be covered by both trade marks and copyrights.

Dominions Son

@Ernest Bywater


http://dailycaller.com/2015/10/23/univ-of-kentucky-sues-tiny-distillery-because-it-has-decided-it-owns-the-word-kentucky/

https://www.insidehighered.com/quicktakes/2015/10/22/u-kentucky-asserts-trademark-right-kentucky


Actually no, those support my case, not yours. The cases you are referring to occurred because Kentucky Mist (the distillery) tried to file for a trade mark in the area of apparel (merchandising) for which the University of Kentucky already had a trademark. That case was all about apparel

Also, UK sent Kentucky Mist a nasty gram, but never filed suit. The actual court case was a lawsuit by Kentucky Mist against UK over the nasty gram.

http://www.kentucky.com/news/local/education/article50944775.html

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater


http://www.wdrb.com/story/30328448/uofl-student-sues-katina-powell-claims-she-damaged-future-degree-from-the-university


Again, this does not support your case. The article you linked to has a link to the actual complaint. That law suit has nothing at all to do with trade marks.

In fact it's in the state courts under state law tort actions. If it were a trade mark case it would be in federal court.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater


http://www.nashvillepost.com/home/article/20448469/western-kentucky-sues-mascot-big-reds-italian-lookalike


From the article you linked to:

A preliminary hearing is set for Wednesday near the northern Italian city of Ravenna.


The case is in Italian courts under Italian law, so not relevant to US law.

Dominions Son

@Ernest Bywater

I'm currently writing a story about baseball. Back on January 25th I wrote to a AAA club for permission to use the club name in the story. I got an automated reply stating they received the message, but nothing since.


They are probably still trying to figure out why you think you need permission.

The one I didn't like was their owner wanted input and some control if I used the club name in the story. I declined their offer.


Of course they wanted that. That doesn't mean that they are legally entitled to it.

Replies:   Ernest Bywater
Dominions Son

The main legal issue in mentioning real organizations in stories is if you are putting the organization in a bad light, they could potentially sue for defamation (slander/libel).

Ernest Bywater

@Dominions Son

Actually no, those support my case, not yours.


It still shows the universities raise merry hell about the use of anything to do with their name. If there's any intelligent justice in the US courts (a miracle would be needed for it, but not totally impossible) it should be ruled they can only control apparel that has either the name Kentucky University or any special way they write Kentucky that wasn't used by anyone else. They own Kentucky university not Kentucky, but that doesn't stop them trying to claim more. Which is the point I was making about their rabid behaviours.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son


Again, this does not support your case.


The case supports my point about the university being rabid about protecting their name - which is where we started on this. It matters not if it's federal state, or local court trademark or copyright - it's all about how they go about protecting their name and how they're perceived - which is what my initial post was about.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son


The case is in Italian courts under Italian law, so not relevant to US law.


So, it still shows how stupidly rabid the university is about protecting what it perceives as its own. It matters not if they have a valid case or not, it's the trouble they'll cause, trouble an author can very easily avoid.

Replies:   Dominions Son
Ernest Bywater

@Dominions Son


They are probably still trying to figure out why you think you need permission.


Because I want to name them and their organisation in the story. If they see no legal reason to stop me, they'd say so very quickly because it would be good PR.

It matters not if what they want can be legally enforced in the end, the trouble from them trying isn't needed and is easily avoided.

Replies:   Dominions Son
sejintenej

@Ernest Bywater

a person buy lunch at Denny's or McDonalds, or a car from Chrysler. Refer to them in their normal retail type operation and refrain from making rude comments and you can be fairly sure they won't do anything. You can often get away with a casual mention of a private association as well.

I suspect that you should be ultra careful if you have a character who (in the story) is employed and does something which the named company would disapprove of its real employees doing (such as suing the company for something or being a streetwalker).

Switch Blayde

@Jim S

how much of a concern is it for mentioning existing organizations in a story


From an article at http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html under the heading of "Could I Be Liable for Libel in Fiction?"

"7. Remember that businesses and organizations can be defamed, too; so take care to avoid the false implication that an identifiable real entity has engaged in bad acts."

richardshagrin

@Dominions Son

Just to clarify a point that probably doesn't need it. Slander is spoken. Libel is written. Whatever you put in a story, it is exceptionally unlikely to be sued for slander. Unless you speak the story on something like U tube, or its one of Literotica's stories with dialog you can listen to.

Defamation does include both. So this is a very minor nit to pick.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

Because I want to name them and their organisation in the story.


There is absolutely nothing in US law that requires that you have their permission for that.

Dominions Son

@Ernest Bywater

If there's any intelligent justice in the US courts (a miracle would be needed for it, but not totally impossible) it should be ruled they can only control apparel that has either the name Kentucky University or any special way they write Kentucky that wasn't used by anyone else. They own Kentucky university not Kentucky, but that doesn't stop them trying to claim more. Which is the point I was making about their rabid behaviours.


Actually, it is extremely likely that the US courts would have ruled exactly that. (Their trademark is for "University of Kentucky" not just "Kentucky".

This is why rather than actually defending their nasty gram in court, they moved to dismiss the case on the basis that because they are a public university they are a government entity and therefore have sovereign immunity.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

So, it still shows how stupidly rabid the university is about protecting what it perceives as its own. It matters not if they have a valid case or not, it's the trouble they'll cause, trouble an author can very easily avoid.


If they have a valid case under Italian law then it doesn't show them being "stupidly rabid" about anything.

Replies:   Ernest Bywater
Dominions Son

@Ernest Bywater

The case supports my point about the university being rabid about protecting their name -


Actually the Illinois case is not about protecting their name. They are not claiming that the author shouldn't have used their name without permission.

That case is about protecting their reputation, it's a defamation case with a few extra claims for interference with contracts (driving other students away).

It's not about the use of the university's name, but about the fact that the author said bad things about them.

Replies:   Ernest Bywater
Dominions Son

@richardshagrin

Just to clarify a point that probably doesn't need it. Slander is spoken. Libel is written. Whatever you put in a story, it is exceptionally unlikely to be sued for slander.


I am aware of this, but the rules for both are largely the same, which is why the trend in the courts is to use the term defamation rather than libel or slander.

Ernest Bywater

@Dominions Son


Actually the Illinois case is not about protecting their name.


They are out to protect their name. It's only a defamation case if they can prove she wasn't asked to do what she says. Be she telling the truth or lying, they're still out to protect their name from what they perceive as an abuse of it - be they right or wrong. It still shows what i said at the start, they'll take action to protect themselves from what they perceive as bad PR. Use their name in a story they perceive as bad, and they'll go the same route with you for the same reasons.

Ernest Bywater

@Dominions Son

If they have a valid case under Italian law then it doesn't show them being "stupidly rabid" about anything.


If they win, it just supports my original point about the universities being rabid to protect anything to do with them and crazy laws. No matter how much it may, or may not, look like the university mascot, there's no way any intelligent being can say an image on an Italian TV show is a conflict with a USA university mascot image. And, again, it goes well outside the earlier limitation you mentioned about clothing.

Ernest Bywater

@Dominions Son

This is why rather than actually defending their nasty gram in court,


sending the nasty gram to start with is an act of excessive protection they shouldn't have been doing in the first place, the very sort of act i was talking about being a problem for people to deal with. And it's often a toss up which side the US courts will come down on with these cases.

Replies:   Dominions Son
Dominions Son

@Ernest Bywater

sending the nasty gram to start with is an act of excessive protection they shouldn't have been doing in the first place


The nasty gram costs them nothing and is easy to ignore when you know it is meritless.

And it's often a toss up which side the US courts will come down on with these cases.


If the university thought that that it had any chance of winning on the merits, they would not have plead sovereign immunity.

Crumbly Writer

@Ernest Bywater

Ayep, but it's always better for you and your bank balance to avoid the situation in the first place, if you can. And in this situation with writing it's damned easy to avoid right up front.

That's why many authors incorporate under their pen name, even if their pen name is their actual name. That way, if anyone ever sues you for some absurd reason, the most they can claim is how much you earned from the book[s], rather than collecting your personal savings.

Crumbly Writer

@Dominions Son

The case is in Italian courts under Italian law, so not relevant to US law.

Because, of course, if anyone has an interest in protecting the name "Kentucky", it's the Italians!

Replies:   Dominions Son
Crumbly Writer

@Dominions Son

The main legal issue in mentioning real organizations in stories is if you are putting the organization in a bad light, they could potentially sue for defamation (slander/libel).

Slander is incredibly hard to prove, especially if the statement is 1) true or 2) personal opinion.

In most fictional stories, the opinion isn't even the authors, but that of a single character, so it's difficult to prove malicious intent. They were simply portraying a single position, not trying to assert a clearly false statement was true when it wasn't.

Of course, that's also why Donald Trump recently began threatening to "rewrite" the U.S. Libel laws (something which no President is entitled to authorized to do), because he resents news organization fact-checking his outlandish invented 'facts'.

Replies:   graybyrd  Dominions Son
graybyrd

@Crumbly Writer

There's very little to do with "winning" or "losing" in these cases. In the US, the average citizen lacks to means to appear in court. It's simply too costly. Thus the very threat of a suit, or the actual filing of a suit, places a person of normal means in financial jeopardy. Corporations exercise this "club" routinely. So do wealthy "bullies" who can use the US court system as a bludgeon against victims of lesser means.

When Bernie Sanders declares the US justice system "dysfunctional," he is speaking of it at all levels, both criminal and civil.

Dominions Son
Updated:

@Crumbly Writer


Because, of course, if anyone has an interest in protecting the name "Kentucky", it's the Italians!


The Italian case has nothing to do with the Name Kentucky That case is Western Kentucky University, a separate entity from the University of Kentucky, suing an Italian TV company for ripping off their mascot. An American state university suing an Italian company in Italian courts. I wonder if the Kentucky tax payers have any idea how much they are spending on the lawsuit?

It's the University of Kentucky that got in the legal fight with Kentucky Mist over the use of "Kentucky" on t-shirts.

Dominions Son

@Crumbly Writer

Slander is incredibly hard to prove, especially if the statement is 1) true or 2) personal opinion.


True, but:

1. In print it would be libel, not slander. That confusion is why many courts have taken to simply lumping both under defamation.

2. Litigious Asshats can still make life difficult, even if they don't have a legal leg to stand on.

Ernest Bywater

Minor technicalities aside, it still all comes down to the fact that when you mention the name of a real and existing organisation in a story you take a risk some rectum with authority within that organisation may perceive what you say as detrimental to the organisation and send a pack of lawyers out to chew on you - in some cases they will do so with the full support of the law, and in some because they think they have the law behind them. Thus you need to be extremely careful when using the name of a real organisation. The only uses that seem to get by with safety is when you mention a retail organisation carrying out their normal day to day trade in a positive manner.

Crumbly Writer

Another item not mentioned, if you're referring to a specific product, make sure you sure the correct name (including capitalization). If you don't, you may be helping the company lose their trademark, just as using "coke" for every soda threatens the "Coca-Cola" brand. Thus, if a company catches you doing so, you're like to get--at the very least--a cease and desist order.

Of course, if you're insulting the brand, then change the name so it's recognizable, but isn't suggesting it's an actual reference to the product. Thus if you're attacking CNN News, you might change it to CNB (Cable News Broadcasting, a different and entirely fictional entity).

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