Copyright infringement question

[Carol]

I'm moving this post from the main list because I want to expand the
topic beyond the Hp books, fanfic, and JKR.

--- In HPforGrownups at yahoogroups.com, Bart Lidofsky <bartl at ...> wrote:

> Bart:
> Here's an excellent site on the subject:
> http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=522
> 
> Note that there are also trademarks in play; for example, the
Sherlock Holmes stories are all in the public domain, but the
character is still trademarked, so if you tried to create derivative
fiction, you may find yourself under lawsuit for trademark violation.
Even JKR is not immune; when GOF was made in the media that must not
be named, she was the recipient of a lawsuit from a band called "The
Wyrd Sisters", whose name was trademarked, and did not want another
band with the same name appearing in GOF.
> 
> I don't have a list of precisely what is trademarked out of the HP
series, but with the Harry Potter merchandise, you can be sure it's a
 good portion of it. I'm trying to find a source, but I believe that
the Lexicon lawsuit involves trademarks as well as copyrights.

Carol responds:

My specific concern is not with fanfic but with the use of trademarks
and the names of celebrities in the manuscripts of novels intended for
publication. My novice authors, for example, have their characters
eating, for example, Big Macs, or wearing specified brands of clothing
to mark their good taste and wealth (or lack of either). One recent
manuscript contained a scene in which a Sears store cheated its
customers. (I suggested either omitting the scene, changing the store
name to an imaginary one, or consulting a permissions editor or lawyer
because it seemed to me that the writer was risking a lawsuit, not for
copyright infringement but for libel.)

I understand fair use with regard to quotations, having written plenty
of literary criticism, but the pervasive use of trademarks and
references to actual people in recent fiction has me confused. Please
don't answer unless you're well-informed on the question. (U.S law
would be the most pertinent.)

Can an author create an imaginary, unnamed mayor of New York living at
a specific time (pos-9/11) who's involved in a scandalous love affair
without defaming recent or current New York mayors? (I'm thinking of
Rudy Giuliani as I don't know the current mayor's name.) Again, the
writer seems to me to be risking a lawsuit for defamation of character
or libel. At least, the unnamed character should be a councilman (or
whatever), someone less identifiable than the mayor, or so it seems to me.

What about casual, neutral references to specific products that could
be read as endorsements of those products? What about references to
"the latest Tom Cruise movie"? Is a celebrity's name public property,
or is it protected in the same way that, say, song lyrics are?

And here's a hypothetical question, since it hasn't happened yet in
the books I edit. Could one character say to another, "Who do you
think you are, Severus Snape?" or "He's as creepy as Mad-Eye Moody"?

Carol, thanking Bart for the link but needing additional information
for her own clients