Copyright infringement question

[Steve]

---  "Carol" <justcarol67 at ...> wrote:
>
> I'm moving this post from the main list because I want to 
> expand the topic beyond the Hp books, fanfic, and JKR.
> 
> ---  Bart Lidofsky <bartl@> 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.
> ...
> > 
> > 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. ...
> 
> 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). 

bboyminn:

Just my opinion, but I don't think you are violating a
trademark or copyright by mentioning a brand name in a
story.

Consider a recent Stephen King book in which one character 
comments about 'the most popular book in history', and 
another character replies 'Harry Potter?'. I think that is
a fair and reasonable social commentary which is allowed.

In the example of Sherlock Holmes, one character in a book
could say something to the effect that 'this is a case for
Sherlock Holmes', meaning this is a difficult case that is
going to take a brilliant mind to solve. Sherlock Holmes
becomes a cultural reference.

Now if you have your own characters and one of them is a boy
wizard named Harry Potter and another is a detective named
Sherlock Holmes, your pressing your luck.

As far as trademark, you can have a character mention 'Mars
Bars' and not get into trouble, but you can't market your
own candy bar and call them 'Mars Bars' or anything that
smacks of 'Mars Bars'. For example, you couldn't market a new
candy bar similar to Mars Bars and call them Martian Bars or 
Marz Bars, that's just too close. 

You can mention a trademark, but you can not create a new
product with the same or a similar name. 

Now I suspect if you use a product name, say McDonald's, in
a way that defames the company or is slanderous, then they
might have a case against you, but not for copyright or
trademark infringement. A recent book which was also 
made into a movie, though I don't recall the name, in which,
under the supervison of a doctor, a man tried to eat nothing 
but McDonald's for 30 days. His health became so bad that
the doctors forces him to stop before he reached the end
of the 30 days.

So far, no law suites that I am aware of. 

As to your case where a person has a story that is similar
to reality, but with name changes to protect the guilty,
and slight changes in characters, let me remind of the
popular TV series 'Law and Order' where virtually every
story is ripped from the headlines. Again, they start with
a disclaimer, and change the story enough to call it fiction,
and they get away with it week after week. To my knowledge
they have only been sued once, and I think it was by a
politician. Still that show has been on the air for MANY
years.

I think when the context is consider, all the things you
mention can be considered fair use. 

Steve/bboyminn