What is allowed.

[mwilliams1081]

I think fiction that incorporates real places and events are much more accessable than stuff that takes place in complete abstraction. Dan Brown's , Hitchcock's movies etc were all more believable because the places were real.

What's OK as far as mentioning real places, events, artistic expressions, etc..

Can I mention the Empire State Building, Tavern on the Green, The Schubert theater, or The Guggenheim?

Can a couple go see Miss Saigon or watch Cassablanca on PPV. If you talk about a restaurant on the 101st floor of the World Trade Center is that more acceptable than Windows on the World.

What about The Yankees or Yankee Stadium. The Giants or The Meadowlands. or the World series. How about Universities like Notre Dame or Cambridge.

If not how abstract do I have to get. Do I have to sound like an act of Congress? "A corporation based in Seattle that sells airplanes and has gross sales of between...."

What's allowed here or in publishing in general.

Thanks

 

[sr71plt]

Yes, you can do all of that--both here and in the marketplace. I do it all the time. Almost always try to have some real-life grounding to my stories.

 

[mwilliams1081]

I'm not sure that's right

Have you noticed all the beer companies stopped using 'Superbowl' in their commercials? Its now 'The Big Game'. Sports leagues and franchises are over the top about protecting their name/image.

There was a guy who copyrighted the name Harbaugh Bowl just in case the 2 coaches ever met and when they did it cost him 10s of thousands of dollars in lawyers just to surrender the name to the NFL.

I'd guess that most businesses would think twice about wanting to appear in an erotic work. I'd like a second opinion. Maybe from a lawyer if there's one out there.

 

[Derroreaper]

So do an internet search

You can say, "I got in my Volkswagen Passat and drove to my girls place so I could fuck her and then kill her."

But you can't say, "I got in my Volkswagen Passat and it blew up because it has a defective fuel pump due to poor engineering."

You can't attack a brand name without some proof, but you have every right to tell your story in a factual manor.

 

[sr71plt]

There was a guy who copyrighted the name Harbaugh Bowl

You can't copyright a name. Think you mean trademarked (which isn't easy to do; you have to establish it's already of commercial value to you).

 

[PennLady]

Have you noticed all the beer companies stopped using 'Superbowl' in their commercials? Its now 'The Big Game'. Sports leagues and franchises are over the top about protecting their name/image.

There was a guy who copyrighted the name Harbaugh Bowl just in case the 2 coaches ever met and when they did it cost him 10s of thousands of dollars in lawyers just to surrender the name to the NFL.

I'd guess that most businesses would think twice about wanting to appear in an erotic work. I'd like a second opinion. Maybe from a lawyer if there's one out there.

You're right, "Super Bowl" is a name that has been trademarked. However, I'm not sure it works that way with, say, a sports franchise. I read a book by Luann Rice (a national best-selling author) that had a fictional player from the Boston Bruins as a main character, and there were his teammates. She mentioned other teams and (fictional) players in the NHL as well. So you can do that.

 

[sr71plt]

You can use trademarked names in writing. You just have to spell them as trademarked--and if you use them in a negative connotation that the trademark owner can demonstrate maliciously--without foundation--took money out of his/her pocket in the use of them, you can be successfully sued for the infringement.

 

[mwilliams1081]

NFL goes after trademarks

Here is a link to the Harbowl story:

http://espn.go.com/nfl/playoffs/2012/story/_/id/8873809/2013-nfl-playoffs-nfl-pressures-fan-nix-harbowl-trademark

 

[emap]

Basic rule of thumb is if you are not doing anything offensive with a trademarked location or business you can include it so long as there is note of it, basically the name of the place being copywrited and by whom. There is a reason you can find stories featuring like above a guy who plays for the Boston Bruins, but doesn't actually.

It's harder to include an actual person unless you only do something like 'then we meet Joe Montana and get his autograph'. It's no problem to do that, now if you instead do like say in Wayne's World when Alice Cooper talks about the history of Milwaukee I think it was looking like a major geek the only way to get away with that is to ask the person for permission. Fairly sure they got permission since he was in the movie but you know what I mean.

Now going back to the anything offensive part. As was said earlier, saying a specific car is a piece of shit you can't get away with that. Team orgies in the locker room even if it's entirely not actually the players probably won't be allowed. Well let me rephrase, the team probably will try and have it removed.

Same reason there are no celebrity rape stories unless you happen to write about a celebrity who was actually raped. Course if you do that it better be truely horrible and what happened or this person will enact act of god level legal crap on you.

Basically, mentioning a famous building or business of any sort is fine, so long as it is not degrading to the business, usually this includes things like gang bangs and rapes. Two workers getting busy after hours on the other hand they can't say anything because they probably do in any one location.

 

[elfin_odalisque]

I think fiction that incorporates real places and events are much more accessable than stuff that takes place in complete abstraction. Dan Brown's , Hitchcock's movies etc were all more believable because the places were real.

What's OK as far as mentioning real places, events, artistic expressions, etc..

Can I mention the Empire State Building, Tavern on the Green, The Schubert theater, or The Guggenheim?

Can a couple go see Miss Saigon or watch Cassablanca on PPV. If you talk about a restaurant on the 101st floor of the World Trade Center is that more acceptable than Windows on the World.

What about The Yankees or Yankee Stadium. The Giants or The Meadowlands. or the World series. How about Universities like Notre Dame or Cambridge.

If not how abstract do I have to get. Do I have to sound like an act of Congress? "A corporation based in Seattle that sells airplanes and has gross sales of between...."

What's allowed here or in publishing in general.

Thanks

sr is 100% right. No whys or whatifs. Derro, if you said the car blew up because of a manufacturing fault, you're fine - just avoid talking about things like engineering faults the protag can't have knowledge of.

Trademarks simply protect the intellectual property of the owner which is why I can write, "I filled up at the Shell station" but not open a 'Shell' garage without a franchise.

Trademark owners make a fortune franchising the intellectual property of their mark. If beer companies buy Super bowl ad space, they don't buy the right to associate their product with the trademark.

Harlan Coben made megabucks with a thriller based on Boston Celtics NBA team and Boston Garden - fact and fiction. 'Play Dead'.

The overriding concern is to avoid a "likelihood of confusion".

Just an aside; Coca Cola's first translation into mandarin Chinese translated as "bite the wax tadpole". They soon found a franchisee.

 

[Bramblethorn]

Now going back to the anything offensive part. As was said earlier, saying a specific car is a piece of shit you can't get away with that. Team orgies in the locker room even if it's entirely not actually the players probably won't be allowed. Well let me rephrase, the team probably will try and have it removed.

Same reason there are no celebrity rape stories

Not true. Under US law there is a very clearly-established legal right to publish fictional material that's offensive to public figures, even if it's maliciously and hurtfully so, as long as it's identifiable as fiction. See Hustler v Falwell, which is cited in the Celeb section.

Lit seems to have decided they're not going to allow celebrity rape stories, which is their prerogative, but it's not because of any legal prohibition against offending celebrities.

 

[sr71plt]

Basic rule of thumb is if you are not doing anything offensive with a trademarked location or business you can include it so long as there is note of it, basically the name of the place being copywrited and by whom. There is a reason you can find stories featuring like above a guy who plays for the

No. First, trademark and copyright are two different things.

Second, you don't have to make note of it anywhere. All you have to do is spell it as trademarked.

Third, as Bramble notes, you have a whole lot of leeway in how you can use it. Yes, you might get sued, which is a determination in whether you want to get into it, but getting sued and losing the suit are two different things. If you can get it pushed under the parody provisions, you have a lot of leeway. And the laws in this are different for copyright and trademark.

 

[elfin_odalisque]

No. First, trademark and copyright are two different things.

Second, you don't have to make note of it anywhere. All you have to do is spell it as trademarked.

Third, as Bramble notes, you have a whole lot of leeway in how you can use it. Yes, you might get sued, which is a determination in whether you want to get into it, but getting sued and losing the suit are two different things. If you can get it pushed under the parody provisions, you have a lot of leeway. And the laws in this are different for copyright and trademark.

Yes,yes but you don't have to spell TM as you do 'copyright'.

Trademark legal cases usually rest on "the likelihood of confusion" which is poles apart from copyright.

This site skirts a narrow line between parody and trademark infringement.

Even so, this was not what the OP asked.

 

[sr71plt]

You haven't had to give the copyright mark since the United States signed the Berne Convention twenty-five years ago. In fact, the 1988 law ratifying the convention makes it illegal for you to use the copyright mark unless you actually hold formal copyright. (Something to think about here.)

I wasn't responding to the OP.

What the web site determines is acceptable here doesn't have to hinge on copyright, trademark, or anything else. They can ban anything with the word "the" in it if they want.

Any other miscues you want to make, Elfin?

 

[Bramblethorn]

Trademark legal cases usually rest on "the likelihood of confusion" which is poles apart from copyright.

This site skirts a narrow line between parody and trademark infringement.

Lit, close to trademark infringement? Where is the "likelihood of confusion"? (Other than in me trying to understand this claim.)

 

[lovecraft68]

Not true. Under US law there is a very clearly-established legal right to publish fictional material that's offensive to public figures, even if it's maliciously and hurtfully so, as long as it's identifiable as fiction. See Hustler v Falwell, which is cited in the Celeb section.

Lit seems to have decided they're not going to allow celebrity rape stories, which is their prerogative, but it's not because of any legal prohibition against offending celebrities.

Lit has a rule on rape in general meaning the celeb portion is just an extension of it.

But I have noticed hardly any celeb rape slips through. DC Comics is hardcore with the mistreatment of their "people" and there was a slew of rejections a year or so involving them.

As for the rest of rape stories? Well, hey, see the non con section

 

[elfin_odalisque]

Lit, close to trademark infringement? Where is the "likelihood of confusion"? (Other than in me trying to understand this claim.)

Stories that feature trademarked 'Celebs' or even TV characters in what the TM owners could argue are activities detrimental to the mark are technically actionable against the trademark.

The Jerry Falwell case had nothing to do with TM. The case was libel and intentional infliction of emotional distress. Falwell had not trademarked his name and the parody verdict was understandable.

Generally, TM's tolerate fan fiction (especially if positive) because it's publicity and there is little reason to spend money swatting a penniless flea with limited reach.

But, please, 'parody' is no argument in trademark law.

Yes, Lit is close to TM infringement but are Paris Hilton, the Muppets, et al going to raise the issue publicly if a financial interest isn't involved?

I'm an opponent of the soviet effect of TM laws. The real argument is against the bullying of corporations of State and Federal legislators. An election donation goes a long way.

BTW Bramblethorn, more than 90% of stories posted to Celebs are technically actionable under TM law.

 

[Bramblethorn]

But, please, 'parody' is no argument in trademark law.

A legal firm specialising in intellectual property law says: "Parody is a defense to trademark infringement. The theory behind it is that there is no likelihood of confusion because a parody will not be taken seriously."

Harvard Law School says: "Defendants in a trademark infringement or dilution claim can assert basically two types of affirmative defense: fair use or parody... certain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection... In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark."

That site also includes some material on "nominative use", which is relevant to a lot of the trademark use in Lit.

Elfin, why do you keep making these pronouncements on subjects that you clearly aren't informed about? I really don't get it. If you want to look clever, at least do yourself a favour and google it before posting your half-assed guesses as 'fact'. Five seconds searching on "parody trademark" would have shown you how misguided your statement was here.

Yes, Lit is close to TM infringement but are Paris Hilton, the Muppets, et al going to raise the issue publicly if a financial interest isn't involved?

Trademark owners are notoriously litigious - even against quite minor infringements - because if you don't actively defend your TMs you risk losing them.

BTW Bramblethorn, more than 90% of stories posted to Celebs are technically actionable under TM law.

[citation needed]

 

[sr71plt]

Elfin, why do you keep making these pronouncements on subjects that you clearly aren't informed about? I really don't get it. If you want to look clever, at least do yourself a favour and google it before posting your half-assed guesses as 'fact'.

Hallelujah. This certainly is worth lifting up and repeating (not that Elfin will get it).

 

[PacoFear]

Folks,

We go over this issue on a semi-annual basis and it gives some of us a headache.

The relevant trademark infringement concept in this context, meaning smut-writing, is called "trademark tarnishment." Look it up. It's a variation of "trademark dilution." There is a federal statute for it and everything and it's called, ironically enough, the Federal Trademark Dilution Act. For the fellow legal monkeys, it's 15 USC § 1225. It was revised in '06 when the Supremes pissed Congress off and now it's easier to prove.

TO BE CLEAR: "LIKELIHOOD OF CONFUSION" IS IRRELEVANT. A writer who uses a trademarked name in his smutty work is not selling competing goods and therefore is incapable of confusing consumers in the marketplace as to whose goods are being purchased. What the writer IS doing is reducing the value of the trademark by associating it with something unseemly. Like smut. In fact, just about ALL of these cases that get reported are about smut purveyors trying to freeride on the hard work of a trademark owner.

Writing porn isn't fair use or parody or satire because we're not reporting on trademarked subject matter or poking fun at trademarked subject matter or making social commentary. We are manufacturing obscenity. Hopefully, it's well-crafted, but it's still obscenity.

Bottom line? Hustler v. Falwell isn't directly on point for what we do here, and even if it could be argued, neither Literotica nor an average individual author here has the money to litigate the case far enough to present the legal question to a district court, much less an appellate one. Besides, who the hell wants their REAL name made publicly available on a federal court's docket that includes a copy of all of your Literotica postings attached to the complaint? Most of us, not so much.

I suggest you read this if you want more; it needs a little updating but this gal has a decent bead on things: Trademark Tarnishment: Trademark Law's Dirty Little Secret.

 

[Bramblethorn]

The relevant trademark infringement concept in this context, meaning smut-writing, is called "trademark tarnishment." Look it up. It's a variation of "trademark dilution." There is a federal statute for it and everything and it's called, ironically enough, the Federal Trademark Dilution Act. For the fellow legal monkeys, it's 15 USC § 1225. It was revised in '06 when the Supremes pissed Congress off and now it's easier to prove.

I love it when people provide cites. It means I learn something. Thank you

TO BE CLEAR: "LIKELIHOOD OF CONFUSION" IS IRRELEVANT. A writer who uses a trademarked name in his smutty work is not selling competing goods and therefore is incapable of confusing consumers in the marketplace as to whose goods are being purchased. What the writer IS doing is reducing the value of the trademark by associating it with something unseemly. Like smut. In fact, just about ALL of these cases that get reported are about smut purveyors trying to freeride on the hard work of a trademark owner.

Writing porn isn't fair use or parody or satire because we're not reporting on trademarked subject matter or poking fun at trademarked subject matter or making social commentary. We are manufacturing obscenity. Hopefully, it's well-crafted, but it's still obscenity.

Nitpick: stories can be about more than one thing. The smut I've been posting on Lit for the last year has a very large chunk of social commentary. So far I haven't directed that at trademarked entities, but I could easily envision (say) a story about a same-sex relationship between Chick-Fil-A employees being used to make a comment about CFA's political activities.

(Compare to Bret Easton Ellis' "American Psycho", which went out of its way to name-check expensive brands in an extremely unflattering context because it was making a statement about materialism. AFAIK none of the brand owners tried to fight the matter, so I'm assuming their lawyers decided it wasn't a winnable case.)

But I agree that most use of trademarked entities here isn't for purposes of commentary. OTOH, it looks to me as if most if not all of what the OP asks about would fall under "nominative use", which you didn't mention among the types of fair use above.

The cases of "trademark tarnishment" listed in the cited article involve businesses who are deliberately trading under a similar name to the trademark owner ("Victor's Little Secret", "V. Secret Catalogue"), and/or picking up the look and feel of the original ("Barbie's Playpen" with similar font to that used by Mattel, facsimile Dallas Cowboys cheerleader uniform etc). Clearly none of those are simple nominative use; as you've said, these are people deliberately trying to get a free ride off the work that the trademark owner has done to build up their trademark.

So it seems to me there's still a big difference between a Lit story mentioning that one of the characters went to a Yankees game or to see Miss Saigon, and the sort of cases that have been recognised as "trademark tarnishment". But I'm not a lawyer (although it runs in the family) and if it won't exacerbate your headache, I'm interested in hearing more on this.

 

[sr71plt]

Before anyone goes too far into what can be litigated on this, I suggest they post from what actually has been litigated concerning porn stories posted to free-use Web sites in fake names. That will pretty quickly whittle the noise in the room down to silence.

 

[elfin_odalisque]

Before anyone goes too far into what can be litigated on this, I suggest they post from what actually has been litigated concerning porn stories posted to free-use Web sites in fake names. That will pretty quickly whittle the noise in the room down to silence.

Good point, but what large corporations would go against 'men of straw' unless they saw a major threat?

 

[Bramblethorn]

Good point, but what large corporations would go against 'men of straw' unless they saw a major threat?

Disney, for one.

Allowing trademark violation to go unchallenged IS a major threat. Even if the culprit doesn't have enough money to pay your lawyers, if you don't police a TM then you risk losing it altogether.