Advice please

'Is it legal', 'can I do this' type questions and discussions.
Post Reply
littlewhispers
Regular Member
Regular Member
Posts: 28
Joined: Mon Mar 09, 2015 9:06 pm

Advice please

Post by littlewhispers » Sat Oct 10, 2015 10:06 pm

Ive been working on a graphic novel, and Im preparing to get it ready to publish. I have some questions tho

I'm looking into the use of brand products and mentioning and/or featuring them in my comic works. I believe mentioning them is fine, but what about showing a character eating, say, a Galaxy chocolate bar? Or I draw them eating one and offering it to a friend, can I have them say "Fancy a Galaxy bar?" or "Fancy a Twinkie?" Could I have my characters say that they don't want to go eat at a McDonalds? If it doesn't include the logo on a game console, is it fine to draw? This doesn't strike me as a copyright issue, I doubt you can copyright a machine or food, thats why you get knockoffs especially on the latter in mainstream company, but I wanted to ask and be sure, save myself a headache

I know its okay to write about these things but since I'll be using visuals aswell, seems a whole nother kettle of fish.

One site I read said

Use in Fiction

Portraying a logo in a fictional work, be it movie or illustrated novel, would generally not be considered an infringement as long as the use doesn’t confuse the viewer on who owns the logo’s trademark. The use of trademarks in fiction is recognized as a means for enhancing realism in a story, though the movie industry has turned that around by not only seeking permission to use logos, but selling their use to the trademark owners as product placement. Use of a logo in a fictional work that disparages the logo owner can be ruled a trademark infringement, yet use of the logo in connection with a non-fictional work of criticism is fair use.

That is my reason for wanting to draw/write these things in the first place, to add realism to the story. The logos dont bother me, itd be easier to cut them out really that try and replicate them, but I just wanted to make sure just drawing these items, aswell as referring to them in the same scene, would be alright.

I have seen some of these things on stockphoto sites and unless there displaying the logos and tms, they seem okay for use that's non editorial.I imagined itd be fine to draw the actaul objects, just wanted to be sure before going ahead

Is one way around trademarks simply changing the name slightly? Like "Galaxi" or "Gamecobe?"And if I remember right a trademark only holds water in the country its registered? Want to be careful in regards to tarnishment, if I make up some evil corporation for my novels.

Also, from what I understand, you cannot copyright words, titles, etc, even if there made up words? I imagine that's why certain settings, things and places in books, games, movies, etc, can have the same name, but look completely different. If the settings were carbon copies of each other then I imagine that'd be a whole nother story. You can trademark words I know that much, thats why you coudlent have a place called say "Hogwarts" in a book, or a creature called a "Hobbit"

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Post by AndyJ » Sun Oct 11, 2015 7:55 am

Hi littlewhispers,

You should be OK reproducing logos and the names of products in your graphic novels. As far as things like Galaxy bars or fast food goes there is no way that anyone is going to be confused about the source because clearly your novel is not purveying the product, just referencing it, much as I have done in this sentence. While there could technically be a claim of copyright infringement in redrawing the McDonalds logo, or indeed any logo, I think that would be covered by the fair dealing exception for quotation, or alternatively be seen as de minimis (too trivial to bother the courts).

The sort of things I would avoid would be other graphic forms such as comics. Don't have your characters reading a DC comic which features an identifiable superhero. If you need to include something like that, make up a generic comic character.

Using names alone does not infringe copyright, but as you say, a large number of made up names tend to be registered as trade marks. For instance here just one of many registrations for the word 'Hobbit' in the UK and in this instance it covers Class 9 which includes digital images, and Class 16 covering books and printed matter, so your graphic novel would potentially fall into a protected area thus making a trade mark dispute more likely.

The main factor to bear in mind is the track record of the trade mark owner; many are relaxed about usage of the sort you describe, whereas some companies are infamous for the robust way in which they protect their brands, often not worrying so much about the strength of their legal case, but more about sending a strong message. The reason for this is that under US trade mark law, it is much easier to claim trademark dilution as a defence - that is where the name etc of a product has become so generic as to be no longer identified with the actual product (think of Hoover instead of vacuum cleaner, or Aspirin) - and so companies want to deter anything which may lead to dilution.

If you use a reference to a product or company in a disparaging way - the evil corporation you mentioned - it's probably best to stay away from real names. It is now very hard for a company to bring a defamation claim in the UK as they would have show they had suffered substantial financial loss as a result of the act complained of, and so it is unlikely we shall see another McLibel case. But that is not to say that a company which thinks it has been defamed won't bring in the legal big guns and cause you hassle, which you have said you wish to avoid.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

littlewhispers
Regular Member
Regular Member
Posts: 28
Joined: Mon Mar 09, 2015 9:06 pm

Post by littlewhispers » Sun Oct 11, 2015 10:48 am

Ah wonderful. Thank you, that makes things much clearer.

If I were to draw an image including these products, like an art print or a piece of artwork I could sell on an item, would be alright to just draw the products and not include the names or tms in the image?Like a playstation, can of coke, brand name candy, etc. I would think so from what I understand

That makes sense. I mean I could have my character reading a blank comic and say "Im reading Spiderman" or "Batman", but if i actually drew those characters on the pages then yeah, I imagine that would constitute copyright infringement. Talking about things or describing them however your free to do like in regular novels

What about just writing the name of a place/object instead of using the actual logo? Like I dunno, writing the word "New Look" or "Starbucks" on a building but not using there actual font or logos? Same with things like machines, movies, bands or candy. In a non disparging way of course

Regarding tms I only havta worry about names registered in my country, right? Dont wanna be scouring for every name after all making sure Im not accidentally defamating a real company or thing. Is changing the spelling one way of getting around tms also? That seems to be the case and why some company's register every spelling variant

Thank you for helping me, as Ive researched this to the best of my abilities but alot of the sites arent clear, or talk about US law, which is of course diffrent.

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Post by AndyJ » Sun Oct 11, 2015 3:58 pm

Hi whispers,

It's not quite as simple as just not usng the actual trade mark words - there have been plenty of cases where something spelled differently has still led to problems if it can be argued the new word(s) might cause confusuion on the minds of the buying public. But that said, you are on relatively safe ground because it will be clear from the context that you are not selling chocolate bars or soap powder just because your characters may mention a trade name.

And you only need to check on the registered trade marks within the jurisdiction where you live. There can be possible scenarios where an overseas company could try to argue that it has goodwill amongst customers in the UK (say, as a result of online sales) and that might entitle them to bring a claim for passing off (which has some similarities with trade mark infringement), but following recent court case* (pdf) here in the UK, the standard of proof of pre-existing goodwill has been set exceptionally high, so I don't think that is likely to cause you any problems.


* Incidently the name of one of the parties in that court case, Starbucks (HK) Ltd, is great example of one trade mark co-existing alongside another better known one, as in this case the Hong Kong company is a television broadcaster, not the famous brand of high street coffee shops.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

littlewhispers
Regular Member
Regular Member
Posts: 28
Joined: Mon Mar 09, 2015 9:06 pm

Post by littlewhispers » Sun Oct 11, 2015 6:34 pm

Ah, so its no guarantee, but not definite youd get in trouble either way? Sounds about right, from Ive been told, people can sue you whether youve done something wrong or not :P So try not to worry too much I spect. I shouldent think there'd be much issue. I doubt someone reading it would think "Oh poisoned Galaxi bar, must be galaxy like you by in shops" neccesarrly. If it were an issue either way I could easily change it too.

Okay, I think I get the general idea of how it works, thankfully. And luckily I only havta worry about stuff where Im from, so just be careful with big name obvious stuff I should think.

Post Reply