The Writing Zone: Stage 3
One of my favorite genres in the world of books is alternate history, or counterfactural history, depending on who you talk to about it. For those new to the idea, the "alternate history" genre revolves around the concept of taking an event in history, whether it is significant or minor, and extrapolating what happens when that event occurs differently.
A common example: We all know that in the American Civil War, the Confederate States of America lost to the United States of America in 1865. What if, instead, the south won the Civil War instead of the north? Though this concept will be explored in an upcoming HBO series, exploring the possible answer to that question is nothing new - one of the more popular explorations into this idea was done by Harry Turtledove, renowned American author of the Southern Victory book series, which started with How Few Remain. There are countless moments in our world history that, if they occurred differently, our world could be very different from the one we inhabit today - which is why I enjoy reading alternate history as much as I do.
This brings me to the core of what I wanted to talk about today. When you're writing a novel that occurs in our world - whether it's historical fiction, science fiction, mystery, or adventure - the odds are good that you may have the need to reference real-world individuals or real businesses in one form or another. We writers are in the business of creating characters to populate our worlds; locales to visit, fight wars at, or make love in; and businesses that sell products our characters buy or try to bring down because they are manufacturing the very virus that they sell the cure for.
But are there situations where it would make sense to utilize real-world people or businesses? Absolutely... but if you go down that road, it pays to understand your legal rights as a writer. Okay, I know, talking about law isn't the most interesting subject, but hear me out!
With my science fiction novel, I am referencing real-world individuals and businesses. In most cases it's for flavor and adding that extra splash of realism that I feel enhances some scenes. In a few other cases, real-world characters are given their own lines of dialogue as they interact with my fictional characters. When you are writing, where do you draw the line between what can be written and what could put you in hot water?
New York attorney Mark Fowler wrote an excellent blog post several years ago on the subject, as I was curious to learn very early into structuring my novel, knowing that I would want to reference people and businesses that exist today. Though his post focused on product brands (ex: Coca-Cola, Nintendo, Toyota), similar legal awareness should be applied for people, too, whether they are your next-door neighbor or a celebrity.
Regarding brand names (company names, product names), Fowler recommends understanding these areas of law:
- Trademark Infringement,
- Trademark Dilution,
- Defamation,
- Trademark Tarnishment, and
- Libel
Trademark infringement is the unauthorized use of a name that could lead to confusion regarding the origins of a good or service. For example, if I sold go-karts that I called Toyota's, the Japanese car company of the same name could sue me for infringement, specifically because go-karts are similar enough to cars in their overall design. To that end, Fowler points out that there are very few cases against authors for infringement.
Trademark dilution, however, is something that can occur when writing, though the solution for it is very simple. In summary, dilution is when you use a brand name in a way that would make it less distinctive. Famous examples of this are the terms "xeroxing" and "googling" - terms millions of people have personally used in casual conversation, but drives Xerox and Google crazy because it turns their company names into generic terms and ideas. If this is caught in your written work, you could receive a reprimand from the business in question. Therefore, the best way to tackle this issue proactively is to simply capitalize the names of said businesses when mentioned in this way.
Defamation is falsely depicting a business, brand name, or person in a negative or offensive light that could result in harming their reputation. If you are looking to create a character or corporation that has malicious intent (go back to my "business sells cure for a virus it created" example) and you feel that they would be better served if they were a real-world entity - just don't do it.
Similarly, trademark tarnishment is falsely depicting a trademark in a negative or offensive light. Much of what I wrote above regarding defamation applies here as well.
“Persisting in a charge which one does not know to be true, is simply malicious slander.”
Now, the final area I wanted to cover was the issue of libel, which was talked about at great length by Fowler here. Fowler states that libel "requires a false and defamatory statement of fact 'of and concerning' an identifiable living person (or business entity)." Therefore, if the real-world person that you are depicting are doing something they would normally do in real life (not false) and are not behaving in a way that would be considered offensive or crude (not defamatory), you cannot be sued for libel.
Writing is a time-consuming profession where the last thing most writers may think about as they write is whether or not the character they are fleshing out could resemble someone close enough that they could be brought to court or receive a threatening letter in the mail from a lawyer after your book is published. If your work consists entirely of fictional characters - maybe your book takes place thousands of years in the future or centuries ago, or takes place on an entirely different planet - then you have nothing to worry about. If you plan on incorporating Microsoft and Apple into your book about anthropomorphic corporations, then you'll have to be more mindful about how you depict your work.
In the end, you shouldn't let all of this get into your head to the point of hobbling your creativity. These issues are uncommon at worst, and the odds of you being affected by them are even more unlikely. Enjoy crafting your fiction, but just know that the law, like with all careers, is ever-present in the background.
