Copyright, Trademark and the Writer

I'm torn between subjects to discuss today. I have Google on one hand and Harlequin on the other. I think I'll start with Google because of a conversation going on right now in one of the writers' loops I belong to. We'll address Harlequin and corporate profits (or the lack thereof) tomorrow.

I don't remember how the discussion on the loop started. I think it began when someone said that her writing was fueled by the song lyrics that she used to introduce each chapter. Someone else jumped in and pointed out that using lyrics was copyright infringement. Other writers joined the fray and said among other things:

**You can't use song titles or lyrics without infringing copyright
**You can use names of restaurants and other places without infringing copyright
**You can use anything you want as long as you only use snippets and not the whole

All three of the above statement are wrong.

Let's go over copyright and trademark again.

You can't use song titles or lyrics without infringing copyright: Wrong. Names and titles cannot be copyrighted. Think of how many times you've seen the same name on different books. That means that you can use a song title without fear of being sued. However, the lyrics of a song ARE copyrighted. You must get permission to use lyrics in your manuscript.

You can use names of restaurants and other places without infringing copyright: This one is wrong, but sneaky. As I said above, names cannot be copyrighted. However, they CAN be trademarked, and you need to be careful about messing with someone's trademark. If you are making a casual (neutral) reference to a trademark and using it correctly, you're all right. However, if you are making a negative or incorrect reference to the trademark, you do so at your own peril.

Examples:

Neutral/casual: "We drove past Burger King on the way to the game."
Positive: "Jack loved Big Macs and ate one every day for lunch."
Negative: "The poisoned beef was used to make the tacos and burritos at Taco Bell. Ten people died."
Incorrect Use of trademark: "I grabbed a kleenix on the way out of the house."
Correct Use of trademark: "I grabbed a Kleenix tissue on the way out of the house."

Kleenix is a trademarked name. You CANNOT use it as a noun. In the correct use example, I capitalized it and added the noun, showing that I was referring to a specific brand of tissue. Alternatively, the incorrect example could be made correct by simply replacing the word "kleenix" with "tissue."

Other trademarked names often used incorrectly include Coke, Crayola, Polaroid and Xerox. The companies would be within their rights to protest your saying, "I grabbed a coke" or "I xeroxed the list."

Occasionally, over time, the owner of the trademark becomes so dominant that the public simply uses that name to refer to all makes of that type product. In these cases, the original trademark becomes diluted and no longer proprietary. The original owner of the trademark would have trouble pursuing a claim in court. Examples include Allen wrench, bikini, cola (once part of Coca-Cola) and laundromat.

Companies tend to be very protective of their trademarked names and will actively pursue any attempts to turn their product into either a noun or a verb. This brings me to the second reason for the post today.

On August 18th, I did a post titled "Hey, Google, Lighten Up." I'd seen an article in CNET News explaining that Google "intends to crack down on the use of its name as a generic verb, in phrases such as 'to google someone.'" The company is concerned that such phrases are "potentially damaging to its brand."

Yesterday's edition of MediaPost's SearchInsider had another article about Google. Referring to a post on Google's official blog, Gord Hotchkiss says:

[I]t's not the fact that we Google on Google that causes the Google legal department to have hissy fits. It's if we try Googling on Yahoo and MSN. It can't be done . . . To quote the post:

"You can only 'Google' on the Google search engine. If you absolutely must use one of our competitors, please feel free to 'search' on Yahoo or any other search engine."

Hmmm..people are using the word 'Google' to refer to Google's competitors, and it's Google that's upset? Unless I'm missing something here, shouldn't it be Yahoo and MSN that should be miffed?

Gord's reaction is exactly the same one I had back in August. I said at that time that I believed what Google will gain in this endeavor will be far outweighed by the negative response to its behaving like a Name Nazi in going after unapproved uses of the corporate brand. Especially for a company that prides itself on "doing no evil."

You can use anything you want as long as you only use snippets and not the whole. Wrong. The person espousing this view believed that because he was writing a non-fiction book for educational purposes and quoting only snippets, he was safe under the U.S. copyright law's Fair Use provision. He was blending bits and pieces of the law to come up with the wrong interpretation.

To explain this, I'm going to quote directly from the U.S. Copyright Office:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1] the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2] the nature of the copyrighted work;

3] amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4] the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

As you can see from reading the above, if your book is being sold for commercial purposes, whether it is non-fiction or fiction and whether you use snippets or not, Fair Use will not apply UNLESS you are using it for the specific purposes listed. Just being educational is not enough. It must be non-profit educational.

Now, for practical purposes, it's unlikely that if you used one line of a song, the copyright owner will come after you. However, they would be within their rights if they chose to do so. And, if your book ends up like The DaVinci Code making millions, I'll bet that copyright owner will decide to pursue a claim. Look at the two lawsuits that Dan Brown had to defend against.

Don't take chances messing with copyrights. Ask permission.

Anyway, I hope this post helped explain some of the issues. For more on copyright, see my blogs from March 31 to April 11, 2006. I did a series of blogs called Copyright 101.

Also, the U.S. Copyright Office has a dynamite website at www.copyright.gov.