I have two characters I'm establishing backgrounds for in my WIP. As it stands, I list both as employees of Blackwater Security Consulting (BSC). A plausible explanation given these characters are contracted grunts on-station in Afghanistan.
Is mentioning private companies generally avoided in fiction? Especially if I have these fictional employees acting in a manner that may not be reflective of what BSC would say it operates? Should I just invent some company term and throw 'Black' in front of it for safekeeping? IE: Blackstone SC or Blacksand SC?
Does my notice at the beginning ("This is a work of fiction. All persons, events, places, and locales are fictional or used in a fictious manner.") offer some protection?
Posted by Owasm (Member # 8501) on :
I wouldn't use actual company names in a work of fiction. If it was me, I'd make up something that is similar, but not matching or a generic name that has Security Consulting in it. (i.e. Global Security Consulting - check the internet first, however).
That way if your creativity impugns the fictional company, you don't have to worry. By that I mean if their employees (your characters) engage in questionable behavior.
Posted by MAP (Member # 8631) on :
I agree with Owasm.
I think your better off with a fictional company that closely resembles the real life company. That way you don't have to worry about any backlash.
Posted by enigmaticuser (Member # 9398) on :
Just by way of clarification, I sometimes run into this and would like Owasm and MAP make it up, but I wonder if it's in passing/from the outside looking in. Like is there harm in a character saying I stopped at McD's this morning and the employee spit in my hamburger?
I would imagine the latter does not, so perhaps a certain amount of the depth with which you deal with that.
Posted by redux (Member # 9277) on :
From what I've read about the subject as well as how it has been treated in fiction whose authors have not been sued for defamation, it is acceptable to use a trademarked name merely in passing or as scenery. An author starts to run into trouble when the trademarked name is shown in a negative light.
Posted by Rhaythe (Member # 7857) on :
Which is such vague and relative territory that it's impossible to tell you've crossed into it.
In other words - made up company it is. Thanks everyone.
Posted by Robert Nowall (Member # 2764) on :
Is that what the search thingie is for?
Posted by LDWriter2 (Member # 9148) on :
Speaking of making up a name. In a certain comic strip there's a store called Ya'll Mart.
You can buy anything there including a certain size of bullets and talcum powder at the same time.
Posted by extrinsic (Member # 8019) on :
Areas for greatest concern when using trademarks in prose writing are whether the use is incidental or nominal, thus potentially a fair use, and whether use contributes to dimunition of a trademark's uniqueness value. The former is open to broad interpretation and a subject for litigation standing by both complainant and respondent. The latter favors a complainant's standing. While subjective, the dimunition argument has a strong objective basis. Sadly, thee with the deepest pockets too often prevails in either case.
Posted by Rhaythe (Member # 7857) on :
So it's one of those "ounce of prevention" things, then.
Posted by Wannabe (Member # 9510) on :
Don't take this as legal advice, but I don't think a company would have a cause of action. And, if they did, they might not want to do anything on the grounds that they are getting some free advertising. That said, it seems like fair use to me. I don't know why mentioning a company in a book would be functionally different than having company logos and so forth in a film--which happens all the time. For that matter think about some of your favorite shows, e.g. 30 Rock and the like, the characters reference commercial places all the time.
I just don't think a corporation so completely owns the idea of itself that it has en exclusive right to speak about its own existence.
That said, if you make the company look bad in your writing you'd better be prepared to backup what you say. I could see a defamation case arising from that. (Though that doesn't mean a strong case necessarily). But if your character encounters a business in the usual course of the story, and the company itself isn't portrayed antagonistically or (more to the point) falsely, I doubt there would be a problem. Most likely you could get an action against you tossed out on the grounds that it's frivolous and the plaintiff failed to state a valid cause of action.
That said, none of that is to be construed as legal advice.
Posted by Wannabe (Member # 9510) on :
Possible trademark infringement would be the other potential factor but protecting a trademark to the point where only the company itself can mention the name of the company would be an incredibly wide interpretation. Certainly I haven't personally seen any cases on WestLaw that have created a precedent for that but that doesn't mean they aren't there, or that there couldn't be a first time. But I would find it very surprising, personally.
Posted by Wannabe (Member # 9510) on :
Addendum regarding defamation: One argument that would be conceivably strong, through perhaps unconventional, is that since corporations are legally "people", a high-profile corporation is a "public figure" and therefore you'd probably have to be held to an actual malice standard, and not negligence, in a defamation action.
Translation: you probably would not lose such a case because that's a very heavy burden on the plaintiff.
Think about the uses that already exist in the media, people write exposes on their own companies after being discharged or quitting, the Da Vinci Code made the Catholic Church look bad, Radio Talking Heads bad mouth investment banks and corporations, by specific name, all the time.
Posted by extrinsic (Member # 8019) on :
quote:Originally posted by Rhaythe: So it's one of those "ounce of prevention" things, then.
Yes. The dimunition of value argument became a cautionary tale for Xerox in the mid '60s when xerox became a generic term for photocopying. Some companies zealously guard their trademarks so they can license them to third parties, for example, Droid. Spike, to name recent ones.
My pockets are so shallow I couldn't give an ant a bath. If -- if I develop a product that goes ballistic, I don't want to spend my fortune on tedious, frustrating, costly litigation. All a complainant needs is standing to sue. A dimunition of value claim is enough.
Posted by Wannabe (Member # 9510) on :
I want to say the Google has tried to fight action on those grounds (disliking the use of googling as a verb) but haven't really had any success (though I have not researched this at all, only heard rumors).
But that's a rare case. Saying "Mike works for McDonalds and like quarterpounders with cheese" is not the same thing as "Mike McDonalded with his favorite food." Which, even then, is a stretch to claim diminution.
IMO I think there is a tendency in our culture, and here, to be unnecessarily cautious and chill our speech for fear of reprisals that have little to no chance of being actioned in court.
Posted by Merlion-Emrys (Member # 7912) on :
I think that a mention or reference is one thing but a company or its fictitious employees actually being a major part of a story is potentially another. Probably still unlikely to lead to anything, but if you are writing a story wherein a company or store or employees thereof are a major focus of the plot and events it's probably wise to invent a name. As has been mentioned, there are plenty of things including very thinly veiled references too and uses of various brand names and such and while no one is a bigger proponent of artistic integrity than me I think doing such still conveys exactly the meaning you want it to.
Posted by extrinsic (Member # 8019) on :
I feel a larger artistic consideration is whether listing a real-world company name is doing the job. Name Walmart and that's it? Sounds to me like recital, naming exposition, the dreaded tell. Show the store and let readers' imaginations name it; that's an artist's job.
Inventing a name or a comparable one or maybe even using a genuine artifact runs a risk of disrupting readers' engagement with a narrative's imitated world, if the name calls undue attention to itself.
Using a real-world name does have a power of verisimilitude. As a writing principle, name branding is a time honored and artful writing principle for marking status, marking setting's several features of time, place, and situation, and marking relative or absolute location.
Relative location in the sense, for example, the Walmart could be any Walmart anywhere, and readers associate theirs with the one in a narrative and contribute their creative vision to the narrative. Stock archetypes aren't solely characters, some artfully used soar, some artlessly used become trite. If readers' expectations aren't unduly disturbed then for all intents and purposes it is the one they know.
Absolute location in the sense the Walmart definitely isn't the one readers know and due to its specificty is artfully exotic, or it definitely is the one readers know. The former isn't necessarily a concern. The latter is if a narrative depends on reader familiarity with a regional idiom, so to speak. (They call the one hereabouts Walleye World: repetition, substitution, and amplification; renaming enhances voice. [Walleye meaning eyes of different iris colors, e.g., one blue, one brown.]) If so, then the audience might be unecessarily limited to those Walmart patrons.
One other principle that might be of concern, specificity. Using a generic place's name generically tends to lie flat on a page, one dimensional like if not a mere point without dimension. Say a narrative portrays a real-world place in an unfavorable light, but it's portrayed specific to persons, specific to a setting's time, place, and situation, and specific to an attitude. That's the way I see trademarks most artfully used and with the least amount of risk exposure. It's not an insult to the whole, not common place, so not likely offensive nor interfering with a trademark's value. Though think twice or more about using "droid" in a work of entertainment.
[ January 27, 2012, 01:02 AM: Message edited by: extrinsic ]
Posted by babooher (Member # 8617) on :
To build a bit on what extrinsic wrote, by using a name like Walmart the author gives up some control. Walmart IS Walmart, but Worldmart...well, we sell everything in the world at Worldmart and even some things out of this world.
If it isn't that important, why drop a name to begin it?
If it is that important, is giving up the control of exactly what the business is worth it?