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Uncle Orson's Writing Class
Copyrights
April 1, 2004


Question:

I was wondering the other day about copyrights. Say I wanted to write about a girl going to McDonald's. Would I have to check to see if the word "McDonald's" is copyrighted? Or if I wanted to write about a cat called "Snape" (which is copyrighted by J. K. Rowling now, if you didn't already know) would I have to email her with a special request? "Do I have to check every single word I want to use in a story I'm hoping might get published?"

-- Submitted by Jackie Nguyen

OSC Replies:

Individual words can't be copyrighted. They CAN be trademarked, but contrary to rumor you have no responsibility, as a fiction writer, to respect trademarks - only if you were marketing a product would you have such a responsibility.

McDonald's would have no grounds to sue you for having a character walk into a McDonald's.

They might WANT to sue you if you depicted McDonald's as a purveyor of meat derived from dead human corpses, but it would be tough for them to get past the "poetic license" and "satire" and "humor" restrictions on the libel laws. (If you were writing nonfiction, that is entirely a different matter.)

It gets complicated, though, when it comes to characters and character names. You don't have a right to write a story using any other author's character.

You would probably be all right, though, having a cat named Snape - as long as you made it clear that the cat had been named after a character in a novel by J. K. Rowling. In other words, as long as you give credit, and don't use the actual character (i.e., you are not creating a Harry Potter story or a story set in the Harry Potter universe, but rather are creating a story set in OUR universe in which Harry Potter novels have deeply penetrated the culture), you are probably fine.

As to words that are NOT names, you are free to use them. Writers coin words all the time. I coined xenocide, for instance, and can't now prevent anyone else from using the word however they wish.

And even trademarks can't be protected from fiction writers. If you have your characters share a kleenex or xerox a document, the company that owns those trademarks can scream or yell all they want, but you are merely recording the language as it is used by real people, and they have no grounds or standing to go after you. You are not trying to sell a competing product or create confusion between your product and theirs, and so you are not infringing their trademark. Rather you are asserting the public right-of-way, so to speak - that their trademark has been so successful that it has entered the language as a word.


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