# Can I mention a superhero in my book?



## JezStrider (Jun 19, 2012)

So in one part of my WIP, a boy is getting his face painted. Is it okay to say he's getting it painted like the Hulk, Spiderman, etc.? I'm assuming it's fine, but I wanted to make sure and I can't find anything online.


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## R. M. Reed (Nov 11, 2009)

Just a mention should be fine. Use the official spelling, Spider-Man is spelled as I have here.


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## David Adams (Jan 2, 2012)

By the letter of the law, probably not, but as long as you're not attempting to defame the "brand" you're using you should be fine. Characters in my books have iPhones and Androids, and while I rarely give brand names to the villains one does drive a Hyundai. I figure I'm safe in this because I also drive a Hyundai.


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## Vaalingrade (Feb 19, 2013)

If you can't Jerry Seinfeld has some 'splaining to do.


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## JezStrider (Jun 19, 2012)

I haven't worried about throwing brand names in before, but for some reason the superhero thing made me nervous! It's a brief mention.

Thanks R.M., David, and Vaalingrade!


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## Zelah Meyer (Jun 15, 2011)

I have a vague niggling memory that even the term 'super hero' is trademarked. - Just googled it, yep: http://robot6.comicbookresources.com/2013/04/in-fight-over-super-hero-trademark-its-david-vs-goliaths/


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## JezStrider (Jun 19, 2012)

Zelah Meyer said:


> I have a vague niggling memory that even the term 'super hero' is trademarked. - Just googled it, yep: http://robot6.comicbookresources.com/2013/04/in-fight-over-super-hero-trademark-its-david-vs-goliaths/


I would have never thought about super hero being trademarked.


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## HarryK (Oct 20, 2011)

JezStrider said:


> I haven't worried about throwing brand names in before, but for some reason the superhero thing made me nervous! It's a brief mention.


Probably because they're owned by Disney, and even subconsciously you fear them. Because Disney is _terrifying._


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## WG McCabe (Oct 13, 2012)

I've heard the word superhero used in media and seen it in print thousands of times with no repercussions. The guy in the story above tried to register a trademark with the word in it and that's what Marvel/DC go after.


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## CraigInOregon (Aug 6, 2010)

JezStrider said:


> So in one part of my WIP, a boy is getting his face painted. Is it okay to say he's getting it painted like the Hulk, Spiderman, etc.? I'm assuming it's fine, but I wanted to make sure and I can't find anything online.


You're probably okay, although Marvel now has access to Disney lawyers. (!!)

I have seen, however, some books that contain no more than that, but go out of their way to obtain legal permission (usually no fee for something so innocuous) and end up having a short paragraph provided by Marvel (or DC Comics/Warner Brothers for Batman, Superman, et. al.) that says, in essence:

"Spider-Man(TM) and all associated representations are trademarked, copyright, and owned my Marvel Comics, LLC, a division of Disney Corporation... etc."

Yup, even for a small mention of one character. Maybe it's an over-abundance of caution, but I suppose that's better than "a lack of sufficient caution" where, if that book hits it big and some Marvel-Disney-Roxxon Corp (Marvelites will appreciate the reference) lawyer reads it, then decides, "This writer's making some money... let's take it away from him/her."

So there's an argument to be made for covering your bases, definitely. Better than the potential alternative. But the chances of Marvel caring over a casual reference like this? I'd like to say "low," but I'm not an attorney.


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## RJ Kennett (Jul 31, 2013)

Derivative works are fine. There's such a thing as too much caution.

Even if you cross the line somewhere, the first thing you'd get is a cease-and-desist. It costs them money to sue, you know.


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## Vaalingrade (Feb 19, 2013)

I make fun of the 'super hero' trademark constantly in my work. The media is so scared of calling a superhero a superhero, they came up with the objectively awful 'prelate' to replace it. At one point, there's a long conversation over if supervillain is trademarked too and how it would be totally unfair of the bad guys got to be called a cool name while the heroes can't.

Trademark and copyright law need to be rebuilt from the ground up.

Did you know that 'Space Marine' is Trademarked by (IIRC) Gamer's Workshop? Did you know that it was in use some 30 years before GW existed? Whiskey Tango Foxtrot.


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## johnlmonk (Jul 24, 2013)

You can write about brands and use their names.  Look up "fair use."  Without "fair use" David Foster would never have been able to write "Infinite Jest," nor Stephen King write brand names into so many of his works.


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## OA113 (Sep 6, 2013)

JezStrider said:


> So in one part of my WIP, a boy is getting his face painted. Is it okay to say he's getting it painted like the Hulk, Spiderman, etc.? I'm assuming it's fine, but I wanted to make sure and I can't find anything online.


I don't see why not. If you can't use "Hulk", then you wouldn't be able to use anything else, like the brand of a car, a gun, clothing, etc. So basically every single book would consist of made-up brand names for everything, because I'm sure even the makers of Glock have the Glock weapon copyrighted.


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## JezStrider (Jun 19, 2012)

Thanks all. I do think my fear of Disney had me panicked. Don't want to make the people who control superheroes and princesses angry!

I guess I figure if it could happen in reality, I should be able to mention it in a book. Not that anyone cares what I think about how trademarks  should work.


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## cinisajoy (Mar 10, 2013)

JezStrider said:


> Thanks all. I do think my fear of Disney had me panicked. Don't want to make the people who control superheroes and princesses angry!
> 
> I guess I figure if it could happen in reality, I should be able to mention it in a book. Not that anyone cares what I think about how trademarks should work.


Crafter hat on. I have a wonderful cross stitch book of the Disney Princesses. I cannot sell the finished pieces because of the trademarks because I am not a licensed vendor.
This is trademarks not copyrights. I cannot put the book through a copier and sell the reprints because that would be a copyright violation.

Now I am not positive but I think you can say he got his face painted like Spider-man but you cannot diss Spider-man in your book. Not sure on the first part, am positive on the second part because that is libel. Though hold on let me go look up a Supreme Court decision.


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## cinisajoy (Mar 10, 2013)

Here is a link on one of the most important First amendment cases.
http://law2.umkc.edu/faculty/projects/ftrials/falwell/sctfalwellvflynt.html
Larry Flynt was found not guilty of libel. The Supreme Court reversed the lower courts decision.


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## johnlmonk (Jul 24, 2013)

I got a take-down notice from the makers of "The Invisible Man" because he DIDN'T appear in my book.


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## Daniel Knight (Jul 2, 2013)

cinisajoy said:


> Now I am not positive but I think you can say he got his face painted like Spider-man but you cannot diss Spider-man in your book. Not sure on the first part, am positive on the second part because that is libel. Though hold on let me go look up a Supreme Court decision.


This sounded off to me so I did some digging. It turns out only a real person can be the victim of libel - so Spider-man is disqualified. Also, even if Spider-man were a real person (or you mention any real person in your fictional work) - other characters can still say negative things about them - they are only expressing an opinion. It's only if you say something factually incorrect and defamatory about a real person, are you subject to libel. From digging it also seems that it is very rare for a libel case to succeed.

Just think about all the late night shows making fun of all sorts of real people. Or for that matter all the gossip magazines talking about celebrities.

Here's a good site on legal stuff relevant to writers where I found the information: [URL=http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my]http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html[/url]


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## Guest (Sep 6, 2013)

rjkennett said:


> Derivative works are fine.


No, DERIVATIVE work is not fine. Only the holder of the copyright has the right to create a DERIVATIVE work.

What we are discussing here is incidental references to copyright or trademarked materials. INCIDENTAL references are NOT the same thing as DERIVATIVE.

An incidental reference is something that is not central to the plot, not implying ownership, endorsement, or involvement, and is not libelous. So your characters can eat at McDonalds, shop at WalMart, drive a Toyota, read Fifty Shades of Gray on their iPads, watch The Avengers in the Cinemark theatre, listen to the new Device CD on their iPods, and buy Spider-Man costumes without concern. These are all incidental references.

It is only when you make the protected work or mark CENTRAL to your plot that you may have problems. For example, if you wrote a book about a possessed car that ran people over (besides being accused of ripping off Christine) you would probably want to get clearance from whichever car manufacturer's car you intended to turn into a bloodthirsty demon.


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## OA113 (Sep 6, 2013)

Bards and Sages (Julie) said:


> No, DERIVATIVE work is not fine. Only the holder of the copyright has the right to create a DERIVATIVE work.
> 
> What we are discussing here is incidental references to copyright or trademarked materials. INCIDENTAL references are NOT the same thing as DERIVATIVE.
> 
> ...


What he/she said.


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## WG McCabe (Oct 13, 2012)

JezStrider said:


> Thanks all. I do think my fear of Disney had me panicked. Don't want to make the people who control superheroes and princesses angry!


That's their secret. They're always angry.


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## Saul Tanpepper (Feb 16, 2012)

johnlmonk said:


> I got a take-down notice from the makers of "The Invisible Man" because he DIDN'T appear in my book.


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## CraigInOregon (Aug 6, 2010)

johnlmonk said:


> You can write about brands and use their names. Look up "fair use." Without "fair use" David Foster would never have been able to write "Infinite Jest," nor Stephen King write brand names into so many of his works.


You're missing the actual meaning of "fair use" and confusing it with other issues.

1) Infinite Jest is a title. Derived from Shakespeare's Hamlet, which is long ago public domain. If you're talking about the content of Foster's novel, there's a landmark legal case (Falwell vs. Hustler, I believe) that created an exception of sorts for works of parody and satire. There's even a standard disclaimer for such works, which are different from the standard fiction disclaimer.



> This is a work of fiction. Names, characters, places, and incidents either are the product of the author's imagination or are used fictitiously, except in cases where public figures are being satirized. Any other use of real names is accidental and coincidental, or used as a fictional depiction or personality parody (permitted under Hustler Magazine v. Falwell, 485 US 46, 108 S.Ct 876, 99 L.Ed.2d 41 (198).


That's not a case of "fair use." It's a parody/satire exception, within the law. It pretty much establishes that "public figures" are open to "public mocking," more or less. The 1988 case is relatively new, but accepted generally and often cited as legal precedent in such cases.

2) Stephen King (and pretty much any other author) can generally use brand names, depending on the context of the use. But it depends on how it's used A LOT.

For example, M&M wanted nothing to do with Stephen Spielberg's movie, E.T., even though he was... well... Steven Spielberg. Even back then, he was already a big deal.

The original story (by Spielberg) and novel had M&Ms as the candy of choice for E.T. However, when M&Ms pulled out, Spielberg approached Reese's, who up to that point had only made their famous Peanut Butter Cups. But they signed an agreement to come up with a visually-similar candy and used the PR to launch that candy on the public... becoming known as Reese's Pieces.

Also, in GREMLINS, a scene set in a McDonald's had to be cut from the movie because McDonald's objected. (The scene showed a group of Gremlins eating people, but then coming across a Happy Meal, trying it, and spitting it out in disgust. Director Chris Columbus loved the visual gag, but he was forced to cut it or McDonald's threatened to litigate.

So, yeah... there's no "fair use" blanket policy on brand names and such that covers everything regardless of how you use it.

Moral of the story: Anyone can sue anyone over anything. They may not win, but that doesn't preclude a lawsuit being brought.

P.S. None of this falls under "derivative works," either.


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## CraigInOregon (Aug 6, 2010)

TRTB said:


> I don't see why not. If you can't use "Hulk", then you wouldn't be able to use anything else, like the brand of a car, a gun, clothing, etc. So basically every single book would consist of made-up brand names for everything, because I'm sure even the makers of Glock have the Glock weapon copyrighted.


Off-focus.

Hulk and Glock and whatever else are not copyrighted. (Titles and names and such cannot be.)

They are, however, trademarked.

Generally speaking, the biggest hurdle in using a trademarked name is getting it right in terms of spelling and capitalization. Companies that don't protect their trademarks can see the term become generic and no longer a protected trademark.

Example: Does Scott Paper Company make Kleenex? No, they make "paper tissues." Only Kleenex makes Kleenex-brand paper tissues.

So, if you wrote a book and used the word "kleenex" without the capital K, that would be the first thing that would draw their attention. Generally, you get a letter from their legal team asking you to make the correction. It can escalate from there if you ignore it.

The next concern is that you don't go around inventing your own hero can calling him "Hulk" or "Spider-Man" or "Batman." That's a trademarked term, so you can't do that.

Then there's the "tasteful depiction" aspect I wrote about in a separate post above.

Unlike copyrighted material, seldom do companies with trademarks ever request money for use of their trademarked term. Generally, these are their three concerns and money only becomes involved when you violate one or more of these three criteria.


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## CraigInOregon (Aug 6, 2010)

rjkennett said:


> There's such a thing as too much caution.


That's what Bernie Madoff said...


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## B.A. Spangler (Jan 25, 2012)

johnlmonk said:


> I got a take-down notice from the makers of "The Invisible Man" because he DIDN'T appear in my book.


funniest post I read this a.m.


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## johnlmonk (Jul 24, 2013)

Brian Spangler said:


> funniest post I read this a.m.


Thanks man


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