Christine's Note: This is a guest post by Kathryn Goldman, a lawyer who represents writers, artists, and businesses to protect their intellectual property. Check out Kathryn's free ebook, Rip-Off Protection Report for Creative Professionals. [Her article below is written to give us an idea of how to be thoughtful about intellectual property and the law when we write our stories, and is not legal advice.]
Ever find yourself in the middle of writing your story and your main character starts using a real life product or gets involved with a real company? Something that people use or see or hear about everyday?
Something as simple as, can I have someone drinking a Coke in my story? Or, will Hasbro get upset if My Little Ponies populate my character’s bedroom?
You need to consider what you can and cannot write about before you rest a large part of your story on somebody else’s name brand or trademark.
Let’s examine why some things are made up in The Fault In Our Stars by John Green while other things included in the story are real.
Trademarks in The Fault in Our Stars
- The Genie Foundation: In The Fault in Our Stars, Gus arranges to take Hazel to Amsterdam through The Genie Foundation. (Ch. 5, 6, 11, 12). John Green created The Genie Foundation just for the story. There’s a reason he didn’t use The Make-A-Wish Foundation instead.
- Free No Catch: He did the same thing with the website Free No Catch. (Ch. 8). He made up a fictional website to get rid of Hazel’s swing set instead of using the real Craigslist.
- Girl Scout Cookies: But then there are the real Girl Scout Thin Mint cookies Hazel’s friend Kaitlyn chows down on at one point in the story to drown her sorrows over a recent break-up. (Ch. 6).
- America’s Next Top Model: Hazel and her parents are constantly watching, or recording, America’s Next Top Model, a real TV show.. (Ch. 1, 24).
- McDonald’s: Gus stops in at McDonald’s in the airport for a burger before getting on the plane. (Ch. 10).
- The Price of Dawn: Gus tells Hazel that his favorite book is The Price of Dawn which is not only a book, but is also a video game. (Ch. 1, 4, 9, 16). The Price of Dawn video game does not exist in real life (neither does the book). John Green created it. The Price of Dawn seems just like any other multi-shooter video game. Why didn’t JG just use Call of Duty, for example?
- Clothing Brands: If you look at Hazel’s wardrobe, her kicks are Chuck Taylors (Ch. 1, 12, 15). She wears a dress from Forever 21 on her date with Gus to Oranjee. (Ch. 11). Even Gus wears a Rik Smits Pacer’s jersey to announce his surprise trip to Amsterdam to Hazel. (Ch.5). All are real, any one can go out and buy them.
Why Some Trademarks are Used in TFIOS and Others Aren’t
When you see golden arches. you think of McDonald’s– the symbol of the golden arches and the word McDonald’s are both trademarks.
A trademark is a word, phrase, symbol or design that identifies the source or origin of the product.
The Girl Scouts, the Make-A-Wish Foundation, Chuck Taylors, Forever 21, the Indiana Pacers and Craigslist are all federally registered trademarks, too.
Very simply, when a trademark is federally registered, it means that no one else can use that mark to identify the same product.
When deciding whether to use a real trademark in your story, there are three things you need to think about: (1) trademark infringement; (2) tarnishment or defamation, and (3) dilution.
1. Infringement is Not Usually a Problem
Trademark infringement is not that big a problem in fiction writing. Hazel is able to wear Chucks and it’s not an infringement because TFIOS is not trying to sell Chucks to the reader. Trademark infringement takes place when a competitor selling the same product, in this case shoes, uses the same or a confusingly similar mark.
There’s no confusion here. Hazel isn’t trying to sell shoes and neither is John Green. That’s why the use of various products and clothes in scenes throughout the book isn’t a trademark infringement problem.
2. Tarnishment or Defamation is the Big Concern
While trademark infringement isn’t a big concern for authors, tarnishment or defamation is.
Using a trademark in a derogatory or offensive way could cause problems.
- This is why John Green created the Free No Catch website instead of putting Craigslist into his story. When Hazel and Gus are writing up the advertisement to give away her childhood swing set, Hazel says jokingly, “Lonely, Vaguely Pedophilic Swing Set Seeks the Butts of Children.” (Ch. 8).
Craigslist would not want to be talked about in a way that connects it with pedophiles. Even though Hazel is joking, the comment is derogatory and could be considered tarnishment or defamation of the trademark.
- When Isaac and Hazel are playing The Price of Dawn video game, they try to make the game “hump the cave wall” and “thrust pelvis against the cave wall.” (Ch. 23). No real video game maker will want its game shown in that light.
TIP: If you are going to depict a product or company in a negative way, make up something that doesn’t exist and avoid the legal problems, even if it is a joke. Then you can be as negative or graphic as you like.
- So why did John Green make up The Genie Foundation instead of using The Make-A-Wish Foundation? The Genie Foundation isn’t disparaged or depicted in a bad light in TFIOS. Maybe not, but the trip to Amsterdam to meet Peter Van Houten did turn out to be a boozy, horrible disaster with someone Hazel and Gus refer to as a “doucheface” and “assclown.” (Ch. 12).
The answer is more complex when a company has “agency” (i.e. its own role in the story).
- The Genie Foundation plays a role in TFIOS. The Genies take action and make decisions that impact Hazel and Gus. The Genie Foundation has agency in the story, almost as if it were a character.
John Green has the Genies do things that The Make-A-Wish Foundation might not really do, like grant Gus’s wish when he is well into remission. “I got it in exchange for the leg,” said Gus. (Ch. 5).
- This is true for the Price of Dawn video game, too. John Green had the video game do things that perhaps a real video game can’t, like allow a blind person to play with only voice commands. (Ch. 23).
TIP: If a company or person starts to act with agency in your story, make them fictional and not real.
For those two reasons, possible tarnishment and agency, The Genie Foundation and The Price of Dawn video game were created for the story.
3. Dilution is Less Important to Worry About
Dilution is when authors use brand names generically, like “Get me a Kleenex, will you?” instead of asking for a tissue. Trademark owners hate that.
There’s one place in TFIOS where dilution might have come up. When Hazel goes to support group, she grabs a cookie and pours lemonade into a Dixie cup. (Ch. 1). Dixie is a trademark and not all little drinking cups are Dixie cups. That’s an example of possible dilution.
Later in the story, Hazel and Gus drink from Winnie-the-Pooh cups (Ch. 15), showing that not all little cups are Dixie cups. Possible dilution problem fixed.
Have you ever used a real product or company in your story? How?