Archive for COPYRIGHT

Madam Counselor: Using Trademarks in Titles

Dearest Admirers,

On a recent evening while touching up my pedicure with the help of a holiday hot toddy—lo and behold!—a visitor to my site wrote in with a question. Shoving aside my hot toddy (without spilling any), I decided my toes could wait. It was late, the weather was unpleasantly cold (for Florida), but somebody out there needed me.

Stretching my fingers wide to ready them for typing, I shrugged back my shoulders and dove right in:

Hi Alex,

My editor referred me to your Twitter page, which led me here. My question is regarding the use of a copyright name in a title.

I, like most writers, use trademarked names throughout my novels. My protagonist loves Honey Nut Cheerios, his sister drinks Rolling Rock Beer, etc. In my upcoming novel, however, I want something different. I want to use a product name in the title. In this case, it’s Buick.

Is it necessary to get permission from Chrysler to use the Buick name in the title of fiction work?

Thank you.

Now, we all know the basic logic behind trademarks: it’s the recognizable brand of a product or service, the owner of which may pursue legal action for its infringement by a third party. Said legal action can take the form of a cease and desist letter, an injunction, and/or a lawsuit for money damages. There are a lot of facets to defending a claim of trademark infringement, but this dear reader was not asking whether a lawsuit could be won or not. The question was simply: “Will I get into trouble?” And in the case of a writer, “trouble” is defined by having to change the title of the book after it’s been released.

So, that requires Madam Counselor to dispense a different version of wisdom than the question of whether one could win a lawsuit:


The answer to whether you can get away with using a trademark in your title is going to depend on the context of the use and whether a secondary meaning can be ascribed to the term. For example, “Murder at Cadillac Ranch” wouldn’t be an issue because Cadillac Ranch is a place. “The Murder in my Cadillac” however might get you a cease and desist letter, even if you had a defensible claim for your use because big companies get cranky when they’ve paid a lot of money to build up a brand and then someone tries to capitalize on that recognizability and tag it with something unsavory, like death.

I’m guessing the threshold you are shooting for here is to avoid getting the cease and desist letter in the first place, and not whether you could win the case if sued, which means there’s a certain matter of practicality to be factored in to the decision aside from a purely legal analysis since cranky plaintiffs with a lot of money don’t have to be right to sue.

PS – If you’d like to share the title you are considering, I can give you a gut check on what I think (but I won’t post it on the site).


My dear reader wrote back as follows:

Thank you for the quick response, Alex. It is for a murder mystery. The title I’m hoping to use is

A Body in a Buick

I found a request form on Chrysler’s website, but it seemed like it was for much bigger projects, such as films and such, so I was hoping I could avoid it. Your response makes it sounds like I will need to get permission first, but I’m hoping you tell me otherwise.


Well, I had to be honest. I slugged back another sip of my hot toddy and broke the bad news:


Shoot. Gotta tell you, that didn’t pass my gut check. I think you’d be inviting unwelcome attention from Chrysler’s in-house lawyers if they found your title during one of their routine IP checks on the Internet. An unhappy letter at the least. You could try asking permission, but I don’t think it’s likely you’ll get it. Frustrating, I know. And, yes, it would be a different story if James Patterson wanted to put out a novel with the exact same title—Chrysler would be all over helping to promote the book then. Sorry, I do wish I could give you the answer you wanted!


My gracious reader wrote back quickly, and I was relieved to know I’d managed to help him, without obliterating his dream:

Thank you, Alex.

You didn’t give me the answer I wanted, but you gave me the answer I expected. Since I’m not going to use it, feel free to post the title on your website if you’d like.

All in a day’s work for this dainty Internet superhero, my friend. And now, with my work done, I picked up my little bottle of nail enamel and finished painting my toes “Coca-Cola Red®.”

Yours in law,

Madam Counselor™

Madam Counselor Does Good (Copyright) Deeds On Twitter!

Always looking to help those flailing about on Twitter lost in the quagmire of copyright law, Madam Counselor tosses back a champagne cocktail and dons her superhero cape to answer their questions.

You never know where in the Twitter-verse Madam Counselor might show up to save the day. Follow here for future appearances:




It’s the Back-to-School/End-of Summer edition of Ask Madam Counselor—where your copyright and fair use questions about creative endeavors are answered poolside, under a simmering late-summer sun, assisted by the friendly influence of muddled cucumber and gin.

As always my responses are purely for entertainment purposes, and as such I make no representations that reading beyond this point will be remotely worth your time (though you can pretty well bet it will be worth your money).

Today we’ll help a film student apply fair use on her project so she can impress her professor without leaving the best part of her clip on the cutting room floor.  (Did you notice how I referred to myself in the plural in that last sentence for no reason? I blame the gin.)


Dear Madam Counselor –

My first project this semester is to make a 15 minute film about how Elvis impacted the history of rock and roll. The prof said don’t use more than 30 seconds of any clip for legal reasons. So naturally I found the PERFECT clip to show how his music correlated with the civil rights movement but it’s 42 seconds long. Is this really a problem? I see professional documentaries all the time with much longer stuff in them. I want to get a good grade, but I don’t want to argue with my professor either. It’s only the second week of school.


Okay, first off, let’s clarify something:  even though we’ve all seen it a zillion times on the Internet, there is no actual 30-second legal standard that defines whether or not the use of copyrighted material is acceptable as fair use.  It’s a rule of thumb often quoted in business practices to avoid examining on case-by-case whether that particular use of copyrighted material falls under the fair use exception. It’s so much easier to tell your reporters, editors, film students, music students, etc. that it’s okay to use 30 seconds of something than to have to go through a detailed fair use analysis with every piece of footage or music they propose to use.

But the problem is that this is EXACTLY what copyright law requires:  a detailed analysis, using four separate (and, frankly, not all together clear) factors, each applied to the proposed use. This problem is compounded by the fact that even going through a detailed application of these four factors doesn’t (SURPRISE!) reveal black and white answers about what is and is not okay. Geez, you’d think copyright law was written by lawyers, or something. It’s pretty hard to manage a business with that kind of murkiness, and in my fifteen years of practicing entertainment law, I found that 101% of business and creative people would rather not have to consult a lawyer every time they want to apply fair use (no offense taken, really), so it’s not hard to understand how this 30-second thing came about, even though it’s meaningless.

So what’s a rule-abiding student filmmaker to do? How do you both follow the law, and appease your professor?

Fortunately for you, the good folks over at the Center for Media and Social Impact have created a Statement of Best Practices in Fair Use for Documentary Filmmakers  through a cooperative effort among five documentary filmmakers’ professional associations to help add some clarity to this squishy area of law that affects so many creatives.  (If you aren’t a documentary filmmaker, there are also Statements of Best Practices for Visual Arts, Dance, Sound Recordings, Online Video (think YouTube), Poetry, and more—go check them out.)

How does this help you?

This short CBP document takes you STEP-BY-STEP through each of the four factors specifically as they apply to documentaries, teasing out various common scenarios to help you assess whether your specific use falls within the exception for fair use. In addition, at the link above, there are FAQ’s and other helpful resources, such as a section on when you don’t even need to worry about fair use.

The logic here is that if documentarians as a whole are consistently applying the principals of fair use in their filmmaking, this strengthens the legal case for all documentarians who are consistent in their practices if they are ever called into question.

Not only will utilizing this resource reassure your professor about the choices you make incorporating copyrighted material into your project, you might end up teaching him something along the way as well.

Feel free to leave a comment on my website or  Twitter if you have any follow up or other copyright questions.

And now, please excuse me while I fetch some ice for my gin.



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