I have a dilemma.
Half of the sturdy vertebrae
within the backbone of my current WIP, is based on the name of a business which has
been in operation in my part for the world for decades and still exists.
Known locally by a few, it’s basically unknown within a five mile
radius. The name, type of business and its current physical and financial condition
is everything to my story. It creates a clever framework, a background, a
lifeblood for my characters. More importantly it sheds light on (and answers) the
results of a (timely) fascinating socioeconomic downfall. From mansion to flop
house, it opens doors to a side of life, hopefully, many of us will never see.
My dilemma.
Though this novel is as fictional
as I am real, I am forced to ask, what are the legalities regarding the usage
of the business name?
In more pliant words, when,
(notice I did not say ‘if’), the novel is published, and when it becomes
successful, would Mr. Little Guy be able to claim rights and financial
remuneration, from Ms. Finally Successful in Fiction Writer?
I am so used to the parameters of
non-fiction (getting things right) that it makes me wonder if an agent or
publisher would steer clear because of fears regarding a lawsuit. Me, I’m
diving in and plugging along because I believe it’s a great story. I’m just
trying to do it proud.
Dilemma or no dilemma?
2NS, WHEN is not to be questioned. Use of the business possibly. Based on recent discussion on QOTKU blog I'd leave it exactly as is, finish and sub. When you have your agent flag it with them and see what they think. You can always 'find and replace' the business name. If it's known locally only, than changing the name will mean nothing to the majority of readers.
ReplyDeleteI don't think you have a dilemma at all =)
Thanks AJ, your input is greatly appreciated. If I could come up with a better name I would. It's just so perfect. I have to finish and then figure it out. Thanks for stopping by.
DeleteIf the agent or publisher would steer clear because of potential for lawsuits, I would guess they would just ask you to rename the entity. So as long as you will be using an agent [or at least a mid-size publisher], and not self-publishing or going small, you should be fine leaving it as-is for now, and discuss your concerns once you are closer to a contract.
ReplyDeleteCertain businesses are VERY aggressive in protecting their brand. Disney comes to mind. You don't know how aggressive this business is, so personally I wouldn't risk it.
The tone and words of your blog post makes me think you either don't portray this entity in a positive light, or you have it sliding a downhill slope. I would use a fictional name in that instance. Also, if the current WIP is positive or neutral, but you plan for a series, you might want a fictional name so you don't limit yourself to what you can write in the future.
It also appears you might not be concerned with a business defamation lawsuit [which is what I would be concerned about] so much as having to share your profits with this company if you are successful. That's a different lawsuit.
I don't do IP law, so this is not legal advice, just my scattered thoughts. Which obviously isn't really helpful =)
Now if you want to evict this entity from a CA address, I'm all yours!
I agree with WHEN you're published, not IF.
Good luck.
Dena I can't imagine this business being aggressive or even finding out I used the name. It's that obscure. But it could be viewed as a David and Goliath thing. I've been a David so long that being a Goliath would be awesome.
DeleteBut like my mother always said, (may she rest in peace in cliché heaven), "don't worry until you have something to worry about".
In my very unofficial opinion--I'm not a lawyer but I love watching tv programmes about lawyers--if someone can sue, they usually will. Change the name.
ReplyDeleteWhy risk being sued?
Problem is Barbara I can't come up with a name that is more relevant to the story. I think I'm going to have to take the risk.
DeleteThe easiest way out is to ask permission. You will probably not get a response but you can document your attempts and say you did your due diligence.
ReplyDeleteDue diligence is a stronger legal precedent than the possibility that you can libel when writing fiction. Most legal minds say that you can't.
Well Craig I was thinking about permission and notification. I know I'm getting ahead of myself here but like most writers, I worry.
DeleteI agree with what Craig said, why not ask and see what they say? They might object, like Dena said above, if you don't portray them in a positive light but then again, sometimes bad news is like good news in that it "travels fast." They might even get more biz b/c of it, right?
ReplyDeleteI'm thinking I'll ask after I lawyer up. Can't wait 'til it gets that far.
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