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Use of real product in comedic news satire article

Discussion in 'Copyright, Trademark, Patent Law' started by News-Satire, Nov 16, 2020.

  1. News-Satire

    News-Satire Law Topic Starter New Member

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    Jurisdiction:
    California
    Imagine an Onion News story like this....
    In order to accommodate Joe Biden's cognitive decline, the US Military has modified the nuclear football so that Biden can use The Clapper in lieu of nuclear codes to control the US nuke arsenal.

    Would this be a fair use situation?
     
  2. adjusterjack

    adjusterjack Super Moderator

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  3. Tax Counsel

    Tax Counsel Well-Known Member

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    I assume that since it is just a story the only thing you are doing is mentioning the product name, i.e. you are not including any photographs, advertising text, audio recording or other creative works you didn't create yourself in the story. If that's true then this is not a copyright issue. Copyright protection does not extend to names, so you could use the product name without any copyright problems. Thus, Jack's links for copyright fair use wouldn't come into play here. If you are using more than just the name, though, that may be another story.

    However, the product name is a trademark. The issues involved in trademark use are different than in copyright law, and the fair use trademark is different, too, because of that. Trademark is about avoiding confusion over the source of a particular good or service. Using the name of a product in a fictional story usually isn't going to cause trademark infringement issues (though one still has to be careful in the story not to disparage or dilute the trademark). For example, in the Harry Potter books products like a Ford car, Mars candy bars, are mentioned to give more real world flavor to the story. Such use doesn't generally infringe on the trademark. A lawyer who is also a writer has a short discussion of disparagement and dilution of trademark that may help you to see where the lines are in using trademarks in your writing.
     
  4. zddoodah

    zddoodah Well-Known Member

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    The answer is no, but the reason for that is that it's not an infringement of any sort at all. The only reason you need to consider fair use is if something has occurred that would otherwise be an infringement.
     
  5. News-Satire

    News-Satire Law Topic Starter New Member

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    Showing a photo (that included an image of The Clapper packaging) to go along with the article would add more flavor to comedy of it all. But would showing a picture make it potentially more of a problem?
    I'm trying to think if the Onion has ever shown real products in their satire stories.

    BTW I like this article that you linked: "However, if the work is a parody or the statement is true, no matter how damaging (like the deaths linked to faulty ignition switches in certain General Motors cars), then you are clear to use that fact in your plot or mention it in your narrative."
     
    Last edited: Nov 16, 2020
  6. zddoodah

    zddoodah Well-Known Member

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    Almost certainly no, for the reason I already mentioned and others.
     

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