Web Toolbar by Wibiya Shelby Rebecca: Can I Use a Real Location In My Book? Yes! Yes you can. As long as you follow the rules.

Thursday, June 20, 2013

Can I Use a Real Location In My Book? Yes! Yes you can. As long as you follow the rules.

I'm publishing a novel this summer!!!!

I've learned so much about the process so far. I had to get an editor--and wow, is that expensive.

I had to get a book designer...more on that later.

I had to get permission to use song lyrics and a quote by Anne Landers...more on that later.

But, I'd say the biggest drama I've had so far was use of trademark and a certain tourist shop near where the book is set--which shall remain nameless.

I sent them a little note letting them know I was going to have my characters in Sadie's Mountain go to their location during a date.

Here was their response: (Note: I edited to remove their company name and any distinguishing content--not because I have to. Because I want to--because I'm nice. Oh, and also, I think she quoted something, but I'm not sure. Her quotes--stealing or not--are left in the quote below for descriptive purposes only.)

Congratulations on your book and thank you for letting me know about your publication. I hope I can lend some help in a small way with your fictional story line before it goes to print. 
The Name removed  is not a fictional place. We are not fictional, we are factual and historical. The owners are not fictional. You will need permission to use our "trademark" name and "copyrighted" establishment in your printing. We cannot prevent you from taking photos of our building from the street, however any photos obtained on the private property of the Name removed also cannot be used in a fictional publication for personal gain.
I appreciate that you "Legally" are not obligated to ask my permission to use this name and place, however under the copyright codes and trademark you will "Legally" need written permission to use our name "Name Removed" in your book or further publications.
Please do not fabricate, make up or otherwise attempt to deface or fictionalize the "Name Removed".
You do not have written permission to use this name.
I hope this has helped you re-think your final manuscript and good luck with your writings.
Angry Trademark Owner

[The "Laws" below were pasted under the signature. I've just made them smaller.]
Title 17 Section 120 of the good old US Code:
(a) Pictorial Representations Permitted- The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
In the U.S. a building can be copyrighted and trademarked too, and you can't use the image of it commercially without permission, except as a small element of a larger skyline. You can of course photograph anything you like from a public street -- it's how you use it that matters.
It is possible to trademark some aspects of a building, if there is an ongoing business that uses the aspect to identify itself. The aspect would have to be distinct enough that it serves to identify your particular brand (say, golden arches, a blue dome in the shape of a soft serve ice cream cone, or even a particular shade of paint is distinct enough."

So, I was on the bus coming back from a field trip when I read that. At first I thought she was being nice to me. Then, she hit me with all that mumbo-jumbo and my head started spinning.
I posted a question on Facebook for other authors and the responses were mostly shock. But everyone agreed. Authors are allowed to use real places in their books. I'm posting what I found below for all the self-published authors who want to know:
Can I use a trademark in my book?
Well, yes. Yes, you can! Here's why:
In fact, many, many works of fiction use real locations, and there is no reason why you have to even ask a company before adding them to your fictional book. Real locations add realism. If you use a real setting, you probably should use real businesses in it. The reason we worry about this is that there can be misunderstandings of the difference between a trademark and a copyright.
This is what a copyright covers: http://www.copyright.gov/title17/92chap1.html
"102 . Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

As you can see, the blueprints for a location can be copyrighted, but not the name itself.

For example, I would be in the wrong if I were to copy a company's website content and then print it in my book as if I wrote it. I'd need to get written permission to use their words directly. Their words are copyrighted--not their building, their name, or their distinguishing trademarks.

On the other hand, a trademarked name does give the trademark owner certain rights that may not fall under Fair Use. It's interesting because a trademark is used to protect the business so that it's not confused with other businesses. It's not intended to be used as a way to hoard the fictional use of a public place. That's not the intention of a trademark.

According to SmallBusiness.Chron.com,
"Logos are protected by U.S. trademark law, not copyright, and fair use of a trademark is not the same as fair use of copyrighted work. The reasoning behind fair use in either instance, however, is similar as it protects a fundamental right of free expression. Fair use allows the use of a logo without seeking permission from the trademark owner, but only under certain circumstances.

Legal Protection
U.S. trademark law as set forth in the Lanham Act provides for a non-owner of a logo registered as a trademark to make fair use or “nominative use” without prior permission from the trademark owner.
Logos as trademarks also can be protected by state law and court rulings in common law. The Publishing Law Center explains that unlike a copyright, the trademark ownership of a logo could potentially last forever. But logos don’t have to be registered as trademarks to be protected under common law. The law allows the owner of a trademarked logo to attempt to prevent any appropriation of the logo for use on competing goods or services or any use that could cause consumer confusion on ownership or endorsement. The rights of the logo owner, however, are not absolute.

Fair Use
The fair use or nominative use of a logo is recognized for purposes of description and identification. A newspaper, for instance, can incorporate a corporate logo in an article about a company’s annual report. Trademark allows an author of a nonfiction work to use a trademarked logo only to describe or identify the product or service of the company it represents. It might not be considered fair use, for instance, for a book on the general condition of the auto industry to incorporate only the logo of Ford Motor Co., on its cover. An article on the release of a new product using the logo of a competitor is even more likely to be found an infringement of trademark. Actual findings of infringement are left to the courts.
Use in Fiction

Portraying a logo in a fictional work, be it movie or illustrated novel, would generally not be considered an infringement as long as the use doesn’t confuse the viewer on who owns the logo’s trademark.

The use of trademarks in fiction is recognized as a means for enhancing realism in a story, though the movie industry has turned that around by not only seeking permission to use logos, but selling their use to the trademark owners as product placement. Use of a logo in a fictional work that disparages the logo owner can be ruled a trademark infringement, yet use of the logo in connection with a non-fictional work of criticism is fair use.without seeking permission from the trademark owner, but only under certain circumstances."

According to Cornell there are two reasons a trademark owner can have a claim against the user of their trademark.
"The use of a mark or trade name in commerce sufficiently similar to a famous mark that by association it reduces, or is likely to reduce, the public's perception that the famous mark signifies something unique, singular or particular.
Dilution is comprised of two principal harms: blurring and tarnishment. Dilution by blurring occurs when the distinctiveness of a famous mark is impaired by association with another similar mark or trade name. See 15 U.S.C. § 1125(c)(2)(B). Dilution by tarnishment occurs when the reputation of a famous mark is harmed through association with another similar mark or trade name. See 15 U.S.C. § 1125(c)(2)(C)."
1. Blurring does not pertain to the fictional use of a trademark unless the author used the trademark in their title,for example.
2. Tarnishment may occur if the location was used, let's say, as the site for a fictitious murder.
 I could probably prove that inclusion of the location in my book would have nothing but a positive effect on the public's perception of the location. Readers and fans would look up the location and would want to go there so they could see it, be there, and experience it for themselves.
So, in short, Trademarks are not protected under copyright. The blueprints for the building might be, but I haven't published them or copied them for personal gain.
Authors should not used any copyrighted works from websites. Trademarked names and logos are not covered in fictional use as an infringement as long as the author hasn't used the location in a defamatory way.
As you can see, the only reason authors or fictional shows or movies reach out to trademark owners is to see which one of them wants to buy advertising with them. For example, American Idol uses Coca Cola cups whether or not there's actually Coke in the cup. The Voice uses Starbucks cups instead. Those trademark owners pay them so they'll use their cups.
In this instance,  and concerning the letter above I didn't ask the trademark owner to do anything. I just wanted to check with them to make sure they'd be okay with me having my characters go to their public place.
Not only were they sarcastic, rude, and did they go off topic about the use of pictures (which I'm not using in my book, of course) but the tone of their letter felt a bit like a threat. According to Wikipedia, "
"Wrongful or groundless threats of infringement
Various jurisdictions have laws which are designed to prevent trademark owners from making wrongful threats of trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies.
Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.[27] In this situation, the party receiving such a threat may seek from the Court a declaratory judgment; also known as a declaratory ruling."

So, as you can see, when the larger company makes threats against a small company (an author), the small company can take legal action against the large company to bar them from threatening them.
Trademark owners should be careful what they say and to whom when it comes to legalities with trademark, especially if they don't even know the difference between copyright and trademark, and when they're mistaking fiction for pictures, and the like.
Oh, and by the way, authors should always use a fictional character to work at or own the real location because in order to have a real person in a fictional work you'd need a written release. That, you would have had to have written permission for, but not to use the name of the business fictitiously.

So, what did I do? I removed their name and trademarks from my book--not because I have to, but because they asked me to. I'm not sending notices to any other companies, either. If they're upset, I'll send them the research I've found.
Having to look all this stuff up was tremendously helpful for me to learn all the laws about trademarks and copyrights. I'm no expert so make sure to do your own research, too. I hope that my little run-in with this company will help you in your writing.

Happy writing!!


Sadie's Mountain, set in Ansted, West Virginia, and which features many local businesses and locales, is now available on Amazon



  1. Oh my.. I know the place you are speaking of. Wow, I was just planning a trip there some time this summer. I live less than 20 miles away. I've lived in the area for over 10 years and had always wondered what it was like. Now that I know the attitude of the owners, I'll be finding something else to visit with my kids. Most business owners would look at that as an opportunity to bring in new business.. free advertising. I know I would have jumped at an opportunity like that.

    Anyway, I look forward to reading your book.

    1. Hi there. Oh my gosh! You live so close. I was so upset when I got that letter from them. It doesn't make sense to me either. I wish they'd change their minds, but I changed the name and took out the distinguishing descriptions. It's now called the Mystical Gravity Tunnel and there's a metal wolf guarding the entrance. On the other hand, the Cathedral Café in Fayetteville, they thanked me and asked for a copy of the book.

      I'm really excited to hear what you think of Sadie's Mountain. I should have the book out of editing next week!!

      Take care!

  2. I was curious about the name change, but found this post very insightful. (I've only read the excerpt.) I grew up in Ansted, WV, and the "Mystical Gravity Tunnel" was something the locals never really talked about. It was more like a landmark for me when traveling from Gauley Bridge to Ansted, and for the longest time I thought the place was condemned. In reading the letter you received, the response doesn't surprise me. Their reputation isn't that great.

    Anyway, I also wanted to congratulate you on your first published novel! You are an incredible writer, and the love you have for your craft really shows.

    1. Hi Julie,

      Thank you so much for contacting me, and for saying such nice things. I've never been to Ansted, but I'd like to go this summer. How neat to have grown up there.

      I think, from what I read, it had been closed down for many years. The new owners did a lot of work to it. I just thought it would be a neat place for Dillon to take Sadie to. They have their first kiss there in over ten years. She's sitting on the chair against the wall when they just can't fight the overwhelming chemistry between the two of them. I knew I couldn't re-write the whole scene, and I didn't want to. So to make them happy I changed the name slightly and took out the distinguishing elements about the building that they might be able to call trademarks and published. If you'd be interested in reviewing the book, I can send you one for your Kindle or Nook in exchange for an honest review on Amazon or Goodreads. Let me know, okay :-)