Be Careful What You Write

Posted on March 24, 2010

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There’s one realist aesthetic in writing that demands an exactitude regarding brand. If a character is smoking an unfiltered cigarette, it’s not enough just to say that. Instead, you’d need to name the brand: a Camel smoker is not the same as a Lucky Strike smoker (ah, my old brand from way way back) or a Gauloises smoker. But these days taking a brand name in vain can get you into big trouble.

The business enterprise that owns a Paris fabric store, Marché Saint Pierre, is suing a French mystery/crime author, Lalie Walker, for defamation. Evidently, Walker had used the store as one setting for her novel, Aux Malheurs des Dames. The owners do not like the idea that their beloved store is being used as the backdrop for a whole lot of nefarious goings on. So, they’ve gone out and got some lawyers to put the fear of capitalism into Walker. She’s been slapped with a multi-million dollar suit.

While this is occurring in France (& in Europe defamation laws put an undue burden on the defendants to show that they have done the plaintiffs no harm), it does send a chilling message stateside (especially with the Trademark Anti-Dilution Act). Writers, and their publishers, might be thinking more than twice about getting hit with lawsuits. While larger publishers have some protection with errors and omissions (E&O) insurance, smaller publishers (on the fringe) cannot afford the hefty premiums. And big companies know that they do not have to see the lawsuit all the way to court. The prospect of mounting legal costs (even if you are in the right) can force a publisher to capitulate.

Very chilling for free speech. What were once a writer’s private aesthetic decisions (ones that have been argued fairly fiercely) are now the province of a writer and his or her lawyer. I suspect, in today’s world (despite mash-ups and “borrowings”), there wouldn’t be a warm corporate welcome for a Warhol tomato soup painting. Nor would I think Jim Beam welcome today a letter my bourbon-soaked creative writing program confreres from thirty years ago always intended on writing, asking the company for a lifetime supply of their product (& a pittance in cash) in return for extolling the name of Jim Beam in the best post-modern verse.

So, don’t disparage that Big Mac in a play, or a novel, or a poem. You might see Ronald McLawyer on your tail.

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