Crime Writing in America – Legal Issues

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Earlier, I posted the article Crime Writing in Canada with plans to quickly follow it with “Crime Writing in America”. Sorry for the hold up. I haven’t had good luck finding special legal issues for crime writing published in America.

America has more freedom than Canada because of the first amendment right to freedom of speech. I could find no laws against publishing “crime comics”, stories where the theme is crime, or the suggestion that all criminals be either dead or in prison by the end of the story. That makes stories published in America more realistic.

Publish in America and your main character can be a successful criminal in a story centered around crime with the main characters still alive and free at the end. Sure. You’re free to have all that in your novel, but would you want to? Would you buy a second novel from an author who wrote something like that?

Common sense is as good a censor as the law. We all like to see characters suffer for bad behavior and prosper for doing good. But enough about how lawless of a story you might want to write. What about the laws that apply everywhere, even with freedom of speech?

Hate Literature

Laws against hate literature are nearly universal. I think this is mainly a non-fiction issue. Nobody wants to waste their money on hate literature.

You may have a group in a work of fiction that hates another group because of race, gender, religion, or some other politically incorrect category. As long as they’re the antagonists and are going to get what’s coming to them in the end, that shouldn’t be a problem. If they’re the heroes of the story, you’re heading into trouble and your problems go deeper than just your story.

The remaining issues apply to every kind of writing. They’re all to do with people and corporations protecting their intellectual property and their image.

Plagiarism

Plagiarism is copying someone else’s work word for word without giving them credit. It depends a lot on how much you copy. If every sentence was subject to copyright, you couldn’t say “It was a hot summer’s day” because somebody has written that in a story already. Probably hundreds of someones.

Plagiarism applies if you copy an entire article or story or substantial parts of one. But what if you wanted to use “It was a bright cold day in April and the clocks were striking thirteen” as the first line in a chapter as a way to suggest you’re writing about a dystopia like George Orwell’s “1984”? It’s not a substantial portion of the novel, but the line is so distinctive it may qualify as a trademark of sorts. That’s the next issue.

Trademark Infringement

If you decide to put a Starbucks Auto Repair in your novel, you’ll be committing trademark infringement. The name “Starbucks” is an established trademark and, if your book is successful enough for them to notice, you can be sued. But maybe your book will be a flop and everything will be okay.

Trademark Dilution

If your characters like to meet at a Starbucks instead of a Starbucks coffee house, you’ll be committing trademark dilution. I see this in a lot of published novels, so I’m guessing companies aren’t too worried about this issue. The reason trademark dilution is a problem is that the Starbucks corporation wouldn’t want Starbucks to become the generic name for all coffee houses. It doesn’t seem like that could happen, but Kleenex facial tissues would disagree.

When you have a runny nose, you need a facial tissue. Kleenex is one brand among many. At one time “Kleenex” was used in place of “facial tissue” no matter what the brand of facial tissue. That was brand dilution and Kleenex facial tissue had to sue writers who used their brand name as the generic name. Now nobody in a novel uses a Kleenex unless it’s a Kleenex facial tissue.

How do you decide what to use? You don’t want to always need to say “Starbucks coffee house” and “Kleenex facial tissue”. That can be clunky looking. You could make up your own brands or just use the generic names. There’s nothing wrong with characters stopping at a coffee house or wiping their eyes with a tissue. You can also get permission to use company names. I suspect that’s why we see characters stopping at Starbucks and other trademarked companies without the generic name following. Some trademarks are distinctive enough to be safe from dilution.

Libel

Anything negative you say about a product, company, or person can be libelous. This is a problem in non-fiction because the book is your opinion.

In fiction, it’s not a problem that a character says libelous things. It’s the opinion of a fictional character. It may be a problem if the narrator says libelous things, but the narrator isn’t necessarily the author. Narrators can be fictitious too.

Is that every American law on writing and publishing?

It might be. If it isn’t, at least it’s a start on things to look out for in your writing. I think most of us writing novels have little to worry about, but there are those few look-outs.

Article by Ivan Izo.

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