As my novel sits with its publisher, being checked and line-edited, several interesting issues have come up, which have brought home exactly how badly fear of lawsuits have eroded our ability to place our fictions within realistic cultural landscapes.
My novel is called Beautiful Losers. This is the title of a number of novels, including a famous one by Leonard Cohen and a documentary film directed by Aaron Rose and Joshua Leonard. But none of these are relevant. The title comes from a song by an obscure 80’s band called Clock DVA (you can listen to the song here.) Luckily, and strangely, titles are not covered by copyright.
But I wanted to pay homage to how much the song inspired me, in terms of atmosphere, so I opened the novel with a quote of the lyrics:
oh beautiful losers
you never seem to win
there’s something weird about your bitter erotic sin
you were so perfect
why did it end that way?
(Beautiful Losers, Newton & Turner, 1982, from the album Advantage, Polydor Records)
The novel is set in the alternative scene in Vancouver in the 1980s. The inspiration for and the atmosphere of the story really centre around a club called ‘The Luv Affair’ and the music of the period. The novel was peppered with snippets of lyrics that act as musical / literary mnemonics for the reader. At the beginning of one chapter, my characters are getting ready to go out for a night of clubbing. I opened the chapter quoting from the old Iggy Pop track ‘Funtime’.
Baby, baby, we like your lips
Baby, baby, we like your pants
All aboard for funtime.
(Funtime, Pop and Bowie, 1977, from the album The Idiot, RCA Records)
Finally, there were just some scattered cultural references. At one point, Sebastian, the delicious omnisexual member of the threesome is trying to persuade Shira, the narrator, to take the day off by telling her that her boss is a sweet guy and was, in his time, a notorious slut. It’s rumoured, he says, that he fucked Mick Jagger.
Sebastian stopped singing down the line at the top of his lungs and said: ‘You have the world’s nicest boss, Shira. Don’t lie. I heard the whole thing. Come on. Everyone knows Michael Fredrickson is an old queen! He’s a sweetie. Rumour has it that he fucked Mick Jagger back in the day, you know.’
Wow. That was news to me. I thought my gaydar was pretty good, but obviously I was wrong. Then I stopped to think about it. ‘Bullshit, Sebastian. He lives with a woman who bakes granola cookies.’
There was an evil chuckle on the other end of the connection. ‘That doesn’t mean shit in my world, girl.’(from Beautiful Losers, by Remittance Girl)
So, imagine my surprise when the publisher comes back to me, telling me I need to take out all the lyrics and all the references to people in the real world.
It’s not that they believe the lyrics cause the songwriter any intellectual or commercial harm. Nor do they really believe that Mick Jagger is going to be upset that a fictional character passes on a fictional rumour, that another fictional character may have slept with Mick Jagger. (And I do have to wonder whether, had the fictional character ‘rumoured’ to have slept with Mick Jagger had been a woman, would the threat of libel be as pressing?)
Everyone’s so damn scared of lawsuits, and so cognizant of just how long it might take to obtain permission to reproduce the lyrics, they’d rather not bother or take a chance. It’s easier to ask me to simply cleanse the fiction of any real cultural references – no matter how silly and clearly fictional.
So I did what they asked.
But it occurs to me that this paranoia of legal complications means that published works of fiction are going to be artificially stripped of any real cultural references. Out of fear, writers are forced to culturally decontextualize their stories.
Celebrities and the media organizations that profit from their existence get to use their images and personas to populate our visual and auditory world on TV, Newspapers, Posters, the Net, when it suits them for their careers. Songwriters get to impose their work onto us without permission in elevators, department stores, in advertisements, etc., but we are not allowed to reflect back the cultural landscape that results from this in our fictions. We are drowned in a sea of promotional messages everyday so we might be parted with our cash. But we have to pretend that none of this enters into our psyches or forms part of our everyday reality.
On the other hand, it seems conveniently permissible to mention any number of branded consumer products in fiction. Novels like Fifty Shades of Grey, Bared to You, and American Psycho (just to name a few) are stuffed full of designer labels the heroes and heroines wear, drive and consume.
How convenient.
The laws regarding intellectual property are not there to protect *us* at all.
I think it is fear of lawsuits more than anything else. Most brands are perfectly happy with them showing up, if the book/movie gets positive press or at least fame. On the other hand, companies seem to sue if their products are shown in less than positive light. I remember them editing the Heroes episode where the cheerleader stuck her hand in the garbage disposal. Apparently, the brand of the disposal was visible and the company in question didn't like it.
But with the sexual hangups of this country (and many others), is putting it in a negative context. I'm sure they would be perfectly fine if a guy had "Absolut" tattooed on his cock, specially if the writer lavished the details along his length. But as soon as one uptight person "accidently" reads it (e.g., was furtively reading it while hiding in the bathroom), and then makes a big stick, the company *has* to do something about it. Most of it is image control and PR. If they don't, it is shown as being accepting of the evil porns which sets off the portion of our culture who is *very* vocal about what they think is right (for everyone else).
In a culture where almost everyone eats at fast foot places, but you can't use a name of them. McDonalds and Burger King are almost universal, but even if you aren't writing a BJ scene under the table, having a character obsessed with Culvers (though more realistic) could threaten that brand, more so if you have a story with the more fringe sexualities (pony play, BDSM, etc.) Instead, you have bullshit names like McDowells (all right, not that one), Chicken King or other names that *sound* right, but aren't trademarked.
I want to be able to use culture in my stories. People make love to music, they meet each other in resturants (Red Lobster was the first time my to-be-spouse and my current lover both suggested a threesome with me). We live in clothes that have brands, make out in cars, and everything else that has a name, has a label, an image. Every single thing we do is wrapped in those labels, and I think it should be allowed easily. I mean, there is a lot more about being bent over a washer or being pounded into the Whirlpool.
The more frustrating part is that I feel it is reasonable for Fair Use. But, that is an expensive proposition to prove that you are doing it right.
This is absolutely ridiculous, and I do wonder if publishers dealing with edgy or erotic fiction feel they have to be so careful because they're more likely to be hassled due to the generally "objectionable" nature of the book. I know that Elvis' estate takes the trouble to track down anyone–even a friend who was making T-shirts with a bald Elvis advertising toupees–who uses Elvis's image and sends them a cease and desist letter. It certainly does feel unequally weighted toward those with the economic power.
The problem is, it's not that any judge in his or her right mind would find that either use of a stanza of lyrics, or the name of a celebrity or the mention of a corporation would financially or reputationally disadvantage the plaintiff. It's that costs of defending the lawsuit are so excessive, it is easier and safer to gag the author.
I have some direct experience in this regard. I had to take some expensive legal advice not too long ago about an issue of freedoms. The freedom to write behind a pseudonym and the freedom of my employer to protect themselves from the possibility of damage to their reputation.
The law tends to favour the conservative view and something which is conceivably disreputable is invariably ruled against.
Taken in that light it is not surprising that companies, publishers, seek to avoid anything which could be seen as disreputable and tarnish an image. However good and expensive an argument, the judgement will usually be in favour of protecting the rights of the reputation not the artistic merit of the work.
However, I think we have to at least give some positive credit to the books mentioned by RG, stuffed as they are with consumer labels. They are making it more legally defensible to use such in erotica. Stephen King used to get criticism for including such things in his fiction but now it is just a part of mainstream writing.
As the world further interconnects itself, the problems of intellectual property and libel and creative expression get even harder to navigate. The laws are different in different countries, and some ambitious lawyer could have a field day with multiple international suits, even supporting contradictory stances from jurisdiction to jurisdiction.
The fears of becoming associated with erotic or pornographic or transgressive works are almost always purely economic; actual damage is difficult to prove without direct action in the story (describing a scene with Mick performing atrocities, for example, but even that can be gotten away with in some countries), and is usually solved by a fee for the usage. Unfortunately, the fees for usage tend to wipe out all profit margins for small press runs for quite extensive periods of time. That's how the music industry solved the problem: it all came down to money-flow.
The other side of the coin is trying to prove artistic merit, also a difficult proposition, particularly in literature. The lines between trying to capitalize on someone else and making a reasonable contextual reference are ones that always come down to opinion, and the worst of it is that it isn't the writer's opinion that matters. If those references don't show up in promotional material, that's a point in your favor. Also the idea that the references were almost fleeting, and even though the lyrics were inspirational, they weren't generational to the story, with them showing back up, over and over, re-permutating and extending the influences and commentaries and interpretations away from their original intent, defiling them in ways the lawyers might try deem to be what would be sooooo bad for their poor victimized clients. I think you're safe, but my opinion isn't the one that matters here.
In a way, the request to snip is a weird back-handed compliment: the publisher believes that the work would be deemed significant enough and will sell well enough to get the attention of the sharks. At least, that's a viewpoint/rationalization that's worth considering, IMHO, although I'm pretty sure you have another word for their actions.
Hi, RG,
I've had this experience myself, but I never saw the implication you've highlighted – that our work, stripped of allusions and cultural references, will also lose the depth of cultural context. That's very scary but I believe that you're right.
I wrote a novella about a summer repertory theater group. I wanted to quote some lines from A STREETCAR NAMED DESIRE, in a scene where my heroine, a lowly understudy, suddenly finds herself playing Stella opposite the dominant hero's Stanley Kowalski. The dialogue from the play perfectly captures the dynamics between them. However, my publisher made me take the exact lines out. I can refer to the events in the play, but I know I've lost some of the richness by removing the direct quotations.