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Notes on Editing - Chapter 12
By David McHam
Chapter Twelve
Brand Names, Copyright and Libel
Brand Names
Whether a brand name should be used in certain situations is a question of editorial policy. In general, no legal restrictions limit the use of brand names. The question occurs when the brand name is cast in an unpleasant light. Do you give the make of automobiles involved in collisions? Do you give the brand names of products involved when injuries occur? The answer to these and other questions is: It depends.
Normally you should not push the brand name on the reader. If a child gets locked in a refrigerator, the brand name is immaterial. But in certain writing the brand name may be absolutely necessary. When a plane crashes, you can't ignore the name of the airline and the name of the manufacturer.
If the brand name is used, the most important consideration is getting it correct. Don't say it was one brand when it was another. And spell it correctly. Brand names can be tricky. It's Dr Pepper, Coca-Cola and Pepsi-Cola, Band-Aid, Levi's, 7-Eleven, Jack Daniel's, S.O.S (no period after the last s), Kool-Aid, Diners Club, Schwinn, Procter & Gamble.
Many errors happen when writers use brand names to describe generic or general items. Xerox is not the only photocopier. Levi's is not the only company that makes blue jeans. Coke is a registered trademark of Coca-Cola, and all soft drinks are not cokes or Cokes. Fritos is a certain kind of corn chip made by Frito-Lay. Sometimes product names can be especially difficult. Cuisinart distributes a food processor. The original food processor it distributed was made by Robot-Coupe of France.
Some brand names have been lost because they have come to stand for the general item. Windbreaker, escalator, cellophane, kerosene and linoleum are examples. To maintain its brand name, the company must demonstrate that it is doing everything it can to police misuse. Trademark owners would like to see their names used as adjectives, as in Dacron polyester, Kleenex tissue, Crayola crayons, Xerox copier, Scotch brand transparent tape, Scrabble crossword game.
Other brand names you may have missed: Fig Newtons, Oreo, Sanka, Polaroid, Ping-Pong, Popsicle, Frisbee, Crock-Pot, Jell-O, Q-tips, Chap Stick, Cracker Jack, Tupperware, Hula-Hoop, Valium, Jacuzzi, Viyella, Ultrasuede and Ultra Suede, Naugahyde, Plexiglas, Fiberglas, Styrofoam, LA-Z-Boy and Realtor. To clarify, Realtor is a membership mark owned by the National Association of Realtors and licensed by it for the use of real estate people who belong to the association. Not all real estate salespersons are Realtors.
Copyright
Editors get into matters of copyright when they want to use something that may belong to someone else. Best examples are lyrics from songs, selections from poems and other literary works, illustrations, drawings, etc.
The concept of copyright protects the owner from someone using his or her work without remuneration. Editors must support that idea. In supporting it, they must not without permission use materials that are protected by copyright.
What's under copyright? Until 1978 the maximum copyrights could be in force was 56 years. The law provided that the original copyright of 28 years could be renewed once. Therefore, anything more than 56 years old as of 1978 is in the public domain.
Copyrights eligible for renewal during 1977 could be renewed so that the total term of subsistence would be 75 years. Copyrights issued after January 1, 1978, were subsist for the life of the owner and for 50 years after that.
The Sonny Bono amendments passed by Congress in 1998 extended personal copyrights to the life of the owner and 70 years. Corporately owned works for hire were extended even further.
The concept of fair use determines when copyrighted material may be used without permission. The provisions of fair use are: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount used, 4) the effect of use on the potential market for or value of the copyrighted work.
Watch particularly poetry, lyrics and similar material where the use would rob the copyright owner of income. Almost any use of poetry and lyrics could constitute infringement. However, selections from books, lines from movies, etc. won't affect the potential market.
As a matter of policy, publications should seek permission to use any copyrighted material. The statement of permission should appear with the reprinting: “(c) 1985 by Kenry Klutz. Used by permission.”
Copyright covers expression and not information. Facts can't be copyrighted.
One way misuse of material protected either by trademark or copyright occurs is as a result of borrowing names and concepts without permission. You can't just use Peanuts characters or the Dallas Cowboys' name for commercial purposes.
Libel
Libel is defamation expressed in any form. While some statutes may differentiate between libel and slander, for the most part libel is the concept with which editors are concerned.
Newspapers must publish many defamatory statements, and defamatory statements appear in other printed and broadcast forms. To publish defamation related to criminal activity, you need a legal safeguard. That safeguard is privilege. Remember, you are reporting on the process, not the guilt or innocence of the accused. Privilege comes as a result of actions taken before a magistrate.
Outside of criminal activity, other considerations are involved in deciding what to publish. Whoever publishes defamation is responsible. The justification can't (repeat cannot) be that someone else said whatever is in question. A publication assumes the responsibility for its own content.
While privilege is the best justification, it isn't the only one. You have other areas in which you may publish noncomplimentary information.
These include:
1) The actions of public officials and public figures related to their official capacity, but not to their private actions. This means that you have some leeway in what can be said about a person who holds a public office or is in the public eye.
2) Fair comment and criticism, which may relate to the actions of people who perform, act, play sports or are otherwise involved in public activity.
Be especially careful of words that may be defamatory: Examples: loot, bankrupt, guilty, connive, cheat, improper, unprofessional, bribery, crook, shyster, swindle, inept, incompetent. Don't use these words in making allegations against people unless you are covered by privilege.
Anything you say about someone that may affect how people think about him or her is defamatory. Defamation is the basis of a libel action.
Currency Reproduction
Federal law prohibits reproduction of a host of documents including passports, stamps, money orders, gold certificates, government bonds and other items, including paper money.
The law concerning the reproduction of paper money is as follows:
No paper money can be photographed and/or printed unless the picture or illustration is for the purpose of illustrating material that is 1) educational, 2) newsworthy, 3) historical or 4) numismatic in nature. This restriction applies regardless of the size of the illustration or of its color.
Copyright David McHam
Quiz
Poynter.org
Covering the military
Today's front pages/Newseum.org
New York Times
News page design basics
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