Dear dirkvw,
The short answer is that you need not fear any legal repercussions from
the kind of writing you describe.
I have not been able to find judicial rulings on the web pertaining
to this matter, but I am a professional writer and I have taken the
trouble to acquaint myself thoroughly with the boundaries within which I
operate. A few years ago, while pursuing my degree in Creative Writing,
I took a course in Non-Fiction that devoted some time to exploring the
concerns you've raised.
Let me address your question in order.
1. You are not required to obtain anyone's permission to record
and evaluate your experiences in any restaurant, resort, or other
establishment. You are generally entitled, in a free society, to write
freely about what you have seen, done, and felt, and this includes your
impressions as a customer or client. The owner of an establishment may
under certain circumstances bar you from entering, but once you have been
inside and departed, the experience you gained there is part of your own
history. You may write about it without stricture or permission as long
as (a) you have not entered into a prior confidentiality agreement with
the owner and (b) you do not commit libel, which is a willful falsehood
that ruins someone's reputation. I assume that you have made no such
confidentiality agreement, and that you do not intend to lie about people
to ruin their reputations.
2. You may freely refer to corporations and attractions by name. That
is what names are for, and if they are the trademarked property of some
entity, it just means that the name may not be used to designate other
corporations and attractions without permission. For example, I am free
to visit Disneyland and later publish a book in which I criticize the
food and the hospitality there, using the word "Disneyland" five times
on every page, because I am referring to the amusement park that is
so named. However, I may not open my own amusement park and call it
Disneyland, nor may I call a coffeeshop or a hockey team by that name
without the trademark owner's permission.
3. You don't need the owner's permission to publish photographs of
any sign, facade, or other architectural feature, even if it features
one or more trademarks. This is different from taking the picture
of a clearly identifiable person, since people do own some rights to
their own image. But you are free to photograph and depict the private
property of others in work of an artistic or reportorial nature. Suppose
you take a picture of a fancy hotel with its trademarked logo clearly
discernible. You are not using that logo to promote a hotel of your own,
which would be illegal. Rather, you are reporting on the existence and the
circumstances of a hotel using this logo, which is perfectly legitimate.
4. As long as you are not libeling anyone or any corporation, you do not
expose yourself to legal liability by writing a travel guide. What you are
offering is an account of your impressions and of what you believed to be
factual information at the time of writing. If the facts later change,
or even if you turn out to be mistaken on some points, it remains that
you intended to be accurate. There is no legal requirement that you be
perfect or even close to perfect, as long as you make an honest effort
in your reportage to state what you believe to be true.
5. You are not obliged to supply evidence for your statements or
observations. If you believe that a hotel opened 20 years ago, you are
free to state that it did so, without further explanation. You may
provide as little or as much information as you feel is appropriate
to make your case or to provide a pleasant reading experience. I would
advise differently if you were writing more sensational material, such as
a mafia memoir containing accusations of criminal activity, because then
you would be opening yourself to libel suits. Since you are not writing
anything of a scandalous nature, or at least I presume not, there is no
burden of proof. You are certainly not required to impart a restaurant's
promotional material when you write about it, and its various awards and
certifications are just that. If you write truthfully about a restaurant,
you are allowed to say as little or as much as you want.
In general, then, authors are afforded ample scope to write about their
experiences, thoughts, and feelings, even when these relate to private
companies or institutions.
I wish you all the best in your writing and publishing endeavors.
If you feel that my answer is incomplete or inaccurate in any way, please
post a clarification request so that I have a chance to meet your needs
before you assign a rating.
Regards,
leapinglizard |
Clarification of Answer by
leapinglizard-ga
on
11 Sep 2004 12:56 PDT
Yes, there are several websites devoted to copyright and trademark
law. You must not construe their contents as legal advice, for that is
something only a lawyer can provide. Rather, they provide background
information on these topics.
I like lawgirl.com, which offers primers and personal perspective from
a lawyer who specializes in copyright, trademark, and other
intellectual-property matters.
lawgirl.com: Home
http://www.lawgirl.com/
lawgirl.com: Bio
http://www.lawgirl.com/bio.shtml
lawgirl.com: Copyright
http://www.lawgirl.com/copyright.shtml
lawgirl.com: Trademark
http://www.lawgirl.com/trademark.shtml
Here are some other sites you may want to consult.
Innovation Law Forum: Intellectual Property Research Guide
http://www.innovationlaw.org/lawforum/pages/rg_intellectual_property.htm
FreeAdvice: Trademark Law
http://law.freeadvice.com/intellectual_property/trademark_law/
International Trademark Association: Information Center
http://www.inta.org/info/
Gregory H. Guillot: All About Trademarks
http://www.ggmark.com/
As for your numbered follow-up questions, let me answer them to the
best of my knowledge.
1. Careful, there's a difference between copyright and trademark. A
copyright applies to a body of work which is the intellectual property
of its creators, so no one else may use or distribute this work
without permission in a fictional or non-fiction work. A trademark is
the proprietary name or symbol of something, so you may freely use it
in reference to the thing it identifies. That is a proper use of the
name or symbol. For example, you may always use the trademarked name
"Rolling Stones" in reference to the band, and you are not required to
obscure the Rolling Stone hanging-tongue logo if it appears in a
snapshot of the band that you took for reportorial purposes. However,
you may not use the name "Rolling Stone" or the band's logo in trade,
which is to say as an identification of or a promotion for your own
product. As for logos and brand names being obscured in certain media,
that is done for the content creator's private reasons. Some media
outlets have a policy of not showing proprietary names and symbols
unless the trademark owner pays them to do so. In sum, they are
unwilling to carry free advertising.
2. In order for a written statement to be considered libel, it must be
false, malicious, and harmful to someone's reputation. If you are not
making a false and malicious statement that harms someone's
reputation, you are not committing libel. It is possible for someone
to claim that you are doing so even when you are not, thereby causing
you legal and financial embarrassment, so you should evaluate the
risks beforehand. Are you making a statement that is likely to
grievously offend someone, or that has a realistic chance of taking
away someone's livelihood? If so, that someone may feel inclined to
lash out. In general, however, restaurant critics and other such
reviewers are allowed great latitude in their writings. It is
understood by society and recognized by the courts that a critic's
role is to make frank evaluations of a consumer experience. A good
rule of thumb is to avoid making generalizations about commercial
institutions that you're reviewing. Limit yourself to specific
observations and personal impressions. For example, if you find
yourself sharing a hotel bed with ten cockroaches, you should not
assert that this is a disgusting establishment and that the hotel has
a cockroach infestation. On the other hand, there is nothing wrong
with reporting that you found ten cockroaches in your bed, and that
you were disgusted by this.
Cheers,
leapinglizard
Search Queries:
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