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Can I make a low-key reference to a Marvel movie in my book without anyone noticing?

And if they do notice, can I get sued?

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Aspen the Artist and Author
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  • I wanted to reference the new Spiderman- Homecoming movie, with the enemy having those robotic wings. – Aspen the Artist and Author Sep 12 '17 at 20:58
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    many things have robotic parts but they aren't conflict of each other. What exactly about it are you trying to reference? The robot name? The part name? How will we know it is a reference at all? describing it's look may or may not trigger even the same image among different readers and only those who paid close attention to the robot wings in spiderman might even possibly relate them to each other. Many anime all have mechs or augments that look similar. They all are named differently and function slightly different to make them unique enough. – ggiaquin16 Sep 12 '17 at 21:15
  • Not meant to be taken as hostile, but you left out a whole lot of things that we need to know. Just saying you want to reference it doesn't tell us how you will reference it which will ultimately determine whether it is okay or not. – ggiaquin16 Sep 12 '17 at 21:33
  • I wanted to describe it's appearance to the dot. But I was curious if people would "get it" and sue me for copying something. – Aspen the Artist and Author Sep 12 '17 at 21:52
  • well, describing it's appearance to the dot wouldn't or shouldn't trigger much of an issue but IANAL. As stated, many guns, many anime, many movies use things that are fairly if not exactly identical, but with different names. You might need to modify the look slightly but ya. Like instead of say a blue color, it's red. Or if it has a decal of a skull on it, then do cross bones or something. Slightly changing it also helps keep you safe. – ggiaquin16 Sep 12 '17 at 21:58
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    Bottom line: you need to educate yourself on the fair use doctrine. No one can tell you with certainty if your proposed use is fair use, which would, in any case, be specific to your work and therefore not on topic. There are already several questions and answers on fair use issues, but there is no substitute for studying the law directly and getting professional advice if you are not certain. –  Sep 12 '17 at 23:14
  • Why don't you come up with your own ideas? –  Sep 13 '17 at 06:26
  • Anyone can sue anyone for anything. The real question is "could they win the lawsuit" and "can you afford to fight them". – Philipp Sep 13 '17 at 14:56
  • @what I have a really hard time with that, I struggle to find inspiration. – Aspen the Artist and Author Sep 13 '17 at 16:52
  • I'm pretty sure that acknowledging that an intellectual property exists isn't a breach of any copyright laws. – GordonM Sep 15 '17 at 15:31

1 Answers1

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I am not a lawyer, but I'd avoid doing what you suggest. Here's why:

Will this get noticed? Maybe not. If it is, can you get sued? Definitely. You don't need a justification to sue someone, just a lawyer who'll file the paperwork. (Or, more likely, write the cease-and-desist letter.)

Just for anyone who may not know, here's the difference between trademark and copyright:

From uspto.gov:

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.

A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

You've suggested using a trademarked thing (Spidey) in your book. You're gonna mention how he made his own web-spinners? That's a copyrighted story, but a snippet of something or a reference to it is probably fair use... but companies have sued over less.

Is this right? No. Art of any kind is a dialog, and this kind of lopsided copyright policing is harmful to artists. The situation is incredibly lopsided in favor of corporations with legal staff that defend their trademarks. This is probably why a lot of writers use knockoff versions of works they reference: "I was reading the Harry Porter books with my daughter when we got distracted by a song by The Rolling Rocks on the radio."

However:

One of the best sendups of Star Trek was "Galaxy Quest," an incredibly respectful, loving sendup of the Trek world without Spock or a single Klingon. It's been my experience that nearly any robust story can survive having cultural references bowdlerized.

What is it you want to reference in Spider-Man? You can find that thing and cut to what you really wanted to say. It might even be better than the original reference.

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