Fair use policy and cross referenceses in novels

[Guardian]

Is it possible to mention names of other works in your work as cross references? I'm asking this, because my work has the following lines (See below), as the character is continuously thinking in cross references. The story plays in 1936, so to make the story a bit more believable and realistic I'm using various cross references from that era in the thoughts of the main character. But my editor says she has doubts regarding some of them as they may be not falling under the fair use policy (The Popeye reference for example as they're trademark elements of Disney.). So I thought I rather ask these ones (Unedited examples, so please ignore the grammar.)...

"... she couldn’t resist to tell me, she is cheated me with Popeye, the pride of the Navy."

"In my mind I had sworn revenge. But not on Sarah. On Popeye."

"... maybe I should say thanks to Popeye and his new Olive Oyl."

"Just like that strange stupid white rabbit in Alice in Wonderland, my mind cries, shouts after every step; I shall be late."

"... just like Hollywood’s tough guy, George Raft on my 1934 Ardath Tobacco trading cards."

"It was Edward Bulwer-Lytton’s dark and stormy night; a really cliché stormy autumn night."

"... the seducing and stunning gaze of Marie Wilson, Joan Bennett, Miriam Hopkins, Loretta Young, Carole Lombard and the other enchanting actresses on my film star tobacco cards…"

"... the smugglers’ Johnnie Walker, or as I called Frankie’s brew, the Frankie Stationary..."

The character is also referring to Hoover as Skirty Hoovie all over the story by some reason.

So my question is; do these lines are falling under the fair use policy, are they valid cross references, or not? Do I have to change any of them? If yes, which one?

[polymath]

"... she couldn’t resist to tell me, she is cheated me with Popeye, the pride of the Navy."

Reads to me like irony, but open to question. Parody for cultural and/or social commentary is an accepted exception to the Fair Use doctrine. Perhaps passing the purpose and intent test of using borrowed material. However, trademark laws may apply. The Popeye trademark as I understand it is owned by Turner Entertainment, a Time Warner subsidiary, properties distributed by Warner Brothers. Trademark infringement is a trickier issue. Though practice, custom, and habit usage commonly borrows Popeye and related character trademarks for commentary and hasn't yet drawn Time Warner's ire. Tasteful usage may pass unremarked. Permission may be indicated.

"In my mind I had sworn revenge. But not on Sarah. On Popeye."

Same but a little more tenuous irony.

"... maybe I should say thanks to Popeye and his new Olive Oyl."

Same but a little less tenuous irony.

"Just like that strange stupid white rabbit in Alice in Wonderland, my mind cries, shouts after every step; I shall be late."

Metafictional comparisons are common Fair uses for fiction.

"... just like Hollywood’s tough guy, George Raft on my 1934 Ardath Tobacco trading cards."

Same, though the metafictional comparison is more obscure.

"It was Edward Bulwer-Lytton’s dark and stormy night; a really cliché stormy autumn night."

Same, well-known though. Interesting commentary too, an artfully used cliché calling artful attention to and commenting on clichés. However, clichés calling attention to clichés are becoming cliché.

"... the seducing and stunning gaze of Marie Wilson, Joan Bennett, Miriam Hopkins, Loretta Young, Carole Lombard and the other enchanting actresses on my film star tobacco cards…"

Same, metafictional comparison, though the movie stars are becoming obscure.

"... the smugglers’ Johnnie Walker, or as I called Frankie’s brew, the Frankie Stationary..."

Tenuous. Johnnie Walker's whiskey trademark protections are a closely guarded commodity. However, product placement is promotion if tastefully done. Permission might be a best practice.

The character is also referring to Hoover as Skirty Hoovie all over the story by some reason.

J. Edgar Hoover's eccentric behaviors are fair game. He was a public figure and his eccentricities are widely known. He's dead too. In all regards, he enjoys no protections under privacy laws, slander and iibel and defamation of character laws, etc.

[Guardian]

Reads to me like irony, but open to question.

Yes, it's an irony.

However, clichés calling attention to clichés are becoming cliché.

I know. This is how this character is thinking. It's a character trait.

But if I understand everything perfectly, the only so-so part is the whiskey part, but the others are in the green.

Thank you very much, Polymath!

[polymath]

Regardless, if offered and accepted for publication by a traditional publisher, their legal department will vet usage and recommend as needed whether to seek permission. If self-published, it's a best practice to vet with a reputable intellectual property law firm. It's a best practice to seek permission regardless. Better to ask permission up front than beg foregiveness after the fact, after the lawsuits start flying.

[Guardian]

Thanks. I already sent a letter to WB and JW to clear this up and ask their permissions if necessary.

[Quill]

In today's litigious society it is probably safest to fictionalize the names of ALL products, persons, businesses, cities, towns, books, magazines, films, songs -- in short, ANYthing with a brand name or proper name.

[Guardian]

Quill. Yeah. I know the present litigious society. But if I want to create a historically accurate atmosphere for the novel and present what has happened there in the past, how things has looked like, what has changed, I won't use fictive names at all, even if it's only a 17 pages long short story, like this one. I rather ask permission where it's necessary.

[Sleeping Beauty]

I've got a similiar question, so, rather than create a wholly unnessesary thread -

My WiP quotes quite a few different poems, and in the cases of W.H Auden, Oscar Wilde, and Edgar Allen Poe, I've used particularly substantial sections. Are either of those writers' works in the public domain? Or is that something I'd need to be wary of while shopping to agents? I'm sure having to chase up various copyright holders would only seem like more work to many of them.

Quill, does that mean, say, if my MC was waiting for the bus and reading Harry Potter, I couldn't actually write something like, "He was reading the seventh Harry Potter novel and listening to the Pulp Fiction soundtrack on his iPod."?

(Not that I'd write that. It's a terrible sentence.)

But I have published a number of short stories with pop- and cultural references in them. It is a different matter with novels? Now I'm confused.

[Quill]

Quill, does that mean, say, if my MC was waiting for the bus and reading Harry Potter, I couldn't actually write something like, "He was reading the seventh Harry Potter novel and listening to the Pulp Fiction soundtrack on his iPod."?

I'm not qualified to give legal advice. Just saying it's ultimately safer to fictionalize everything if that's possible to do in one's story. Just like in newspaper cartoons, where they'll have the family going to McDoodles instead of naming it McDonalds. People get the cultural reference.

[polymath]

W. H. Auden's work is probably still under copyright. Anything published before 1923 is in the public domain. Oscar Wilde and Edgar Allan Poe's works, unless published posthumously after 1923, are in the public domain.

First time traditionally published authors are an unknown marketplace quality. The effort to vet and acquire rights permission for borrowed work used in a publication is taken into account when considering whether a narrative's qualities outweigh its detractions. Not a best practice for a struggling writer seeking a breakthrough debut.

Cultural references are accepted practices so long as they don't infringe upon intellectual property rights. The Harry Potter and iPod references for example. Naming real-world items do not in and of themselves infringe. Titles are not copyrightable, patentable; trade names, brands and such may be or may be not protected by trademark. Nor are ideas subject to protection.

The iPod reference in that context doesn't seem to me a negative commercial impact on the brand's trademarks. Nor any particularly obnoxious social or cultural commentary, which may or may not pass muster regardless of whether a trademark is negatively commercially impacted. Otherwise, we'd have no comic farce, parody, or sarcasm commenting on flawed products, commentary which serves the greater good's entertainment needs and persuades product improvements for the good of all.

Regardless, asking for legal advice from a reputable intellectual property lawyer is a best practice.

[polymath]

I'm not qualified to give legal advice. Just saying it's ultimately safer to fictionalize everything if that's possible to do in one's story. Just like in newspaper cartoons, where they'll have the family going to McDoodles instead of naming it McDonalds. People get the cultural reference.

Safety aside, and paying no less justice to the importance of conscientious writing practices, imaginatively creating fictional circumstances builds creative writing muscles. Consider investigating False Document topics for insights into incorporating poetry, products, and other cultural references.

[Guardian]

Quill. It seems Polymath and I was right regarding the Fair Use Policy. At least regarding Popeye. I asked King Features Syndicate and they already responded in this matter...

Just mentioning the characters (Popeye and Olive Oyl) in a novel, story etc can be done without permission. Permission is only required when the actual copyrighted artwork is being reproduced. Quoting Popeye or Olive Oyl can be done without permission but we do ask that credit is given such as “Quoted from Popeye cartoon from June 16, 2011. King Features Syndicate Inc.” (Whatever date the cartoon is from). Credit line can appear on the actual page of the quote or in a Credit Section/Appendix of the book. As long as no artwork is being reproduced, (cartoon strip, characters etc) we don’t require permission.

But as Polymath said; it's better if you ask. It's not taking much time and it's better if you know what their approach is in this matter.

[hektorkarl]

Another point of warning: the author and not the publisher often pays the costs for rights clearances.

[polymath]

I asked King Features Syndicate and they already responded in this matter...

My mistake. I thought you referenced the Popeye screenplays, not the comic strip. But you ran down permission anyway. Good on it. Though it does go to show how complicated and daunting rights permission can be to contemplate, but once it's done it's a comforting feeling to know unequivocally there's nothing to worry about.

[Guardian]

My mistake. I thought you referenced the Popeye screenplays, not the comic strip.

No problem. I also believed I must ask permission from Time Warner or Warner Bros, but my editor looked after it and she told me King Features Syndicate has the overall rigths.

but once it's done it's a comforting feeling to know unequivocally there's nothing to worry about.

Yep. It's really comforting, especially as I don't have to rewrite those lines.