At what point is permission needed to reference meta-characters and works in my own?

Question

In this question it is mentioned that you can't use a character from another novel in your own novel.

But if characters in my book talk about fictional characters in other books, that seems to be ok. So for instance, if I write a book and one of my characters mentioned Harry Potter that is ok, at least according to answers to this question

But how far can this be taken in terms of meta references? In an answer to the above it is stated:

Your characters can talk about Luke, swing swords around like Luke, and watch Luke. They just can't BE Luke.

But can my characters in the show pretend to be Luke? Or, could I write a novel in which some of the characters create their own story involving Luke which, in the novel itself, violates copyright, and, again in the story, might involve some of the characters in the story getting in trouble legally for what they have done?

Assume that I'm not saying anything disparaging or defamatory. I'm also not planning on pages and pages of quoting verbatim what the people in the story are writing, trying to create a loophole. But I may need to frequently reference things from the original work and quote some things from time to time to tell the story.

For instance (and this is just something I made up on the fly for the purpose of illustration of the type of things I need to do and is not my actually story idea.) suppose I had a passage that went something like this:

The next day the gang found out they were in some legal trouble when they were served a subpoena. Dennis brought in in, frowning.

"Apparently," he said, "creating a shell of the Millennium Falcon around the pub was some kind of intellectual property theft."

Dee had dressed up like Princess Leia in a skimpy gold bikini just like in the movie except sluttier, and the suit complained that this was defaming the brand. Dennis also had the idea of giving hobos fake printed "imperial credits" to use in the bar to encourage them to drink, and in characteristic fashion forgot to find some way to actually get real money from them. The whole idea had been a smashing success, with many patrons even dressing as Star Wars characters. Everything had gone well until a little person dressed as Yoda had gotten into a light sabre fight was another patron dressed as Obi-Wan Kenobi (the older version from A New Hope, not the younger one) over an insult about his size. Despite all this, the gang in their characteristic fashion decided to ignore the summons for disturbing the peace and the subpoena for intellectual property theft and gave it to Charlie, who promptly used it as bedding for his pet rat. Mac, in the mean time, took the confiscated light saber and began sparring with an unwilling Dee, talking about how he would slice George Lucas' head off if he showed up before being reminded that Star Wars was now owned by Disney.

So in this example I am mentioning a lot of aspects of Star Wars. Later in the story, the characters might re-enact scenes from the story with alterations, although the story would just highlight it from the standpoint of the alterations and what terrible acting it was and how something they all managed to avoid going to jail at the end. In general, it seems like characters doing something illegal in my book doesn't automatically make what I am doing illegal. Would a story like this require permission?

Now there's a second part. The characters doing this infringement are actually characters from a TV show which I obviously didn't create. So I couldn't actually write this story for that reason. But what if I am writing a story about a person who is doing this sort of thing and they are asking their law professor if it is legal, and they give an example to the professor, verbatim the way I wrote it. Now is it legal in my story?

Where are the lines of when I can and can't use references to characters in other stories when there are meta levels of indirection. If this is too much is there some way I can dial it back, some line to not cross so it will work? It's not my intention to actually steal anybody else's work, but to reference it in the context of a larger story which examines the implications of such an infringement in the story itself, and using a specific work is important due to certain constraints of what the story is trying to say.

Edit: If it makes and difference, this would be a short story which would in a larger book in which each chapter had one theme, almost like mini-episodes of the twilight zone where each chapter is unrelated to all the others. So there is some concern if one chapter has issues does it "contaminate" the whole book, or conversely does the opposite happen?

Another example: if the main character is involved in some sort of dream where they exist in the setting of another work. I have seen this on TV shows, for instance on Big Bang Theory, Sheldon has a dream from time to time where he meets Bob Newhart dressed like Obi-Wan and carrying a light saber and who dispenses personal wisdom to him. But did they need permission for this?

Answer 1

Your link to the real world is here:

they were in some legal trouble when they were served a subpoena.

This is no longer referencing fictional characters but real life corporations and their lawyers.

That real-life IP holder is the same company that sued child daycare centers for displaying well-known cartoon characters, they are the only surviving mogul company from the Hollywood Studio system, and have Borg®-sorbed nearly every IP of a generation from Star Wars™ to Marvel® to McDonald's Happy Meals™ (including copyright over words that almost function as blanket terms like "droid" and "X-men"). Furthermore the Star Wars franchise is very now currently in production as a milk cow. I'd say you are picking the wrong IP battle. Don't poke the bear.

I also suggest that the more specific the references become the less clever or funny they are. A laundry list of IP merchandise sounds like you are trying to show-off your trivia research. I realize your bar example is invented for the question, but I suggest it would be funnier to make inferences to a made-up franchise that is a pastiche of recognizable tropes (Galaxy Quest). The best you can get with specific references is childhood nostalgia (which is unevenly distributed among your readers), and "tribe signaling" by pinging a specific time and location (you are alienating readers who are not your tribe). However, with inferences to tropes you get multiple associations that span generations, and creative genre-play as the reader is forced to connect-the-dots of an imaginary (but believable) film franchise.

Referencing another artwork is loaded with unintended baggage

The public opinion of famous people can take a nosedive, jeopardizing your nostalgia tie-in. Praise for a childhood icon can later look naive or just plain wrong, and anchor your work to some unintended circumstance or real world incident as public opinion changes. Beethoven dedicated his 3rd symphony to his hero Napoleon, but that didn't age well when later Napoleon declared himself emperor and went to war with Germany.

It's also important to understand the reference work's cultural cachet, and it's place in the panoply of it's genre. It's not cool or esoteric to reference mass-marketing unless your commentary is about mass-marketing:

Cosplay scenes are a complex interplay of homage and re-invention, subject to "social commentary" on the subject's current cultural status. Star Wars is not Ur, it is kitsch. Leah's metal bikini was already a tongue-in-cheek homage to fantasy illustrations from the previous generation. George Lucas did not invent the metal bikini, in fact all of Star Wars is a pastiche of serials from the 1930s-1950s (pin-up princesses in metal bikinis), re-imagined in the hyperreal fantasy illustration style of the 1970s (fantastic creatures getting in bar fights at a gritty outpost).

References to specific works tie your characters to specific class and attitudes (bourgeoisie), and it does this whether you are aware of it or not – if you are not aware then you are a probably a member of that class (tribe signaling). All of this cultural baggage is avoided by inventing a made-up franchise, which can represent whatever you want and be tailored to match your characters.

If you had 2 women in your story, which one gets to play Leah? There are no secondary female characters in Star Wars, you are stuck with Lucas's lack of imagination. But if you went back to the Ur-space opera, Flash Gordon offers a variety of raygun princesses in metal bikinis (plus good-girl/bad-girl dynamics, frenemies, and a wealth of relationship drama (not to mention BDSM subtext) that could be referenced in your story.

It's a bit of a side topic, but since the idea is that your characters are super-fans, it would be clever-er still to make your satire about fandom itself rather than showing how much of a super-fan you are of just one franchise. Instead of the cliche of faceless distant corporate lawyers (a mis-match of scale between your protagonists and their conflict), they could squabble amongst themselves about authenticity and cannon accuracy, with all the egos, moving goalposts and double-standards, and other interpersonal drama, that would keep the conflict within the characters who are present.

Answer 2

The short answer is: There is no hard-and-fast, bright legal line. If you were sued for copyright and/or trademark infringement, a judge would decide this based on the facts of the specific case.

In general, it's completely legal to refer to someone else's trademark as long as, (a) you don't water down the trademark, i.e. treat a trademark as if it was generic. The classic example of this is that you can write, "Bob drank a Coke", with a capital-C, but you can't write, "Bob drank a coke", with a small-C. You can refer to Coke as a specific product, but not as a type of product. If you said "Pepsi, RC, and other cokes", and it came to the attention of the Coca-Cola company, their lawyers would be contacting you. (b) You can't write libelous things about a trademark. If you say that Exxon-Mobil Corporation is engaged in a criminal conspiracy, they will have grounds for a lawsuit.

You get on dangerous grounds when you arguably appropriate someone else's trademark, like writing your own story using Star Wars characters.

If you made a passing reference that, "George was sued when he wrote his own story using Star Wars characters", I think you'd be completely safe. But if you wrote such a story, and then put a sentence in front of it saying, "George was sued when he wrote the following story:", just saying that a character did it instead of that you did it wouldn't protect you at all. If it did, that would be a gaping loophole in trademark law. Anyone could circumvent the law by just wrapping the whole violation in quotes and putting it in the mouth of a fictional character.

The problem for you is, there's no rule that says, say, "You can make 13 references to someone else's trademark legally, but 14 references is over the line", or any such simple rule. If you are sued, a judge decides if you crossed the line using subjective criteria.

Tangential to your question, I would say from an artistic point of view: Just don't. Tying your story to someone else's story just makes you look unimaginative. Create your own characters and fictional universe, don't try to hijack someone else's.

Answer 3

I can't answer your question from a legal point of view --or even tell you whether your question itself is legal* (!) but I can offer an alternate approach: Create an in-universe version of the movie with a different name, and differently named characters. Many shows and stories do this very effectively, and have some fun with it at the same time. It also gives you the advantage of being able to tweak details to better suit your needs. For a couple of examples: Both Black Mirror's "USS Callister" and the movie Galaxy Quest revolve around transparent parodies of Star Trek, while Insecure and Dear White People have gotten good mileage out of versions of parodies of Scandal and Empire, respectively.

* It's a question about someone else's fictional characters getting into legal trouble for appropriating other other people's fictional characters.