Legality over using a REAL museum and REAL artifacts in a fictional - HEIST novel

Question

I have a question regarding the legality of using a real museum and real artifacts in my Heist book which is almost ready for publication. Initially, it will be self-published via the amazon kindle route.

The book involves a criminal gang who steal well-known artefacts from a UK museum. I have contacted the museums press office and explained the premises, and asked them if they would grant permission, or point me in the direction of someone who can. But unfortunately it appears from their non-response they don't want to play ball.

Having read dozens of very successful fictional novels which involve the theft of real artifacts and antiquities, from both museums and private collections around the world. I'm wondering how the authors get permission, or if indeed they do need permission to base a novel around places and objects that are clearly in the public domain. Maybe it's their publishers who do this, or their agents?

I would be extremely grateful to hear from anyone on the Stack-Exchange who has experience with this kind of issue.

Many thanks in advance. Jon

Answer 1

Thought experiment: If Dan Brown had required the permission of the Vatican to publish The Da Vinci Code, do you imagine it would ever have been granted? Do you think the Pentagon or the White House would ever give permission for most of the novels set there?

Ergo, you don't need it.

If you want your work to be accepted for publication:

• You can't steal copyrighted work, though you can use it within the bounds of fair use.

• You can't defame a living person. (Though that is a civil matter, not a criminal one, in most jurisdictions)

• You can't encourage hatred of certain groups (though others are just fine).

• You cannot violate the official secrets act or whatever protects official secrets in whatever jurisdiction you live in (or ever intend to visit). (Unless your publisher is Wikileaks.)

But these constraints aside, in any country that still clings to the vestiges of the idea of free speech, you are still free to write about things in the real world if you want to.

Oh, and under no circumstances will an agent or publisher get any permissions you might need for you; that is entirely on you. In fact, unless there is the promise of a mega payday, no publisher or agent is going to touch anything that might attract a lawsuit or criminal investigation in the first place.

So stop worrying and submit your manuscript. If they think there is any kind of problem (supposing it is good enough for them to read more than the first page) they will let you know. And if any permissions are needed, they will tell you exactly what they are and expect you to go get them.

Answer 2

Refer to this Article.

It should be perfectly fine to use a real life example, as long as there are no legal issues with regards to it. As long as you're not attempting to damage its reputation - or revealing actual ways of breaking into their museum - it should be perfectly fine to use their name.

However, think about it this way to be on the safe side: Is it completely necessary for their name to be on the book? Or will it really matter? How many of your readers will actually understand the context or know about the museum and this artifact beforehand, or can you create a fictional museum and artifact in your world and effectively tell the same story?

Answer 3

It does seem like a gray area, and I would guess that what's right or wrong varies massively. I've seen a lot of stories show heists in museums with IRL artifacts. The Hope Diamond or Crown Jewels, as well as many works in the Louvre seem to be popular targets. Harry Dresden stole the Tyrannosaurus rex Sue from the Field Museum in Chicago. Black Panther, for example, had Killmonger steal artifacts from The British Museum, and it was explicitly The British Museum because Killmonger had a long speech about some of the museum's controversial policies. However, whether that's legal or whether the museum could turn around and sue you for defamation is a gray area.

What would be a make-or-break thing in such a scenario is if you're painting the museum in a bad light, and how close to the real security systems your story is. If you paint the museum as corrupt, incompetent, etc., the museum is more likely to take offense and sue you. Similarly, if you give people a real guide to circumventing security systems and quasi-successfully steal artifacts from a museum, complete with details of room layouts to avoid security cameras and such, that might be grounds for a lawsuit.

One thing a lot of museum stories do is make fake museums that don't resemble the real thing at all. For example the museum in the Night at the Museum series looks absolutely nothing like the actual American Museum of Natural History in New York City. The AMNH lacks any wax sculptures of humans (so no miniature cowboys and Romans, no Sacagawea, and no Robin Williams-as-Theodore Roosevelt), has no mummies on display aside from one of a duck-billed dinosaur, the "gum-gum" moai seen in the film is actually a replica made of plaster, and the layout of the museum looks nothing like the real deal (for starters, the entry rotunda of the AMNH is four times the size of the one shown in the film and has an Allosaurus and Barosaurus on display, not Tyrannosaurus rex). Some of the museum's displays are famous throughout the world (including the Allosaurus and Barosaurus display, the taxidermied elephant and gorilla displays, the blue whale in the ocean hall, and the Williamette meteorite), and pretty much none of them show up in the films. The museum in general is a lot bigger than the movie presents it as well, the bare-bones security guard force is plot relevant but the AMNH currently requires 186 guards to keep the entire faciity patrolled because it's just so big. The thing covers an entire city block in New York City. A lot of this is probably to avoid potential lawsuits, since the AMNH is technically a privately owned organization rather than a public facility.

So I think a lot of it depends on how you present the museum, in how much detail do you show the museum's inner workings, and how closely does your fictional depiction of the museum resemble the actual thing (including its security systems).

Answer 4

Institutions protect their market position through the use of the Trademarks. If the museum in the setting of your story has trademarked their name you'll need to ensure your work is encompassed by the Fair Use Doctrine for Trademark.

Titles of objects in a museum, like the Mona Lisa and the Hope Diamond or Andy Warhol's Campbell Soup Can paintings, are not protected by copyright. If the works are new enough, the image is protected by copyright just not the title.

The artist, or the artist's estate may still hold rights to the use of the artist's name, but that seems governed by fair use.

This is not legal advice. That costs money and this is free. And, it only applies to the USA.

The fair use of a Trademark in expressive works is a legal topic that has made it to the Ninth Circuit -- one step below the Supreme Court.

Under the Rogers test, the first inquiry is whether the use of the third-party trademark has “some artistic relevance”. The threshold for this test is extremely low; if the level of artistic relevance is near zero, this is satisfactory. If there is greater than zero artistic relevance in the use of the third-party mark, the next analysis is whether the use of the third-party mark explicitly misleads as to the source or content of the trademark.

There has been a recent modification of the Roger's test, but it doesn't apply to your question. For it to apply the connection between the trademark product name and the company needs to be effectively synonymous -- Coca-Cola for instance. But since you are already using the institution's name this is void.

The reason why might be relevant for you is because the Louvre filed for trade mark protection for its name early in 2021. They did this to protect the market value of the merch that they sell to fund the operation of the museum. The COVID-19 Pandemic of 2020 put the hurt on ticket sales. It is easy to imagine that other museums might do the same thing or have already done it for merchandising is as American as apple pie and preemptive war.

More than likely, people might to decline to publish your work since they don' want to hire a battalion of Lawyers to represent them in an expensive lawsuit because your sense of artistic integrity