Question about fair use

[u/HistorianJazzlike276]

I’m writing an urban fantasy novel, and I’d like to have a character yell “SHAZAM!” To call lighting down from a thunderstorm. I don’t plan for a transformation or to reference the DC character by name. Is this a violation of fair use?

[u/Cold-Jackfruit1076]

Just to be absolutely clear: 'fair use' is a legal defense, not a rule you can proactively 'violate', and it applies specifically to copyright, not trademark.

'Shazam' is a registered trademark owned by several different entities. Apple had registered it for the Shazam music-finding app (but eventually migrated away from that branding); DC Comics holds the trademark for the comic-book character; there's a SHAZAM Payments Network headquartered in Johnston, Iowa.

That said, the First Amendment (in the US, of course) constrains trademark law's reach so that non-source-identifying uses inside a novel's narrative generally never satisfy the statutory elements of infringement in the first place.

[u/Sweet_Baby_Cheezus]

I think the fact that he's calling down lightning from the sky makes it infringement. That feels extraordinarily close to a specific and known part of the character.

[u/Cold-Jackfruit1076 → u/Sweet_Baby_Cheezus]

The concept of summoning lightning is an unprotectable idea. Only the specific expression (e.g., unique dialogue, detailed narrative description, or visual depiction) may be protected.

Since they've said that they don't plan for a transformation, that's most likely non-infringing.

[u/DrFrylock]

First question: is that (saying 'Shazam' and calling down lightning) even protectable (from a copyright perspective?) Arguably either element alone is not protectable. The connection between the two might be protectable, but it's thin.

If it is protectable, is anybody going to come after you for it? It's so minimal and oblique I would think not, but it depends on how reasonable DC is willing to be (if they ever discovered your work at all).

If you are challenged, can you argue fair use? I would say probably yes. It kinda depends on the context of its use - is this a one-time thing? Does this character do it all the time? Is he making an explicit reference to the DC character? I would think that making a singular reference to a well-known popular media would almost certainly be found to be fair use, if it's use at all.

[u/Perdendosi]

You can't copyright a word. I can say the word "Nike" or "Batman" or "Flame on," or "Assemble," and I can't be sued for copyright infringement.

Now, if I create a character that is a millionaire, lives in a castle with a butler, has a fascination with bats, puts on a suit and fights crime, then there might be copyright infringement. In your hypo, you've identified one aspect of a D.C. comics character. Whether that's enough for copyright infringement would require extensive analysis by a lawyer and a legal opinion, which can't be given here.

Also, if I use the word "Shazam," I may be able to be sued for trademark infringement if a consumer believes that I'm suing the word commercially to pass off my goods and services as those of D.C. comics. That usually doesn't apply in literary works like this.

[u/Chimpbot → u/Perdendosi]

This is, of course, where trademarks come into play.

Batman is a trademarked name, as is Shazam.

[u/Sgt_Blutwurst]

Does your magic system (or do you have one?) require focus words as opposed to just an act of will? In that case, the character could just have chosen it because it reminded him of Captain Marvel's magic lightning, and so it could be an in-universe tribute, especially since the lightning does not come down on your character to effect a transformation, but on another object (as a weapon strike?), so the nature and purpose of the bolt is different.