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Obviously, you're not allowed to use trademarked characters like Superman or Batman in your published works. If I wrote a novel about Superman fighting Lex Luthor, I could get sued.

But what about referencing those characters in a real-world context? If I wrote a book about a child fighting to survive cancer and his family using Superman as a central role model to motivate him, would that similarly break the trademark? What about a book that has nothing to do with Superman or Batman, but which features a scene where two friends casually discuss which superhero would win in a fight?

Is there a distinction between "using" a trademarked character and "referencing" that same character? If so, what is the dividing line?

UPDATE: Thanks to a very helpful comment, I've edited my post to change "copyright" to "trademark." I'd still love for someone to help me navigate the possible repercussions, though!

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Actually, you can't copyright a character. You can only trademark them. (...and in this case I can't help you. While I understand Copyright with its Fair Use pretty well, Trademark Law is utter mess, including paradoxes like people forbidden to use their own names, or trademarking a color.) – SF. Dec 6 '13 at 0:34
That's an interesting twist... Well thanks for the tip! If nothing else, it'll help me focus my search. – Nerrolken Dec 6 '13 at 0:36
@SF Actually, characters can be subject to copyright, as well. If you wrote a novel with the characters from the Harry Potter series, for example, by using the same descriptions and distinctive elements (even if you call them different names), that would be an infringement (Parody would be an exception to this) – Cliff Hangerson Page Dec 6 '13 at 15:05
up vote 5 down vote accepted

You can use the trademark name without problems while you're not doing a story about that character, i.e."He was as strong as Superman" is fine.

For further information, I recommend you this article: http://www.rightsofwriters.com/2010/12/can-i-mention-brand-name-products-in-my.html

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If writing practice is the same, you would inform the publishing house when submitting your manuscript that you had referenced trademarked characters, and they would take it from there.

FYI the same goes for copywrited material - at the front of loads of Stephen King novels you see thank-yous to writers of songs he's quoted.

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