Using Famous Characters

I am a mom and first time author ready to submit my picture book manuscript. I find myself sick to my stomach with anxiety over who to send this to. It's called SUPER MARIO'S LITTLE BROTHER PROBLEM*

I think my manuscript falls under "fair use," and I may not need the permission. But either way, I am hoping the mission of my book may supersede this concern. My mission is to ensure that children, like my older son, know how special they are, how loved, how they are limited by nothing; not to promote Super Mario Bros.

–Dede, from FL

Okay, I spent a some time thinking about this, and simply put, I don't think the Mario Bros. issue is something most publishing houses could get over. I admire the mission of the project. After all, Luigi is a total copycat and needs to get his hand out of Mario's cereal box (proverbial cereal box).

But the fact is that your project promotes Mario, whether you like it or not. It's a Mario Bros. product. Mario's trademarked face would have to be on the cover, and every page of the book. That's not a permissions or fair use issue, it's a straight up licensed product of Nintendo.

Let me explain:

Permissions are a major part of the publishing world, and very often, they go unmentioned, because, well, they're boring. But here's the gist. Anytime you see a character in a novel quoting a poem he loves, or a chapter opener that features the lyrics to a song, or an epigraph with a chunk of dialogue from another book—all of those were printed with permission from the original copyright holder (usually either the author, or the publishing company).

In publishing contracts (especially for nonfiction titles), the permissions for a work are the responsibility of the author. Our legal department asks for all the forms to be turned in BEFORE we actually accept a manuscript ("accept" being a technical term here, for an official stage in the publishing process). Permissions can cost anywhere from nothing to a cajillion bucks. The rights holder decides. Once, we had to change the lyrics in a novel because the band wanted 50k for four lines of text. That's extreme.

Usually, you can get away with 50-200 bucks for a quote, 300-500 for a full poem, and anywhere from 250-1000 for an interior photo.

But those numbers are ballpark and I'm no lawyer. Like most things, it's a negotiation. If someone hears that a "big and rich" company wants the rights to something, they may ask for more money than if, say, a poor young first-time writer trying to make a living. You get the idea.

But what permissions DO NOT cover is the use of an intellectual property as the PRIMARY content. No company would ever allow it. You'd basically be asking to compete with their products using their own products. For example, in THE BRIEF WONDROUS LIFE OF OSCAR WAO, Junot Diaz quotes Galactus for his epigraph. That's the kind of thing Marvel would give permission for. But if he asked for permission for a book called, THE LONG WONDROUS LIFE OF GALACTUS, PLANET EATER, he'd never get it.

After all, that's what Marvel does. They publish books about their characters. They'll license Macdonald's toys and video games all day, every day, but they won't let someone come along and publish competitive products for a flat fee with no percentage of sales.

Overall, Dede, I wouldn't acquire this project on the hope that Nintendo would allow it. My guess is that they wouldn't. Even if someone had a crack legal team and decided to go forward based on some variation of "fair use," "parody," or "public figure," arguments, I don't think it would be wise. The idea relies so heavily on the creative achievement of Super Mario, and I wonder if there would be a negative reception to it. No editor wants to publish second-hand material.

But you might be overlooking one thing. You don't need the Mario Bros to tell your story. Why not create your own team of brothers (with an older one who's awesome and a younger one who's a "weegie")?

* Character and Title changed in order to retain privacy, and so I could get in a jab against Luigi.