Using Ad Slogans as Chapter Headings

Dear Rich: I work for a publisher and recently ran across a manuscript for a fiction book that used advertising slogans for chapter headings. For example, the authors used Hebrew National's, "We Answer to a Higher Authority." The authors thought it was fair use but since it's an advertising slogan is that also considered fair use? I told them to check with an attorney but they decided to just remove them.  The Dear Rich Staff gets so sad when someone's creativity is stifled by legal uncertainties. The short answer is that you're okay to use slogans in fiction. However, avoid using the slogans in the book's title or advertising (that is, stay away from commercial uses versus editorial uses). The Supreme Court has defined "commercial speech" as "speech which ... propose[s] a commercial transaction."

Copyright law and fair use.  As for using advertising slogans under copyright law, there isn't a problem. Copyright does not protect short phrases and even if it did, the use you described appears to be a fair use. 

Trademark law and fair use. You can use a trademark (including slogans) for editorial or informational purposes without permission. That's because readers who stumble on a trademark within the text of a novel aren't likely to be confused into thinking that Hebrew National or Apple are sponsors of the book. There is a concept known as 'trademark fair use' that is distinguishable from the fair use defense applied in copyright law -- it's used as a defense to a claim of trademark infringement. In other words, it's sometimes asserted when a competitor uses another company's trademark to describe the goods (for example, the maker of an electric dishwasher may describe the "joy" of clean dishes without infringing the trademark JOY for dishwashing liquid). Some noncommercial uses of trademarked terms (such as described in your letter) -- though not technically trademark fair use -- are often lumped in the same category.