A Proposal for the Defense of Fair Use

In this essay I'm going to discuss Copyright and Trademark laws and their relation to the First Amendment. In particular, I am going to address what I see as a looming threat to the doctrine of Fair Use.

Contrary to what many Americans would like to believe, the articles of the First Amendment are not and have never been absolute — many people are familiar with Supreme Court Justice Oliver Wendell Holmes' example of yelling fire in a crowded theater. Over the years, the Court has provided a list of types of speech and expression that are not considered protected.

Among the forms of speech that have not been considered to be protected are slander (meaning verbal defamation), libel (meaning written defamation), obscenity (which is distinguished from pornography), sedition, incitement to riot and so forth.

It should be observed that none of these exemptions have gone unchallenged and that considerable effort has been expended to precisely define them and to determine whether or not they should be Constitutionally exempted. There are libertarian absolutists who insist that a plain reading of the First Amendment does not broker any exceptions to its protections and that, furthermore, any restrictions of the speech of a free populace must, by definition, compromise its freedoms. Most ethicists, however, accept that such an absolute stance in untenable in the face of the manifest demands of society.

Copyright law is a particularly thorny issue. Just as patents are intended to drive innovation by giving an inventor a temporary exclusive license to his invention, so is copyright intended to drive creative expression by giving an author or artist exclusive license over his intellectual creations. Originally, the terms of control were for the lifetime of the author. In the 19th century, this was extended to the lifetime of the author plus fifty years in order to provide for the estate of a work's creator. Recently the Sony Bono Term Extension Act has extended this duration an additional twenty years for a sum total of the life plus seventy years (a term that many feel exceeds the intent of copyright).

Trademarks are similar to copyrights except that where a copyright is a work unto itself a trademark is used to specifically identify a company or a product. A trademark can be almost anything, including any word, phrase, symbol, design, sound, smell (!), color, product configuration, group of letters or numbers, or combination thereof, so long as they are used by a company to identify or distinguish its products or services. Although trademarks, in the United States, are granted for an initial period of ten years, so long as they are consistently used for a minimal period of five years, they can effectively be extended forever.

Copyright law, trademark law and the First Amendment have any an uneasy relationship with one another. A naïve reading of the First Amendment would suggest that the very notion of copyright legislation is patently unconstitutional (again, a perspective that certain Libertarians embrace). As I've noted, however, the First Amendment has never been understood to be an absolute stance and copyright law is a perfect example of the limitations of the First Amendment. That said, a copyright or a trademark is not, itself, absolute. Although I may not profit, outright, from another person's work or utilize another entities trademark without authorization and compensation, there are circumstances where I can legally reference a representative part of a person's work or an entities trademark without violating the terms of copyright or trademark. The terms that allow me to do so are called the terms of Fair Use.

There are two basic forms of fair use that are recognized under the law. The first form is that of allowable citations of another agents work or mark. If I am discussing McDonald's marketing campaigns, I am perfectly within my rights to reproduce their logo and to quote various slogans that they have employed over time (e.g., "You deserve a break today") in spite of the fact that their logos and their slogans are protected trademarks. In like measure, if I am reviewing a book, I may freely quote representative samples of the text of the book even thought the whole of the text is protected by copyright law. Although, as with any law, there are grey areas in determining the precise boundaries between representative citation and unlawful plagiarism, the general distinction between legal citation and unlawful reproduction is fairly well understood.

The second form of fair use takes form of artistic representations. It should be emphasized that this protection specifically includes works of satire and parody. If I'm making a collage for a work titled "Globo-Corporate Christ", I am allowed to depict Jesus crucified to the McDonald's arches (the issue of my good taste is another matter). Likewise, if I were to write a satirical picture-book that had Dorothy and crew from the Wizard of Oz going to see the Wizard of Gluttony, I would be free to portray them passing through the famed arches.

Artistic and satiric depictions are exempted by Fair Use for a good reason. Art and especially satire can be a potent form of political and social commentary. Jonathan Swift proved this when he wrote "A Modest Proposal" which was a scathing essay directed against English treatment of "the Irish problem" which proposed that Englishmen should cannibalize Irish children (many people did not realize that it was a satire and condemned Swift for a monster). The ability to depict and even mock public and private institutions and symbols is an important part of the public dialog that contributes to the functioning of a free society.

Naturally corporations are loath to see their trademarks misappropriated and authors (and other artists) are reluctant to allow their works to be mishandled. Fair Use is not an absolute protection. I can't slap the McDonald's logo on my restaurant and claim that I'm simply making an ironic comment on the decline of mom and pop business in the United States. However, because art is a very subjective thing, it can be difficult to distinguish the line.

Recently, Mattel has launched several lawsuits in attempts to defend its Barbie brand name. One suit was against the Swedish pop music group Aqua for their song "Barbie Girl". The song has the refrain, "I'm a Barbie girl in a Barbie world &mdash life in plastic, it's fantastic" as well as the line "You can bush my hair, undress me anywhere". Mattel contended that the song was doing harm to the Barbie name and that their use of it constituted trademark violation. The courts ruled that the song was, indeed, a legitimate social commentary and that it's use of the Barbie name was protected. Likewise, the courts have ruled in favor of artist Tom Forsythe, who posed Barbie dolls in provocative stances, as well as artist and vendor Paul Hansen for such creations as "Transvestite Ken" and "Big Dyke Barbie". On the copyright side of the fence, the estate of Margaret Mitchell, author of Gone with the Wind, sued Alice Randall to prevent the publication of The Wind Done Gone, which is a parodic sequel to the original book.

By and large, when such cases have reached court, the courts have been sympathetic to artists and satirists, which is not terribly surprising. When it comes to First Amendment issues, the courts have tended to error on the side of caution. Plaintiffs bringing suit against artists have to demonstrate not only that their properties are being used without authorization but that the value of their properties are being diluted and that the artists in question are not engaging in valid artistic expression. These are very high hurdles to cross and one might wonder why organizations such as Mattel don't simply look the other way when it comes to such cases.

The directors of a corporation have a legal obligation to do everything in their legal power to maximize the worth of their corporation. This is known as the rule of due diligence. If the shareholders of a company believe that the officers of a corporation are not exercising due diligence they can launch punitive law suits of their own. A corporation that fails to aggressively defend its brands against dilution of value can easily be charged with a failure of diligence. This is especially true given that the potential cost of failing to defend a brand name is not merely some abstract loss of value but, in fact, the loss of the brand name altogether. If a trademarked name enters the common vernacular, the courts can rule that the name has become generic and is no longer owned by the company that originated it. Aspirin is the classic case of a brand that has become a generic term (other examples include cellophane, linoleum, dry ice, and spandex). As such, it is both rational and prudent for a company to aggressively pursue infringement cases.

So, you may ask, what's the problem? Corporations do their duty to protect their properties and the courts act to clarify where the boundaries lie, generally favoring artists over corporate interests. It would seem like the system works. The problem is that the system works only if you can afford to participate in the system. It costs money to launch a lawsuit but it also costs money to defend yourself against a suit. When the artist in question has the backing of a major music label or can afford the out of pocket expenses on his own, this may not be a problem but many artists don't have the funds to defend themselves even if they are clearly in the right.

A few months ago, the on-line comic strip Penny Arcade ran a cartoon involving the character of Strawberry Shortcake. The cartoon was actually a commentary on the game developer American McGee. American McGee is known for a successful game based upon the premise that Alice, from Alice in Wonderland, had grown up and ended up in a mental institution. In the game, she was freed from the institution and had to fight her way through a nightmarishly transformed Wonderland. Recently, American McGee announced that he was going to provide a similar treatment for The Wizard of Oz (the development of the game has since been put on hold). The author's of Penny Arcade thought that this was a bit creepy and decided to satirize it with a comic titled "American McGee's Strawberry Shortcake". The comic depicted a very adult and provocative version of Strawberry Shortcake holding a whip and sitting astride another character and text indicated her new, sinister nature.

The clear intent of the comic was to mock American McGee for using icons of childhood innocence and distorting them into something with a violent adult orientation. The very next day, the authors of the comic got a cease and desist letter from American Greetings, the holders of the Strawberry Shortcake trademark, that warned them that if they did not immediately remove the offending image they would be served with a lawsuit. Although Penny Arcade is a relatively successful web comic, the owners of the site had neither the funds nor the time to contest such a suit so they complied with the request for removal. It is likely that a court would have ruled in their favor but the consideration is moot. The simple threat of a lawsuit was enough to stifle them.

The courts have consistently ruled that a law can fall afoul of the First Amendment even if it doesn't directly restrict speech. So long as it has a "chilling effect" on speech, it can be construed to be violation. As such, the government can not simply tap the phone lines of citizens at random and set up microphones in a park in an attempt to capture illicit speech. What happens, however, when the very threat of lawful litigation has such a chilling effect? Clearly we can't forbid companies from trying to protect their legitimate interests. To do that would open the door to scoundrels who would deliberately and maliciously steal the intellectual properties of others.

Proposals have been put forth to legislate a solution to this problem with such ideas as "loser pays" schemes and punitive actions against suits deemed frivolous. I think that it is, in fact, important that such cases do reach the courts for the simple reason that every case that goes before the court helps to define where, exactly, the boundaries between legitimate artistic expression and malicious intellectual theft lie. The courts are an important part of the Constitutional process and attempting to circumvent them through preemptive legislation strikes me as an ill advised concept.

I feel that a better result can be found by appealing to the private sector. The ACLU is famed for defending the Constitutional interests of the poor, the unpopular, and the disenfranchised. I think that the ACLU's mission is too broad for this particular task but I think that it would be in the interests of artists, everywhere, to set up a legal defense fund that would be able to specifically address such cases as these. One might propose a dues system where artists interested in having protection could pay into the fund. I think that a better system would be to have a philanthropic trust set up which would defend all meritorious cases regardless of any membership considerations. In such a way, the interests of free artistic expression would be preserved uniformly and upon a level playing field while corporations would still be able to exercise due diligence in the protection of their properties. Such a thing would, I believe, be the best of both worlds.