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Barcoded EarthWhat Max Reckons


Sat 18

Corporate Blasphemy

What Max Reckons In many religions, it’s forbidden to speak the name of God. Or at least, the manner in which you can speak it is restricted: for example, Judaism forbids defacing the written name of God, and most prohibit the use of God’s name in a derogatory or insulting manner.

I thought about this when I heard about H.R. 683: the Trademark Dilution Revision Act, which was passed by the U.S. House of Representatives last year and is now headed for the Senate. The most interesting part of this bill—to me, at least—is that it may make it illegal to use trademarked names in fiction. So I might henceforth be unable to publish a novel like Syrup (which is set partly within Coca-Cola) or Jennifer Government (which features Nike, McDonald’s, and others).

Many people seem to think that’s illegal already. When I was writing Syrup, I was often told it would never be published until I took out all the real company and product names. I remember one guy in particular telling me the “Golden Rule” of fiction writing: “Never use a Coke can as a murder weapon.” Because, apparently, Coke would descend on you with an army of lawyers. You could only get away with it, he said, if you used the product in a positive way—for example, your hero loves drinking Coke. But he doesn’t use it to kill anyone.

This sounded ridiculous even at the time. I wasn’t pretending that my novels exposed actual events that had taken place in Coke or Nike; I was just using them as a setting, in the same way I used Los Angeles and Melbourne. I could have invented fictional companies, just as I could have invented fictional cities, but then I’d also have had to work in descriptions and history to build up in your head the kind of company or city I wanted you to see. Coke, Nike, L.A., and Melbourne were all convenient shorthand.

And sure enough, I didn’t have any legal issues in the U.S. with either Syrup or Jennifer Government. In both cases the publisher wanted a legal disclaimer pointing out that they were works of fiction and not based on real events, but that was it. We were never contacted by any company and never sued.

(Things were different in the UK, where free speech laws are weaker. Syrup has never been published there, and the publisher got more and more worried about Jennifer Government the closer we got to publication. Eventually they got a whole bunch of lawyers together to come up with a legal strategy, and this was: wait six months and see if anyone sues the American publisher first. If you had gone to law school for six years, you too might be able to come up with brilliant tactics like this.)

Part of the reason Syrup and Jennifer Government were able to be published was trademark law. This allows one company to sue another if they think they’re using a confusingly similar name or logo; in essence, the goal is to prevent customers from being deceived by imitators. But that’s all: the law contains a specific clause—a clause that H.R. 683 will rewrite—denying companies the ability to block non-commercial uses of their name, such as when it’s incorporated into a novel.

The current situation is exactly as it should be. I don’t believe I should be allowed to deliberately make up lies about companies and pass them off as the truth, nor start selling my own brand of sneakers called “Nike.” But if I’m writing a novel about cola marketing, why should I have to pretend that Coke and Pepsi don’t exist? Companies have made themselves loud, intrusive parts of society; why should artistic depictions of the world have to scrub out any unsanctioned mention of them?

But this is exactly what companies want. They spend billions of dollars to get their names on our lips and their logos in our eyes, but letting us talk about them is dangerous: we might say something they don’t like. They want what Naomi Klein calls the “one-way conversation:” to be able to speak to us—endlessly so, through billboards and television and radio and product placement in your movies and the back of your bus ticket—without allowing us to speak back. Unless, that is, we’re saying positive things about them; unless we’re “on message.” And so they seek complete control over their names, to ban us from uttering them unless it is to speak praise.

Companies used to be pieces of parchment. Then they gained more rights and more protections until they had the legal status of a person; you can now be sued for defaming them. But that’s not enough—of course not; nothing will be enough so long as their inbuilt goal is to endlessly expand. So now they want to be more than a mere person. They want the kinds of rights that have previously been reserved for the superhuman. They want to be gods.

Note: There are some interesting articles on H.R. 683 at Public Knowledge, Ars Technica, and Public Citizen.