Corporate Blasphemy
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.
Comments
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Henry T. Monkeypimpenstein (#1212)
Location: Wellington, NZ
Quote: "Monkeypimp: Geeky enough to use his lame NS forum name here too."
Posted: 6941 days ago
Chris McBride (#1977)
Location: Belfast, N.Ireland
Quote: "Plagiarism saves thinking time"
Posted: 6941 days ago
Location: Michigan, USA
Posted: 6941 days ago
Justin Holt (#147)
Location: Rochester, NY
Quote: "www.justinholt.net"
Posted: 6941 days ago
There goes the brilliant (not really) commercial with Jackie Chan's stunt double, the Diet Coke can, getting crushed by Pepsi.
Zoomy (#1546)
Location: Outside Glasgow
Posted: 6941 days ago
Anna (#2239)
Location: New Mexico
Quote: "We are the facilitators of our own creative evolution. - Bill Hicks"
Posted: 6941 days ago
Flynn (#520)
Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 6941 days ago
http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.683:
First, there are 4 revisions. The first revision as introduced to the House had the EXACT same wording as the original Trademark Act from 1946. All subsequent versions had the Section 2 (3)(b) changed from:
"Noncommercial use of a designation of source."
to
"Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner."
Now, IANAL, but it seems that this is a "clarification" that does cover fair use "for purposes of identifying and parodying, criticizing, or commenting" on the company or what they do.
It *seems* redundant, but what I'm guessing was that there could be some non-commercial uses that weren't satire that might have been used to tear down a trademark. Not sure what they are. It looks like people will still be able to use trademarks in fiction, etc.
Also, the first section of the revision seems to be the key: "Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services"
This would seem to indicate that fair use IS covered, and it is merely described further, as long as it is NOT a designation of source for the person's goods or services.
I still don't understand *why* the clarification is necessary, but I'd love to have more IP lawyers' reads on this.
I hate the US IP law as much as anyone, but I'm having a hard time reading this clause and seeing how, say, Max using Nike in Jennifer Government *wouldn't* be protected.
shabooty (#637)
Location: D.C./V.A/M.D.
Quote: "I will shake your foundation. I will shake the f**cking rafters. Nobody'll be the same -Danny Bonaduce ....& go visit my blog @: http://www.shabooty.com"
Posted: 6941 days ago
:P
Nick Dantanavatanawong (#254)
Location: United States
Posted: 6941 days ago
Eric (#1761)
Location: "The seat of Capitalist Power
Posted: 6941 days ago
Location: Melbourne, Australia
Quote: "I'm my number one fan!"
Posted: 6941 days ago
Chris: Nah, the UK holdup on COMPANY is unrelated. There are actually no real trademarks in COMPANY.
Flynn (#520)
Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 6941 days ago
I mean, if you write a novel that is critical of corporate situations, it's intent isn't the criticism? Some lawyer somewhere believes that it's primarily a moneymaking venture and the intellectual content is just a happy coincidence?
Wow. If that's true, I think the whole "people need IP protection or they won't create anything" meme has gone way too far. I mean, people have been generating fiction far longer than there has been IP protection. I wonder if Shakespeare REALLY thought "Wow, this is a great play in my head. But if I write it, some slimy scribe somewhere may rip it off and I'll get peanuts. Best not to write it, then."
I'm not criticizing you on this one, Max. I'm just curious if the Authors Guild has REALLY moved fiction writing from primarily an art to primarily a business.
Flynn (#520)
Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 6941 days ago
I must hang my head in shame.
Karan (#1376)
Location: Sydney, Australia
Quote: "Quid Quid Latine Dictum Sit, Altum Viditur - Anything said in Latin sounds important"
Posted: 6940 days ago
Also, that's why I love the fact that you have a blog, Max. You're not just a writer within the context of the covers of your novels, but you have personality and a life developed beyond that. Keep on bloggin', man.
Keely (#1602)
Location: easy-peasy-24.livejournal.com of course!
Quote: "I always wanted to see the lights of Broadway... but then you get there and they're really kind of annoying."
Posted: 6940 days ago
Scott (#354)
Location: Grand Rapids, MI
Quote: "Max Barry tastes like awesome"
Posted: 6940 days ago
It's a sad world we live in when literature gets slowly bit by bit censorized (is that even a word?), no matter on what level.
Michael (#1299)
Location: Northern California
Quote: "Chugachugachoochoo"
Posted: 6940 days ago
The Public Knoledge site basically points out what the bill is intended for- 'dilution by blurring or tarnishing' by someone selling "McDonnel's Big Nack Burgers" (Blurring) or selling "McDonald's Big Mack Bug Killer" (Tarnishing.) All the examples listed on the site are 'commercial' ones that are playing off the trademark name for financial benifit. It does point out some of the ambiguities of the law fairly well, however- Does it mean that a guy named "Ronald McDonal" can't open his own pest control business called "McDonnel's Pest Control" because his name is SIMILAR to McDonalds?
The Ars Technica site lists a frivolous muscle tactic by Volkswagon against a man who drew a VW Bug made of bugs in his book. As far as the article reads- they never actually threatened a lawsuit- they were just trying to intimidate him from what it sounds (which, if it is repetative or overly insistant, could make them liable to get sued.)
The Public Citizen website makes the best points in regard to your worries- the fact that the bill doesn not expressly include 'non-commercial use' could be seen as an opportunity by trademark holders to sue the pants off anyone qho so much as sneezes something that sounds like 'McDonalds."
Still, this law does not exempt tm material from the fair use law, it only fails to expressly list all the provisions IN the fair use law.
If it's an opening for big business to file frivolous lawsuits- it's also an opening for them to make complete asses out of themselves. I seriously doubt any lawsuits would hold up.
Jason Wallwork (#675)
Location: Peterborough, Canada
Quote: "If it ain't broke you're not trying hard enough."
Posted: 6940 days ago
Neil (#943)
Location: Manchester, UK
Quote: ""Democracy is the worst system, apart from all the others." - Churchill"
Posted: 6940 days ago
When I was growing up, I always thought that mentions of an actual company or product in a creative work constituted advertising, à la Bulgari Connection, but I eventually realised that they weren't. What still gets me, though, is when comic strips use the Trade Mark or Registered symbols - I can't shake the feeling that they're being ironic. To me, the use of ® or in a fictional setting implies to me that the trademark in question is part of the fiction (and a few do use it in that fashion). No one would actually mention that something was a trademark if they were speaking about it in a normal context, so why do so many writers seem to feel the need to draw attention to them?
A couple more things... Michael: I recall a few years ago a restaurateur was successfully sued in the US under existing laws for calling his eatery "DiCaprio's" on the grounds that this violated Leonardo DiCaprio's right to his name, even though it's a common enough name.
There was also a case in the UK a few years ago, where French Connection UK, who took great pleasure (metaphorically speaking) in playing on the appearance of the word FCUK, applied for and were granted trademarks for all twelve permutations of those four letters. This later meant that the Young Conservatives weren't allowed to rename themselves "Conservative Future UK" as this would violate the CFUK trademark.
Given what companies are, I entirely understand French Connection's decision to apply for those trademarks - the more control the better. What I don't understand is why they were granted them when a) they obviously had no intention to use them, only to deny them to others; b) they are abbreviations, not names; and c) they applied for series of letters rather than the specific way in which they were to be displayed.
And to close on a pedantic note: Scott, I think the word is "censored"; Eric, this is about freedom of expression, not freedom of speech... unless you're taking Max's novels too literally...
jacob (#2241)
Location: tx
Quote: "those who are willing to sacrifice freedoms for security deserve neither freedom nor security"
Posted: 6940 days ago
If there's a way to change a politicians stand, it's to fill his inbox with angry letters from constituients (not sure of spelling)
Grace (#1225)
Location: Melbourne aka The Cliffs of Insanity
Quote: "I refuse to have a battle of wits with someone who is unarmed."
Posted: 6939 days ago
It'll happen in Australia soon enough.
Unless of course it's already been decided on behind closed doors and they haven't deigned to tell us yet...
>:[ *rant*
Chris (#2156)
Location: Melbourne, Aus
Quote: "somebody said something once. i can't remember what it was."
Posted: 6939 days ago
Max, you're scaring me. Have you never heard that ignorance is bliss?
I tend to invent companies as i write and am now wondering if i do that as a subliminal precaution. i'm so gonna have to lie down on the couch and analyse this one.
They won't be able to do it. What'll happen to pop art? how many existing books would they have to censor? Those crazy funsters are just messing with us. Aren't they?
Rod McBride (#688)
Location: Gardner, KS
Quote: "www.MidwestRockLobster.blogspot.com"
Posted: 6939 days ago
I don't think we should have the right to appropriate the logo, but you'd think it would be fair usage to refer to, say, the Chicago Cubs by name (cities with two franchises are always a pain in the butt with these kinds of things).
So I'm only mildly surprised at the leglislation. It's a bit of a catch-22 for the marketing people. Does Coke really not want free publicity? I don't know if I upped my cola intake when I read 'Syrup,' but every time I re-read 'Confederacy of Dunces' I eat hot dogs at about ten times my normal frequency.
Which is why if I was calling the licensing shots at a professional sports league, I'd only get bent out of shape with true counterfitters trying to ape the merchandise of licensed vendors. Anything else is free publicity.
Hobbie (#1359)
Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 6939 days ago
All the same, I'd be worried about making films of Syrup and Jennifer Government before any serious changes do arise. Tactically speaking, this could just be a probe, to see how people respond, and if everyone but us here ignores it, they could try and introduce a more restrictive law altogether under a similar banner.
Location: Morristown, Indiana
Quote: "Why do I blog? Simple, because Max Barry blogs."
Posted: 6938 days ago
I HATE AMERICA/CORPORATIONS...BLAH!BLAH!BLAH!
I just realize that I could never be lawyer. I have no concept of how laws really work. I tried to understand(through reading the blog/comments). It's left me utterly confused. So there is only one childish method of dealing with this problem that I can use...
insult/disagree everyone who is smarter than me(and that actually understand it)...
Man, I don't see what the big problem is about these corporations not wanting their names on things. It sounds perfectly reasonable. I think that corporations should get to do whatever they want. Corporations spent millions of dollars on developing marketable names. They don't want to see all of there money thrown down the drain when some crazy foreign author writes a book mentioning their "godly" names all over it. It's blasphemy! Max Barry should be stoned!
-adam
PS controversy=attention
Hobbie (#1359)
Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 6938 days ago
Scott (#354)
Location: Grand Rapids, MI
Quote: "Max Barry tastes like awesome"
Posted: 6938 days ago
::cough::
Location: Morristown, Indiana
Quote: "Why do I blog? Simple, because Max Barry blogs."
Posted: 6938 days ago
-adam
Rick C (#2221)
Location: San Francisco, CA
Quote: "Dulce et decorum est pro patria mori"
Posted: 6938 days ago
I think it's quite a shame that things in the States are going this way, really.
Flynn (#520)
Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 6937 days ago
Michael (#1299)
Location: Northern California
Quote: "Chugachugachoochoo"
Posted: 6936 days ago
Hobbie (#1359)
Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 6936 days ago
Honest...
HAL 9000 (#271)
Location: Boston
Quote: "Let them hate me, so long as they fear me."
Posted: 6929 days ago
http://www.penny-arcade.com/2006/03/01
[See the last post on the page, with pics. Penny Arcade 'dissed' Sony Online Entertainment, who responded by sending 1200 donuts. I'd call that sweet revenge...]
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