If you are concerned about free speech and creativity in this multimedia age -- and how copyright law is being used as a tool of censorship -- you've come to the right place.
Winner of the American Library Association's Eli M. Oboler Award for "best scholarship in the area of intellectual freedom"
"Freedom of Expression is one of the sharpest weapons in the culture wars being waged over the extensive protections now accorded to intellectual property. A lively read, the book brims with humor, juicy examples, and the voices of those whose creativity is threatened and endangered. If you had any doubts about the way intellectual property is shaping popular culture, Kembrew McLeod will dispel them. The privatization of culture has found its most trenchant critic." --Rosemary Coombe, author of The Cultural Life of Intellectual Properties.
In 2003 Fox News sued Al Franken and his publisher, Penguin, for naming his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. The veteran satirist, who had publicly quarreled with Fox News host Bill O’Reilly in the months lead-ing up to the book’s release, used the news channel’s slogan “Fair and Balanced” in the title. The company claimed this use trespassed on its intellectual property. By associating Al Franken’s name with Fair and Balanced®, the Fox lawyers argued, it would “blur and tar-nish” the good reputation of the trademark. The suit went on to state that Franken “appears to be shrill and unstable.” He was also described in the lawsuit as “increasingly unfunny,” a charge Franken responded to by saying that he had trademarked “funny” and was considering a countersuit.
Later that week on his daily radio talk show, O’Reilly grew testier, lashing out at Franken and his alleged theft. Despite O’Reilly’s blus-ter and the earnest legal arguments of Fox’s lawyers—who drew laughter from the courtroom when they advocated their indefensible position—U.S. District Judge Denny Chin dismissed the injunction against the book. “There are hard cases and there are easy cases,” Chin stated. “This is an easy case in my view and wholly without merit, both factually and legally.” The O’Reilly-Franken dustup was the prelude to an increasingly aggressive trademark rampage. That year, the news channel threatened to sue a Web-site outﬁt that was selling a satirical T-shirt that mimicked its logo with the words “Faux News” and tweaked its motto: “We distort, you comply.” It also targeted The Simpsons (which airs on its sister net-work) for parodying the news channel’s right-wing slant. During one episode, the cartoon imitated the Fox News ticker, running crawling headlines such as “Oil slicks found to keep seals young, supple” and “Study: 92 percent of Democrats are gay.”
Fox News eventually backed down, opting not to ﬁle a lawsuit against the show. “We called their bluff,” said Matt Groening, The Simpsons’ creator, “because we didn’t think Rupert Murdoch would pay for Fox to sue itself. So we got away with it.” It’s probably the ﬁrst time that media consolidation has actually enabled freedom of expression®. Still, The Simpsons writers got a slap on the wrist by the parent company when it imposed a rule that the cartoon could no longer imitate news crawls. “It might confuse the viewers into thinking it’s real news,” Groening drily noted. As for the Web site that sold the “Faux News” T-shirt, Fox News dropped its threat after the American Civil Liberties Union intervened on its behalf. The ACLU sent Fox a “ ‘get stuffed’ letter,” as the site’s operator Richard Luckett put it.
“Blur and tarnish,” the choice of words used by Fox’s lawyers in the Franken case, might sound absurd to the average person, but it’s the language of trademark law. Unlike copyright law, which protects creative works such as books and movies, and patent law, which covers inventions and the like, trademark law is designed to prevent consumer confusion and unfair competition. In other words, you can’t place the Coca-Cola logo on your own newly minted soft drink or use the company’s trademarked advertising slogans to trick people into buying your product. It also protects companies from having their trademarks associated with something unsavory, which is where the blurring and tarnishing comes in. The problem at least as far as freedom of expression® is concerned—is when trademark holders go too far in trying to protect their prop erty. The Fox News v. Franken case is but one of many examples of this kind of overkill.
By wielding intellectual-property laws like a weapon, overzealous owners erode our freedoms in the following ways: (1) we, or our employers, engage in self-censorship because we think we might get sued, even if there’s no imminent threat; (2) we censor ourselves after backing down from a lawsuit that is clearly frivolous;(3) worst of all, our freedoms are curtailed because the law has expanded to privatize an ever-growing number of things—from human genes and business methods to scents and gestures. (Donald Trump not only trademarked “You’re Fired,” but also his hand gesture that accompanied the phrase on The Apprentice.)