Rebuilding a legal world everyone can understand and support

When all the rights we grew up with are broken, make new rights from the scraps. Part one of a consideration of legal frameworks we can seek to build or rebuild in digital times. First up, parodies of trademarks and brands.

Lawyers are supposed to be the guardians of our rights, both those that guarantee our liberties and that protect commercial interests, such as copyright and trademark protection. The endlessly confusing story of Apple's infringement of Cisco's rights in the name iPhone, which Cisco may have lost a year ago through negligence, demonstrates that lawyers are the last bastion of denial, because at least all the rest of us knows that these systems are irreparably broken.

Based on this article at Law.com, which explains to lawyers that many of their day-to-day office habits violate the copyright advice they dispense, is seems just as likely lawyers will create legal stumbles for clients Our notions of civil liberties, commercial rights and protections, trademarks, copyright and patent law are besnargled beyond recognition.as they will be able to enforce legal protections. I know law schools are trying to address the changes in the digital world, but case law is moving faster than any textbook publisher or law professor can without significantly greater resources dedicated to keeping up. So, it falls to the rest of us to try to make business and projects for the public good fit into a legal framework that has not been fully imagined.

What the history of Internet-related litigation over the past year in every field of law has demonstrated is that our notions of civil liberties, commercial rights and protections, trademarks, copyright and patent law are besnargled beyond recognition. It is more dangerous today to assume our privacy or property will be protected than it is to act as if the whole system has already collapses. And, unfortunately, that strategy leads to more predatory behavior than polite cooperation or post-capitalist communal goodness.

For the next few postings, I'm going to cover some areas where the law may already be clear enough that the pieces of the past can be used to lay down a new legal understanding that the rest of us can understand and put into practice. Alas, we'll probably have to litigate our way to actually being able to stand on that foundation, but at least it is a start.

Today's topic: Trademark infringement by satirists. Zachary Rodgers has a piece over at ClickZ about the discussion at the Association of National Advertisers Law and Business Affairs Conference in New York. I'm not talking here about people who appropriate a well-known trademark for use on their blog or MySpace page, but the actual act of making fun of a product or company. The two issues get confused, as they are by the ClickZ article:

On the topic of fair use and trademark dilution, lawyers say precedents have already been set allowing a broad interpretation of fair use. "Trademark dilution is death by a thousand cuts," said Joe Dreitler, partner at Frost Brown Todd. "And if there are a thousand people doing parodies of Louis Vuitton, at what point [does it occur]?"

Satire or parody are conscious efforts to bring funny or unfavorable elements of a brand or the associated products and services to light in a humorous way. Diluting a trademark by having it appear all over the place where it becomes associated with qualities that may reflect poorly on the brand is something else entirely, and it is a huge problem if you don't want your brand, for example, associated with sociopathic subcultures that appropriate a trademark to give themselves some "style." Big problem, but not one associated with parody or satirical attacks.

The law is clear today: Parody and satire are protected forms of speech. The trademark or brand of a company by its very nature. The corporation is a person created by the state and the words or images that evince the brand are registered with the Patent and Trademark Office, making their value a matter of the public record. Public figures can be parodied unless the parody crosses a line into liable, where the message is a form of defamation specifically intended to damage the subject of the parody based on falsehoods.

Making fun of a brand, for instance by created a parody Web site that misspells the name of a brand in a way to bring infamy upon it for its deeds, such as using chemicals in a manufacturing process that produces infertility in all workers, is perfectly legal, whether corporate attorneys like it or not.  Imagine a brand, Pilgrim's Seeds, that had sterilized its workers, even by accident. If www.pilgrimseedless.com were launched to parody the company's attempts to rationalize the tragedy as an accident or to document the company's handling of worker claims, this is a perfectly legitimate form of commentary by a third party. 

It would be legal, too, if a customer who had purchased tens of thousands of seed packets from the company set up a site to complain about the product, because it would be demonstrably true that the company's product had caused harm and raised concerns about its safety. Likewise, it's perfectly legal for a listener to a radio station to complain about the content advertisers were supporting by sampling that content and making the analysis available to the public, as Spocko did, to the chagrin of ABC/Disney's radio division. This case hasn't been settled, but Spocko should win based on the Constitution of the United States, Article 10 of the European Convention on Human Rights, and many other national systems of justice. Here's some great Spocko coverage.

If, however, someone set up a site that attacked the company as a front for al Qaeda or claimed it had caused some unrelated suffering, such as increased radiation from alien antennas placed on the Moon by Kim Jung Il and a Martian invasion team. The charges need not be that whacky, they just need to be patently untrue and disseminated with the intent to harm the subject of the accusations.

A parody may catch on and spread, causing the feared "dilution" of a trademark's value, but that, my friends, is simply the cost of doing business in a marketplace of ideas and information. The repetition of a message is not a legal problem, but a resources issue. A single determined voice of criticism or truth (or falsehoods, too) can do tremendous damage to the carefully built image of a brand, but only the liar is out of line legally. 

If we can agree on that principle, that honest and critical expression is free, then we have something to start building on. In fact, most case law supports this position, but the confusion of the times opens doors to abuse by both sides of the argument, though it is the corporate and government lawyers who are best funded and, therefore, more likely to steer society onto the wrong track. By siding in principle with the critic, we ensure a greater debate, which is the foundation of freedom of expression. Do you agree?

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