Introduction to the Book

Mark Twain once sent a Connecticut Yankee back in time to King Arthur's Court. What better way to comment on his own times than use the past as an amusing foil?

I have my own time-travel fantasies. What would happen if contemporary copyright and trademark laws were spirited back in history and applied to the output of, say, William Shakespeare, Woody Guthrie and Albert Einstein? How would their creativity be affected? How might cultural history be changed?

For starters, the heirs of the first-century Roman poet Ovid would surely file the case of Estate of Ovid v. William Shakespeare. The complaint: that Shakespeare, in his tremendously popular drama, Romeo and Juliet, made an unauthorized use of Ovid's Metamorphoses, which is also based on two lovers from warring families. If such theft is not prosecuted, Ovid's descendants warn, there will be no incentive for new investment in future creative works. The consequences for Italy's trade deficit could be disastrous.

Shakespeare's first response, of course, is to kill all the lawyers. He then points out that Ovid was himself a thief. He filched the folk tale of Pyramus and Thisbe and transformed it into Metamorphoses. In classic Freudian style, the very title discloses the appropriation!

In any case, if Ovid's heirs are going to sue (Shakespeare continues), surely they should also name Robert Wise and Jerome Robbins, the creators of West Side Story, as co-defendants. For that matter, they should also seek damages from the producers of The Fantastiks, the immensely lucrative Broadway play, and Maxwell Anderson, for his 1935 drama Winterset, which also featured star-crossed lovers from warring families. Let's not forget Franco Zeffirelli's 1968 film version of Romeo and Juliet,, Baz Lehrmann's 1996 version, and the thirty-two others listed on the Internet Movie Database.

But plotlines aren't protected under copyright law, harrumphs an offstage copyright attorney. Unfortunately, Shakespeare, like most of us, can't be expected to recognize a spurious copyright claim, and he can't afford expensive litigation to vindicate his creative rights, especially when the adversary has deep pockets. (Ovid's family made a mint off of the love poems.) So long as a lawsuit hovers over Romeo and Juliet, no theater company will touch it. Performances drop off and the play slips into obscurity.

So goes my fantasy. The point, really, is that creativity and culture resemble an ongoing conversation. We necessarily draw upon the past and play off each other. We constantly borrow and transform prior works.

An acute tension arises from this fact. The components and meanings of creative works emerge over time from our collective interactions. Works are inherently social. Yet ownership of a particular work tends to be private.

Historically, this tension has been resolved through copyright law. Individual creators are granted limited monopolies on their works, through copyright protection, while the public is guaranteed certain rights of access and use, primarily through a legal doctrine known as "fair use." The system has worked well. In fact, it has been an important tool for encouraging people to create new works and disseminate them broadly.

What is happening today, however - and the reason for this book - is a radical expansion of the scope of copyright and trademark law. The owners of intellectual property, especially large entertainment industries, are asserting sweeping new rights of ownership and control for themselves at the expense of the public and future creators. It is as if Ovid really could shut down Shakespeare. This is a significant departure from the time-honored principles of copyright law, which have struck a careful balance between private control and public access.

It is not easy to talk about this disturbing trend. The details are so abstract and embedded in the clotted language of the law. The cases tend to be convoluted and embroiled in arcane inter-industry squabbles. Who can begin to keep track?

Stories, I have learned, can help clarify what's going on. For example, it would be interesting to contemplate the fate of Woodie Guthrie's folk songs if a predatory media company - call it Globatron Content - were to acquire his copyrights and aggressively leverage their economic value.

Imagine that Globatron acquires a dozen media subsidiaries in single merger deal, and then learns that it unwittingly acquired the copyright to Guthrie's union organizing song, Union Maid. The famous chorus to the song - "Oh, you can't scare me, I'm sticking to the union, I'm sticking to the union till the day I die" - has become so much a part of the cultural landscape, a government arts official once told Woody Guthrie, that most Americans have no idea that he wrote it. A pleased Guthrie replied, "If that were true, it would be the greatest honor of my life."

But Globatron, the new legal "author" of Guthrie's song, has no personal attachments to the song. It is only concerned that its valuable intellectual property is being ripped off. Surely the singing of the song at union rallies constitutes a "public performance," which by law requires authorization and payment. Popular homage is one thing; a failure to pay is another. The company sues the AFL-CIO for abetting copyright infringement. Splutters one Globatron attorney, "And don't get me started about This Land is Your Land."

To take a cue from Guthrie, one might well ask about the brave new world being crafted by copyright and trademark law: Is this culture your culture? Is this culture my culture?

We are accustomed to thinking that knowledge and creativity are something that we can freely use and share with each other. That is what a democratic society is all about. But increasingly, copyright and trademark law is extending its reach into the most intimate corners of our daily lives and consciousness. We are being told that culture is a creature of the market, not a democratic birthright. It is privately owned and controlled, and our role is to be obedient consumers. Only prescribed forms of interactivity are permitted. Our role, essentially, is to be paying visitors at a cultural estate owned by major "content providers."

What this means is that the creativity and knowledge exchange that we participate in outside of the marketplace - online forums, collaborative archives, music remixes, open source software development - are regarded by the law as second-rate forms of culture, if not illegal in some instances. The "authorship" of commercial vendors is given full-armor legal protection, but the creative interests of ordinary citizens and artists are seen as unimportant. Posting online newspaper articles to a website has been declared illegal by one federal court. Scholars who share digital journal articles without authorization may be breaking the law. Using trademarks in artistic works may be considered an unlawful "dilution" or "tarnishment" of the mark.

Isaac Newton famously declared, "If I see farther than others, it is because I stand on the shoulders of giants." Newton didn't reckon on proprietary restrictions that might restrict who can stand on whose shoulders, and for how long, before putting another quarter in the meter.

Which led me to wonder what might have happened if Albert Einstein's famous theory of relativity had actually been inspired by a company's proprietary knowledge. Recall that, as a young man, Einstein worked as a patent examiner in Geneva, Switzerland, where he reviewed dozens of patent applications. One patent applicant - let's call it Railway Clocks - sought to synchronize the clocks of railway lines in cities throughout central Europe so that trains could depart and arrive on time. According to one historian, this patent application may have greatly influenced Einstein's thinking about the concepts of time and space.

So imagine this (after first recognizing that patent law is governed by different principles than copyright law): After Einstein publishes his landmark paper on special relativity, Railway Clocks fumes that its intellectual property has been stolen, and by a government insider at that. In the ensuing litigation, Railway asserts that Einstein's valuable derivative knowledge could only have been developed through the unauthorized use of Railway's proprietary knowledge. If self-appointed newcomers like Einstein are allowed to appropriate valuable prior knowledge and use it as they see fit - for free! - who will invest in future research? One might also ask, will future Einsteins have any free knowledge available to them?

The Modern Obsession with Owning Culture

The fantasies I have imagined here may seem faintly ridiculous. But in truth, contemporary copyright and trademark law are replete with tales of the bizarre and hilarious. That's what I discovered as I ventured into the forbidding precincts of intellectual property law. If Robert Ripley were still chasing down the lurid stories that once graced the Sunday comics section - a rutabaga that looks like Abraham Lincoln, a sultan with 500 wives - Ripley would find many ripe oddities for his franchise in copyright and trademark law. "Believe It or Not!"

For example, if you dare to evoke some aspect of a celebrity - by creating a portable toilet called "Here's Johnny!" or making an advertisement featuring a female robot that turns letter tiles on a game show - you may be violating that celebrity's "publicity rights."

If you're an artist who makes mobiles, the estate for Alexander Calder, the famous maker of monumental mobiles, may prevent you from selling your works in museum gift shops.

If you want to take a photograph of your friends while sitting in a Starbucks, the manager may intervene to stop your Kodak moment (oops, a trademark that doesn't belong to me) lest you replicate the shop's tastefully designed "trade dress" interior.

If you want to paint your own renditions of Mickey and Goofy on your day care center walls, lawyers for the Disney Company may send you an intimidating "cease-and-desist" letter.

While the stories of this book may shock and entertain, there is a serious purpose afoot. These tales speak to a radical reconfiguration of political and cultural power in the digital age. They are significant because they are harbingers of our future. As more aspects of American life migrate to the Internet and digital media, the obscure, clunky machinery of copyright and trademark law is gaining vast new powers to re-engineer the flows of information, art and culture in our society.

What was once considered part of the cultural commons, available for all to use, is increasingly being privatized and locked up. The scope of this plunder is remarkable. It includes all manner of text, images, music, fictional characters, celebrity personas, accounts of public events, and even common words. The ownership of culture now extends to letters of the alphabet, distinctive sounds and colors, and even scents. Increasingly, the lawyers tell us: "You may gaze upon and buy the products of American culture. But don't be so naive as to think that you can actually use them for your own purposes. We own them."

Congress and the courts have actively facilitated this rather dramatic privatization of culture and political rights with little public scrutiny or citizen participation. The resulting empowerment of several major industries - film, music and publishing in particular - is matched by a corresponding disenfranchisement of ordinary citizens, artists and posterity. Try to use an existing works in a new creation - even in a fleeting, partial way, even for personal and non-commercial purposes - and you enter a shadowy cultural underground, a zone of the illegal imagination.

New creativity is stymied. Free expression is stifled. A boisterous open culture is turned into a regimented marketplace.

What Would Groucho Do?

Faced with the growing absurdities of copyright and trademark law, sometimes the only appropriate response is WWGS - What Would Groucho Say? (The acronym WWJD - "What Would Jesus Do" - is already taken as a private trademark. But perhaps we can risk using the derivative WWGS.) I suggest WWGS in honor of Groucho's famous correspondence with studio mogul Jack Warner, described in Chapter 6. Warner tried to scuttle the title of the Marx Brothers' film, A Night in Casablanca lest it be confused with Warner Brothers' new film, Casablanca. Groucho pelted studio lawyers with a long series of zany jibes and digressions. Eventually they gave up and let the title A Night in Casablanca proceed.

Where is Groucho now that we really need him? One can only imagine the deadpan riposte that he would deliver upon hearing that Wal-Mart attorneys scuttled a website called walmartsucks.com started by a disgruntled customer. Or that Mattel spent millions of dollars on a legal campaign to prevent a photographer from posting photos on his Web site of Barbie dolls in unflattering sexual poses. Or that ASCAP, a performance licensing body, actually told hundreds of summer camps that they may not sing copyrighted songs around the campfire without paying a licensing fee.

Comics are actually discovering the rich vein of humor to be found in intellectual property. In fact, an entire chapter is devoted to some devastating parodies and practical jokes involving brand-name bullies. For the hapless victims of copyright and trademark law, of course, things are not so funny. Fear and befuddlement are the operative emotions. Ordinary American who are accused of copyright or trademark transgressions have a lot in common with the Jimmy Stewart characters in Hitchcock films; they are the innocent Everyman suddenly engulfed by a mysterious web of unseen, complicated forces.

What could be more innocent than teenagers creating their own fan Web sites to celebrate and discuss Harry Potter, the boy wizard of J.K. Rowling's books? But when Warner Brothers (still jealous of its film titles) came out with the first Harry Potter film, the studio could not abide the fact that teenagers might actually use the name "Harry Potter" in their domain names. Studio lawyers accordingly threatened the fans with legal action for trademark violations unless they shut down their sites. Only later, after a round of bad publicity and a lesson in "viral marketing," did the studio invite readers to join the AOL Hometown service and create their own Harry Potter Web sites.

The McDonald's Corporation has long been legendary for its proprietary zeal. It constantly prowls the world's restaurants and corner carryouts for unauthorized uses of the "Mc" prefix. In San Francisco, it was McSushi, a Japanese carry-out. In Scotland, it was McMuffin, a sandwich shop. In California, it was McDharma, a fast-food restaurant for vegetarians. So it goes that a San Diego-based multinational claims a venerable Scottish prefix as its private corporate asset.

Copyright and the Consent of the Governed

At first blush, it's hard to know if these stories are merely stupid and amusing, or outrageous and alarming. In isolation, each story may seem trivial, the paranoid overreaction of an over-lawyered corporation. And let's be honest: Is the Republic really threatened if a teenager can't name a domain name after Harry Potter or a restauranteur cannot name his restaurant McSushi?

The real question, however, is whether free speech and culture belong to everyone or chiefly to commercial interests. Seen in its broader sweep, the emerging landscape of copyright and trademark law has some disturbing implications for a robust, open world of creativity and knowledge. The prohibitions do not just affect single words or domain names, but sweeping fields of creative endeavor, political speech and cultural commentary. As we will see in the chapters below, the creeping tendrils of legal control seem to reach everywhere.

I still find it preposterous that Dr. Martin Luther King, Jr.'s "I Have a Dream" speech is legally private property. Even though Dr. King's speech has been heard by millions as a news event and has become an historic treasure showcased every year in a federal holiday, King's estate legally owns it and refuses to let it be reproduced without authorization.

As copyright and trademark holders extend their powers in unprecedented ways, it is important for us to learn these little-known stories. They can help demystify the contrived complexities of the law and help us re-imagine a more benign order. The What-Would-Groucho-Say strategy can help show how copyright and trademark law is reaching outrageous new extremes. A largely unresponsive body of law can be forced to the bar of public judgment and common sense and, as warranted, held up to ridicule.

Because intellectual property law has traditionally been a preserve of industry attorneys, not the general public, certain basic questions are typically ignored, such as: How are ordinary people affected when copyright and trademark law are taken to unprecedented extremes? How is a democratic society sapped of its vitality by the over-propertization of its culture? How are new creativity, scientific inquiry, competition and innovation being harmed by the new expansions of copyright and trademark protection? These questions lie at the heart of this book.

By depicting some of the excesses and abuses on the frontlines of copyright law, I hope to make us more confident in asserting that copyright and trademark law must be the servant of the people. Our needs and values are paramount and must be protected. Thomas Jefferson once offered advice for occasions such as this: "When a long train of abuses and usurpations pursuing invariably the same object, evinces a design to reduce the people under absolute despotism, it is their right, it is their duty to throw off such chains and to provide new guards for their future security."

We stand at such a crossroads today. We have reached a point at which copyright and trademark law is surging out of control.

The point is not that copyright and trademark law need to be overthrown. It is that their original goals need to be restored. Individual creators need to be empowered more than ever. The volume and free flows of information and creativity need to be protected. The public's rights of access and use must be honored. We must strike a new balance of private and public interests that takes account of the special dynamics of the Internet and digital technology.

None of this will occur, however, unless we recognize the problem. That is what the stories can help us do.

Brand-Name Bullies

Bullies succeed by intimidation. When they do not encounter resistance, they push as hard and as far as they can. In copyright and trademark law, large corporations, famous personalities and well-heeled law firms have prevailed for too long precisely because the public does not have much of a role in writing the law, does not know the rights it may have, and does not have the legal resources to fight back. As a result, brand-name bullies have been allowed to inflict incalculable harm on public life, cultural freedom and personal choice.

Charlatans should not be allowed to misuse a trademark in order to commit marketplace fraud or confuse consumers. But it beggars the imagination why Ralph Lauren should have a monopoly on the word "polo" (at the expense of an equestrian magazine), or why Microsoft should be allowed to prevent a vendor of a Linux-based computer from naming itself "Lindows" (Microsoft lost its case at the district court level, but has appealed). Why should the owners of the Godzilla trademark be allowed to root out any uses of the letters "zilla" in the cultural landscape?

I did not make these stories up. They are immortalized in federal case law, documented in The New York Times, buried away in the trade press, retrieved from law review articles, culled from the cultural underground, and passed along by friends.

It is an improbable fact that contemporary copyright and trademark law could provoke so much dark laughter. But just remember, it ain't no joke.....Believe It or Not!