FAQ with Author & Producer Kembrew McLeod
Freedom of Expression® book author and video producer Kembrew McLeod sat down with himself to answer a a few questions
1. Why is the expansion of copyright law such a big deal?
Many corporate copyright owners want us to view their movies, listen to their
music, and read their books, but on their terms. Copy protections make it much
more difficult, and sometimes illegal, for people to hijack sounds and images
from popular culture for the purpose of criticism and commentary. When so many
of our cultural experiences are commercial transactions, and so much of our
culture is privately owned, we are in danger of being banished to a world that
is not our own. It’s a place where culture becomes something that is
alien, and a primary cause of that alienation is the way intellectual-property
laws are enforced. This leaves us very little breathing room to reshape and
react to the popular culture that surrounds us. Of course, it doesn’t
have to be this way. The digital future could very well be a lot like the analog
past, where people can continue to remix and remake the world in much the same
way Woody Guthrie did. Or, for that matter, Marianne Moore, Martin Luther King
Jr., Muddy Waters, and others who would be considered plagiarists and copyright
criminals today.
2. Even though copyright and trademark laws have negatively
impacted freedom of expression, isn’t that the price we have
to pay for living in an information age?
History has demonstrated that making money and freedom of expression®
aren’t mutually exclusive. During the second half of the twentieth
century, media-entertainment industries exploded at the same time that
consumers gained more freedom to play with and reproduce copyrighted
material.
“Digital” is different and new, yes, but a lot hasn’t changed. Film, software, and
video-game sales only increased at the same time they were heavily
traded on €le-sharing networks. Even though the potential exists
for everyone to get everything for free, this has yet to occur. That’s
why the movie industry didn’t collapse after the introduction
of the VCR, and why the music industry didn’t do the same after
the introduction of cassette tapes. However, if you believed the rhetoric
churned out by these industries twenty years ago, their death was a
foregone conclusion.
3. Is it true you trademarked the phrase freedom of expression?
Why did you do it?
Yes, I successfully trademarked “freedom of expression” in
1998. It was a joke, a prank, though a very serious one. After studying
the way intellectual property laws have affected all aspects of our
culture, and coming to some pretty dark conclusions, I applied to trademark
the phrase as a kind of dare. I wanted the U.S. government to declare
once and for all that it was not possible for a private interest to
monopolize a phrase that is synonymous with free speech. Even though
I hoped that freedom of expression could not be privatized, the bureaucracy
that processed my application believed otherwise. At first the USPTO
informed me that parts of my application were “not acceptable,” but
not because the thought of cordoning off “freedom of expression” was
troubling. No one at the USPTO seemed to be morally, socially, or politically
unsettled by this notion. Instead, a civil servant lawyer explained
to me that it was unacceptable because I had filled out the application
incorrectly:
“the mark is not typed entirely in capital letters.” Six
months after dutifully filing yet another piece of paperwork that amended
my request, I received a certificate in the mail informing me that
I owned freedom of expression®.
4. And is it true you accidentally killed freedom of expression?
Funny you should ask. In order to keep a trademark registration alive,
the USPTO states that “the owner of the registration must file,
at appropriate times” . . . damn it, even more paperwork. The
rules make clear that during the fifth year of a trademark’s
life the owner must declare a “Section 8,” a term I had
previously only associated with the M*A*S*H character Corporal Klinger,
who cross-dressed to appear insane. “Failure to file the Section
8 Declaration,”
explains the USPTO in its guidelines, “results in the cancellation
of the registration.” Or, to use that jarring legal-bureaucratic
term, it is DEAD. I forgot to file that paperwork, which resulted in
the death of my beloved trademark. I had always planned, in concluding
my little performance art piece, to faux-magnanimously return freedom
of expression to the public domain, but I didn’t think this would
occur involuntarily. Nor did I imagine its passing would go undetected
by me for such a long time. No fanfare, not even a form letter stating, “Dear
Mr. McLeod, we regret to inform you that your right to freedom of expression
has been terminated.”
5. Are you a copyright hater? Don’t you just want to
abolish our entire system of intellectual property?
No, not really. In this book, I don’t argue for the abolition
of intellectual-property laws. Nor do I believe that those who think
their intellectual property is worth protecting are automatically “overzealous
copyright bozos.” But I do contend that we need to roll back
the recent restrictions that have been imposed on us in the digital
age.
6. What first got in you involved in the issue of intellectual
property law?
If Negativland hadn’t been sued, this book wouldn’t exist.
I’m sure many of you are wondering, who, or what, is Negativland?
They are nerdy, motley crew of sound collage artists, weirdoes, and
computer programmers, originally based in the San Francisco Bay Area.
As a teenage hipster-doofus growing up in the 1980s, I admired the
group because they held up arty, funhouse mirrors to the media-saturated
culture that surrounded me. Their collage aesthetic seemed a natural
way of commenting on the world, especially since I had grown up listening
to hip-hop. In titling their 1987 album Escape from Noise (the same
year the seminal hip-hop group Public Enemy released “Bring the
Noise”), they were referring to the ubiquitous pop-culture cacophony
that blankets us. But instead of literally escaping—living off
the grid, so to speak—the group engaged with the world by putting
something new and subversive into the media mix. I had never thought
about copyright, even when I was making my own sound collages in the
1980s, but I started paying attention after Island Records sued Negativland.
This corporate Goliath took aim at the group’s record (titled
simply U2) and blew it off the face of the earth. Negativland weren’t
even a blip on the pop-culture radar, an unlikely target for a major
lawsuit. So what would prompt a huge record company to use its full
legal and economic might against an insignificant band? As you
may have guessed from Negativland’s album title, they made the
mistake of sampling U2’s music, the crown jewel in Island Records’ multi
platinum crown.
7. Isn’t it true that the nature of how we consume media
and culture is changing, and shouldn’t that fact afford intellectual
property owners more protections?
Again, yes and no, but mostly no. If we had followed the entertainment
industry’s marching orders at the time, creativity would have
been far more constrained. As we move from an analog to a digital world,
many corporations are using this shift as an excuse to correct what
they see as the past wrongs of courts and legislators. As the analog
videocassette player becomes obsolescent, they want to prevent its
digital equivalent from existing (or at least closely control the way
we can use it). Today, these industries have far more power than they
did twenty years ago, when they lost almost every important battle
in courts and Congress. Today these industries have far more power
than they did twenty years ago, and they repeatedly invoke the Internet
as something that will surely devastate them. Jack Valenti, the recently
retired Motion Picture Association of America (MPAA) CEO, has claimed
that Hollywood would be brought to its knees by the digital anarchy
perpetrated by “twelve-year-olds.”
Valenti has argued, “If the value of what [movie studios] labored
over and brought forth to entertain the American public cannot be protected
by copyright, then the victim is going to be the American public.”
He went on to assert that if people were able to freely copy and watch
movies whenever they wanted, this would lead to a “lessened supply
of high quality, expensive high budget material where its investment
recoupment is now in serious doubt.” Valenti said this over twenty
years ago, and he was talking about the VCR.
8. How is copyright censorship unconstitutional?
When companies try to use intellectual-property laws to censor speech
they don’t like, they are abusing the reason why these laws
exist in the first place. Copyright was designed to, as the U.S.
Constitution puts it, “promote the progress of science and
useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries.” Copyright
exists—and the U.S. Supreme Court has consistently repeated
this—as a means to promote the dissemination of creative expression,
not suppress it. The overzealous copyright bozos who try to use the
law as a censorious weapon mock the idea of democracy, and they step
on creativity. As culture increasingly becomes fenced off and privatized,
it becomes all the more important for us to be able to comment on
the images, ideas, and words that saturate us on a daily basis—without
worrying about an expensive, though meritless, lawsuit. The right
to express one’s views is what makes these “copy fights” first
and foremost a free-speech issue. Unfortunately, many intellectual-property
owners and lawyers see copyright only as an economic issue.
