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
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.