Trademarking Freedom of Expression®

From Chapter Three of Freedom of Expression®:

In 1998, the Patent and Trademark Office granted me my trademark, the same year that Fox News was awarded ownership of Fair and Balanced®. Like Fox’s trademark, my registration doesn’t actually give me full legal control over how freedom of expression® appears in all contexts, for my trademark was filed only under Class 16 of the international schedule of goods and services, which covers “printed matter”—pamphlets, magazines, newspapers, and the like. Even though I can’t prevent, for instance, a phone company from using freedom of expression® as an advertising slogan, I could very well keep the American Civil Liberties Union from publishing a magazine with that title. However,I’d never do that to the ACLU.

In my application to the Patent and Trademark Office, I didn’t write: “I want to trademark ‘freedom of expression’ as an ironic comment that demonstrates how our culture has become commodified and privately owned.” I simply applied to register this trademark and let the government decide whether or not we should live in a world where someone can legally control freedom of expression®.In filing this application, I crossed the enemy line at the Patent and Trademark Office, feigning allegiance by speaking their slippery language oflegalese, fooling them into saying what I hoped wasn’t actually possible. After I received my freedom of expression® trademark certificate, I wanted to publicize the event, and I knew just the way to gather a large audience: a media prank. Early in my life I learned how easy it was to manipulate the media into telling my strange little stories. When I was a junior at James Madison University, I gained local and national media attention when I attempted to change the school mascot to a three-eyed pig with antlers, a movement that culminated in a rally where I married one hundred people to bananas in front of TV news cameras on the JMU commons. A few years later, I got a lot of press coverage when I sold my soul in a glass jar on eBay, being quoted saying things such as “In America, you’re rewarded for selling your soul and compromising your principles. I may not have a soul, but I have a new car, and I’m doing great.”

Pranks, for me, aren’t the same as hoaxes. Hoaxes are what they are: they use deception to make someone or something look foolish, and nothing more. Media pranks, on the other hand, involve cooking up a story or an event in order to make a larger, satirical point. For instance,1960s radicals Abbie Hoffman and Jerry Rubin dumped hundreds of dollar bills from a balcony overlooking the New York Stock Exchange, causing trading to stop as brokers grabbed at the money that was falling from the sky. Hoffman and Rubin invited reporters to cover the event, which was designed— ingeniously and hilariously—to peel back the Stock Exchange’s blanket of respectability to reveal the naked greed that bubbled underneath. I figured that the media wouldn’t be able to pass up a story about someone threatening to sue another for the unauthorized use of freedom of expression®.

The problem was I didn’t really want to sue some innocent infringer who used my trademark. So I enlisted my high-school prankster friend, the Reverend Brendan Love, who posed as the publisher of a fictitious punk-rock magazine named Freedom of Expression. I hired a lawyer, who wrote Brendan a cease and-desist letter, soberly stating,“Your company has been using the mark Freedom of Expression. … Such use creates a likelihood of confusion in the market and also creates substantial risk of harm to the reputation and goodwill of our client. This letter, therefore, constitutes formal notice of your infringement of our client’s trademark rights and”—this is my favorite part—“a demand that you refrain from all further use of Freedom of Expression.”

When talking to reporters who responded to a press release I sent out, I played the quasi-corporate asshole to Brendan’s indignant anarchist underdog, spouting poker-faced lines such as “I didn’t go to the trouble, the expense, and the time of trademarking freedom of expression® just to have someone else come along and think they can use it whenever they want.” Brendan countered that I was an “opportunist.” The venerable western Massachusetts newspaper the Hampshire Gazette published an article with a headline that read, “Freedom, and Expression of Speech”—a story that played up the inherent absurdity of someone successfully trademarking freedom of expression®.I wanted to reprint a chunk of the Hampshire Gazette article in the introduction to my first book so as to expose the purpose of my prank to more people. But when I explained in a letter that it was a “socially conscious media prank,” the paper’s editor wouldn’t allow me to reprint the article. In fact, he didn’t bother composing a letter, instead scrawling on my own dispatch, “Permission Denied,” and mailed it back to me.

I was completely naive and perhaps more than a little stupid. I assumed the folks at the Hampshire Gazette would be irritated with my deception, but at the end of the day I honestly thought they would grant me permission, given the slant and the content of their own story. In my first book’s introduction, however, I was able to point out the fact that the Hampshire Gazette used copyright law to prevent me from reprinting its own story that was about how intellectual-property law restricts freedom of expression®. But the little saga didn’t end there. After my book, Owning Culture, came out in 2001,the publisher of a very smart magazine of cultural criticism called Stay Free! contacted me. Carrie McLaren was putting together an art show entitled Illegal Art: Freedom of Expression in the Corporate Age. She wanted to include my framed freedom of expression® certificate in an exhibit that featured art and ideas that pushed the envelope of intellectual-property law. I was flattered to discover that among the many great artists included in the show, Negativland was involved.

Serendipitously, at that time I was teaching an undergrad course on intellectual-property law. One of my students, Abby, brought in a copy of an AT&T ad from the Daily Iowan that used the slogan “Freedom of Expression”—WITHOUT MY PERMISSION—to lure college students into signing up for their long-distance plan. My class told me I should sue AT&T, and we all laughed, and I said, “Sure.” Soon I realized that the synergy of the art show, the publicity it was generating, and my own freedom of expression® project was too perfect not to exploit. I hired a lawyer in Iowa City, gave him my government documents, and a copy of the ad, and he drafted a cease-and-desist letter addressed to AT&T (just as the company would’ve done to me if I stepped on their trademarked toes).

Here is a press conference I held in Chicago to announce my supposed legal action:

It’s important to note that I had no real case. My trademark didn’t protect the phrase in the context of advertising, just as Fox News wasn’t able to prevent its trademarked slogan from being used as the title of Al Franken’s book. I was overreaching, much as overzealous corporate bozos so often do when they try to muzzle freedom of expression®. Conspiring with the Chicago organizers of the Illegal Art show, the good folks at In These Times magazine, I used the show’s opening as a press conference to publicly announce my scheme. The New York Times broke the story and others picked it up, including the U.S. government’s overseas broadcasting arm, Voice of America(which allowed me to air my critiques of intellectual-property law all the way to Afghanistan). AT&T never did respond to, or worry about, my lawyer’s cease-and-desist letter. Although I didn’t prevent AT&T from using freedom of expression® without my permission, my media prank did succeed in broadcasting to millions a critique of intellectual-property law that wouldn’t normally get national or international attention.