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video game, watch the X Games on ESPN, take in an extreme-sports-and-punk-rock concert at the local stop of the Warped Tour, drive to the mall and buy Quiksilver gear, eat an Extreme® Taco Bell meal at the food court, and check out Dogtown at the multiplex—
all without ever having to skateboard once. When I was growing up not that long ago, the consumption options that now surround
skateboarding simply didn’t exist. It pretty much cost nothing (save for the board’s price tag) to hang out and skate in a parking lot while a boom box played Black Flag. Now skateboarding is a cross-marketing dream or nightmare, depending on your point of view—
or the contents of your stock portfolio.
PEOPLE AS BRANDS
In promoting her line of perfumes, Elizabeth Taylor flatly acknowledges that “I am my own commodity.”23 It’s a telling statement, one that highlights the extent to which people are willing to think of themselves as commodified beings, or even intellectual properties.
Tony Hawk, for instance, is far more valuable as an abstract brand than a corporeal being, which isn’t to say that the brand’s value won’t decline as his skateboarding skills do. The legal doctrine that protects celebrity images, called “right of publicity,” is a relatively recent invention, emerging in the mid-twentieth century (unlike copyright, which developed in the eighteenth century). It helped create a new kind of private property, adding to the growing list of things that have been fenced off and nailed down with a price tag.
Although right of publicity emerged with the rise of the
twentieth-century celebrity industry, celebrity culture itself has been around for hundreds, if not thousands, of years. Following the invention of the printing press in the late fifteenth century, it was common for famous people to be plastered on mass-produced
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consumer goods. Historian Elizabeth Eisenstein documents that sixteenth-century mass-produced portraits of Erasmus and Martin Luther were frequently duplicated and quite popular. Artists and engravers had previously made their living from the aristocracy-funded patronage system, which by the eighteenth century was
in decline. This meant that these professions increasingly had to please mass audiences, and the sale of celebrity likenesses became big business during and after the American Revolution.24
In 1774 businessman Josiah Wedgwood began a line of portrait
medallions called “illustrious moderns,” aimed at less-affluent audiences. Soon, the medallions outsold the tea services that had been Wedgwood’s primary business, and his catalog included classical-music composers, popes, monarchs, poets, and artists, as well as America’s Founding Fathers. The image of Ben Franklin—a hugely popular figure in America and Europe during and after the Revolution—appeared on fans, perfume bottles, and over a hundred other items of fashion. By the time Franklin was an old man, “his own face was displayed all over Europe in the shape of engravings, busts, statues, paintings, and even little statuettes and painted fans that looked like souvenir keepsakes.”25
Mass-produced celebrity images flourished throughout the
nineteenth century, but it wasn’t until the twentieth century that famous people began to think of themselves as legally protected commodities. It would have been inconceivable for Martin Luther to seek to regulate the reproduction of his image in the same way that the estate of Martin Luther King Jr. does. Phillip Jones, president of the firm that manages the King estate, reminds us, “King may belong to the public spiritually, but King’s family is entitled to control the use of his image and words.” Elvis Presley’s estate controls his image just as tightly. Almost every imaginable word and image associated with the other departed King has been privatized by Elvis Presley Enterprises (EPE).
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Since it was founded in 1979, EPE has filed thousands of lawsuits over the unauthorized use of Elvis’s image. For instance, in 1998 a U.S. Circuit Court of Appeals barred a tavern from calling itself The Velvet Elvis. The establishment’s owner claimed that it parodied 1960s kitsch and the restaurant’s overall content had little to do with Elvis, but the court disagreed. The judge stated that even though the idea of the velvet Elvis painting is a necessary component of a kitschy 1960s parody, it still created “a likelihood of confusion in relating to EPE’s marks.”26 The estate so emphatically polices the King’s image and performance rights that it attempted to exert its control in other ghostly dimensions. EPE seriously considered suing a company that distributed the book Is Elvis Alive?, which came with an audiocassette that allegedly contained a conversation with Elvis.
Stupid idea for a book, yes, but copyright infringement? EPE
lawyers claimed that if this truly was a recording of Elvis, living or dead, this paranormal bootleg infringed on the estate’s performance rights. The author is dead; long live the author! The lawsuit idea was dropped after the book didn’t sell enough copies to justify the expense of legal action against it. In 2004 California governor Arnold Schwarzenegger sued Ohio Discount Merchandise Inc., a
family-owned business in Canton that makes bobbleheads. The
Governator’s likeness appeared in a line of wobbly-headed caricatures of political figures, including John Kerry, Howard Dean, and others.
Schwarzenegger’s lawyers claimed that the bobblehead makers
infringed on his right of publicity. “No other politician has done this,” company president Todd Bosley told the New York Times.
“Jimmy Carter sent me a book. . . . Rudy Giuliani carried his around with him to several of his speeches. We’ve never had a problem like this.” He decided to fight the suit with the help of a California law firm, which took on the case pro bono. “There’s a lot at risk McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 200
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here for me and a lot at risk in the future for people like me,” said Mr. Bosley. “Do we succumb to threats and heavy-handedness? Or do we stand up for what America really is?” We truly live in strange times when the frontlines in the fight to protect the First Amendment includes a bobblehead manufacturer.
“Over the years, right of publicity protection has expanded,” legal scholar Rosemary Coombe writes. “It is no longer limited to the name or likeness of the individual, but now extends to a person’s nickname, signature, physical pose, characterizations, singing style, vocal characteristics, body parts, frequently used phrases, car, performance style, and mannerisms and gestures, provided that these are distinctive and publicly identified with the person claiming the right.”27 Right-of-publicity law often overlaps with trademark law.
For instance, Donald Trump’s catchphrase and accompanying gesture, “You’re fired,” is trademarked, but right of publicity more generally protects his persona.
In the Vanna White v. Samsung Electronics America, Inc. case, the U.S. Court of Appeals for the Ninth Circuit enlarged publicity protection even further. In that problematic case, a Samsung commercial featured a robot wearing a blond wig, jewelry, and an evening gown that stood in front of a display board. It was meant to resemble the set of the game show, Wheel of Fortune, which featured Ms.
White as a piece of eye candy who turned vowels and consonants on the board. The court ruled that the commercial infringed on White’s right of publicity, even though no reasonable person would mistake the blond robot for the real Vanna White.
“Right of publicity” has also been stretched to protect a singer’s voice from imitation. Courts had previously rejected the idea that a singer’s vocal style could be protected under right of publicity, but two significant precedents have expanded that right. In 1988 pop star Bette Midler successfully sued the Ford Motor Company and McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 201
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its advertising agency for deliberately imitating one of her songs in a television commercial. They argued that it wasn’t simply a case of imitation, but of trespassing on the property that is her famous voice (and, by extension, her valuable personality). In Midler v. Ford Motor Co., the California court held that “Midler had a legitimate claim under the common law right of publicity.”
After the Midler decision, the neo-beatnik singer-songwriter
Tom Waits successfully sued Frito-Lay for using a singer who imitated his raspy style for a commercial. The Ninth Circuit drew upon the Midler decision, awarding Waits and his lawyers $2 million in punitive damages. Legal scholar Russell Stamets points out that this decision “represents a dramatic expansion of the publicity right defined in Midler. In the Midler case, Ford’s advertising agency admitted trying to imitate Midler in a version of a song she made a hit.”
He continues, “Unlike Ford, however, Frito-Lay’s sound-alike was given an original tune to sing, a tune never associated with the plaintiff.”28
When civil-rights figurehead Rosa Parks objected to Outkast
naming a song “Rosa Parks”—whose chorus playfully goes, “Ah-ha, hush that fuss / everybody move to the back of the bus”—she sued in 1999. Her lawyers invoked right-of-publicity law to try to squash the hip-hop song, and after six years the case is still winding its way through the courts. Also in 1999 children’s television host Mister Rogers sued a T-shirt manufacturer that sold shirts that juxtaposed his image with the captions “Pervert” and “Serial Killer.” Rogers also sued another company that sold a T-shirt of Rogers holding a gun.
Invoking “right of publicity” and trademark infringement, his lawyers stated, “It is antithetical to Rogers’ and FCI’s philosophy, image and business practice to be associated with the corrupted depiction of Rogers shown in defendant’s shirt.”
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point. Many of those who grew up on a steady diet of his programs believe that there was something a little off about the guy. His strangely calm demeanor left enough of an imprint on me that I made a collage piece about his weirdness as an adult. Using words and images from his television program, I excerpted pieces of his disturbing stories and songs, including a quite troubling up-tempo number: “Just for once I want you all to myself / Just for once let’s play alone / I’ll be the only one with you.” Over the course of my collage, titled Won’t You Be My Neighbor?, he chronicles the fears of a “four-year-old friend” who watched in horror after his toy dog’s appendages fell off (it didn’t survive a particularly perilous trip to the washing machine).
“But that’s just with toys,” he sloooowly assures his little friend,
“It doesn’t happen with people.” With a dark sense of dread bubbling just below the surface, Rogers calmly adds, “Little boys’ and girls’ arms and legs don’t fall off when you put them in water.”
Thanks for the reassurance, Fred—and for planting the idea in my head. This collage piece is available as a free download on my Web site and has played at film festivals, so I’m a bit worried about being sued by his estate, or by PBS, which broadcasts Mister Rogers’
Neighborhood. However, I felt compelled to say something about a man who occupied my imagination when I was a kid, and damn
the consequences. Judging from the reaction of many who have
seen it—“I knew he was weird, I just couldn’t put my finger on it”—
I’m not alone. I also confidently believe that my creation is a fair use of these copyrighted broadcasts, because it’s for the purpose of social commentary and satire.
MEDIA PIRATES
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VCR from entering the U.S. market, Rogers took a contrary position. A California court ruled at the time that the VCR could be banned because of its copyright-infringing capabilities, but Mister Rogers testified in the early 1980s that this was wrong. He believed that ordinary people should have the right to record his television show so that they could become “much more active in the programming of their family’s television life.” In classic Fred Rogers style, he argued, “My whole approach in broadcasting has always been ‘You are an important person just the way you are. You can make healthy decisions.’ ” He concluded, “I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.” He had a point.
The kind of borrowing I speak of isn’t the same thing as “piracy,”
though film scholar Patti Zimmermann reappropriates the mean-
ing of the term and puts a new spin on it. If the commercial pirate makes counterfeits, she argues, the media pirate produces counter -
discourses by poaching from pop culture in a witty and subversive way. For instance, in Día de la Independencia, video artist Alex Rivera takes on the 1996 Hollywood blockbuster Independence Day, mocking the nationalistic themes that run through it. He plays with the idea that alien films have as much to do with our anxieties about immigration and ethnicity as they are simply sci-fi entertainment. Pirating the most well-known sequence from the film—a
spaceship hovering over the White House—Rivera slyly replaces the vessel with a digitized sombrero.
Flashily edited to mimic a trailer, it subverts the original material by assuming a Spanish-speaking audience, rather than English, as it warns of an impending Chicano invasion. At the end of the trailer, the sombrero blows up the White House, playing on racially charged fears about nonwhite people overrunning the United States, a feeling that has only intensified post-9/11. Appropriation and collages aren’t just techniques used by lefty artists—it’s been a useful tool McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 204
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for right-leaning folks, from the Futurists to contemporary conservative talk-radio jocks. For instance, Howard Dean was the front-runner for the 2004 Democratic Presidential nomination, until the Iowa caucuses. Although he had already slipped in the polls, Dean’s post-caucus “I Have a Scream” speech precipitated one of the
quickest freefalls in recent political memory.
The next morning, and for the next couple of weeks, the Dean
howl was replayed on radio and television, sometimes being incorporated into elaborate and humorous montages. There were other factors that contributed to Dean’s spectacular downfall, but the endless loops and collages of his yowling “YIPPIE!” played a big role. On the other side of the political spectrum, the day after the Dean debacle, Bush gave his State of the Union address. Almost immediately, the Internet was filled with dozens of downloadable remixes of the broadcast that parodied and undermined the president’s speech. That year, Negativland mined Mel Gibson’s controversial The Passion of the Christ and other religious films to create a biting audiovisual remix, The Mashin’ of the Christ. Gibson’s movie, by the way, was one of the most downloaded films on the Internet, but that didn’t stop the Passion from raking in nearly $1 billion in 2004. Nevertheless, I’m sure the MPAA has reserved a special place in hell for all those Jesus-loving thieves.
Another example of “media piracy” is Robert Greenwald’s in-
dependently produced and distributed Outfoxed. This 2004 documentary focused on Fox News’s Republican bias, and to
demonstrate this the producer needed to include clips from its copyrighted broadcasts. Not surprisingly, the fair and balanced®
network argued that it was an “illegal copyright infringement.”
Given the cable news channel’s litigious history, Greenwald was quite nervous, and the production of the documentary was kept secret in order to avoid a costly legal battle that might have slowed or McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 205
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stopped its production. “I want to make a great film,” Greenwald told the New York Times. “But I’d like to do so without losing my house and spending the rest of my life in court.”
Much like some copyright owners refuse hip-hop artists per-
mission to sample, CBS and PBS-affiliate WGBH, among others,
refused to allow Greenwald to use relevant clips from their broadcasts. For them, Outfoxed was too controversial, and they didn’t want to be associated with it. Fox News certainly didn’t give permission for its broadcasts to be excerpted, but, as Stanford Law Professor Lawrence Lessig stated in an op-ed piece published by Variety, this appropriation was clearly protected by the fair-use statute.
Lessig, who advised Greenwald on copyright matters, reasoned that a commitment to free speech “is a commitment to fighting wars of ideas with more speech, and fewer lawsuits.” He rightly argued, “It is as shameful for Fox to sue Al Franken for using ‘fair and balanced’ as it is for Michael Moore to threaten to sue his critics for defamation. We need more debate in America, not less. And we will get more critical and insightful debate if filmmakers like Greenwald can do their work without the law requiring that lawyers look over his editor’s shoulder.”
Media piracy doesn’t always have to express an overtly political or high-minded statement; it needs only to be a creative act, even of the most trivial kind. Such is the case with The Phantom Re-Edit: Episode 1.1, a version of George Lucas’s Star Wars: Episode I—The Phantom Menace cut by a fan. The adaptation, which has been freely floating around since 2000, significantly alters the role of the much-loathed Jar Jar Binks by garbling his speech and adding sub-titles. Rather than being an annoying, goofy presence, the phantom editor turned Jar Jar into a wizened Jedi knight who actively shapes the story. It’s both an improvement on the original film and quite funny. The creator also made other changes, from plot tweaks to McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 206
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cutting down the film’s running time to quicken its pace.29 Although it wasn’t 100 percent new and original, at the very least this person chose not to be a passive, catatonic consumer.
ALTERING BILLBOARDS ON THE INFORMATION
STUPOR-HIGHWAY
Fortunately for our democracy, intellectual-property laws are less effective in protecting political figures from satirical attacks than other kinds of celebrities. Massachusetts computer consultant Zack Exley demonstrated this when he successfully registered gwbush
.com, gwbush.org, and gbush.org in 1999. Exley created a Web site that closely mimicked the look of the Bush campaign’s homepage, but highlighted what Exley viewed as hypocrisies in Bush’s policies.
The best part of the story is that in a fit of paranoia the Bush campaign bought 260 more domain names, including “bushsucks
.com,” “bushsux.com,” and “bushblows.com.” For at least a year after Bush 2.0 entered office, if you typed in the domain names bushblows.com or bushbites.com, it sent you directly to the official Bush-Cheney Web site.
In constructing the site, Exley was aided by an organization
named ®™ark, pronounced “art-mark.” It’s less a real organization than the brainchild of two men, Mike Bonanno and Andy Bichlbaum. Collectively, they’re known as the Yes Men, and they scroll through numerous pseudonyms that create the illusion that they’re an army of pranksters engaged in widespread subterfuge. (Their anti-authoritarian antics are captured in The Yes Men, a hilarious documentary by Sarah Price and Chris Smith.) Without breaking character, ®™ark presents itself as a corporation whose Web site acts as a think tank that funds nonviolent “cultural sabotage”—
such as Exley’s Web page, and the Barbie Liberation Front. In 1993
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their voice boxes, and “reverse shoplifted” these gender-bending toys back into stores. During Christmas that year, in select toy stores, Barbie grunted, “Dead men tell no lies,” and G. I. Joe gushed, “I like to go shopping with you.” After they sent out press kits to news organizations, the story broke nationally.
“Artmark” also helped promote Deconstructing Beck, a CD that compiles tracks constructed entirely from unauthorized samples of Beck’s music. (Part of the joke, and the serious commentary, was that Beck’s own music is often made out of samples.) Negativland’s Seeland record label released this collection in conjunction with the label Illegal Art. Beck’s attorney, Brian McPhereson, fired off an angry e-mail: “Bragging about copyright infringement is incredibly stupid. You will be hearing from me, Universal Music Group, BMG
Music Publishing, and Geffen Records very shortly.” Beck’s publishing company, BMG, also sent a letter threatening a lawsuit, but the matter was quietly dropped. Although Beck never publicly responded to the deconstruction, it’s likely the hipster musician did behind-the-scenes work to avoid a PR-damaging debacle akin to the Negativland-U2 blow-up.
Because the gwbush.com parody fit with its prankish nature,
when Zack Exley sought help, ®™ark obliged. “In the beginning,”
said Exley, “I wanted to do a copy of the Bush site. Back then I had no reason to think anyone would ever hear about or visit the site.
But I thought it would be funny if the Bush people finally stumbled upon the site and found an exact copy—maybe with a few minor
and unsettling changes.” Exley continued, “I had been to ®™ark’s site, and seen their copies of corporate Web sites and figured they had a program that copied them automatically. I e-mailed them and that was indeed the case.”30 He duplicated the layout and photos on the Bush campaign site, but he filled it with slogans like
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in ®™ark-sponsored acts of symbolic protest—such as inserting
“slaughtered cow” plastic toys into Happy Meals or jumping the fence into Disneyland and demanding political asylum. Responding to his doppelgänger site, candidate Bush was frighteningly candid: “There ought to be limits to freedom.”31 Perhaps it’s the most honest thing Bush said before he was elected, and one that anticipated many of his administration’s policies. Although Bush’s campaign used a cease-and-desist letter to scare Exley into removing copyrighted and trademarked images, they weren’t able to further muzzle him. And when USA Today and Newsweek reported the story, the Web site racked up six million hits in May 1999. In comparison, the Bush campaign managed only thirty thousand that
month.
For the time being, no politicians have successfully won back a domain name that bears their name. In 2002 the World Intellectual Property Organization issued rules stating, “Persons who have gained eminence and respect, but who have not profited from their reputation in commerce” cannot protect their names against “parasitic registrations.” On the other hand, it has become increasingly easier for celebrities to secure control of an Internet address that mirrors their name. For instance, Madonna took control of Madonna.com after her lawyers persuaded WIPO’s domain name–arbitration panel to allow her to do so; it did the same for Julia Roberts, even though her name is a quite common name in the United States.
THE FICTION OF “CORPORATE PERSONHOOD”
In 1993 the artist-formerly-and-now-currently-known-as-Prince changed his name to an unpronounceable symbol or glyph, which he trademarked. In doing so, he pushed the notion of the branded person to its furthest logical extreme. Then, in 1999, Prince’s McLe_0385513259_7p_all_r1.qxd 12/7/04 11:29 AM Page 209
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lawyers began suing fan Web sites that offered MP3 live recordings, archived his lyrics, and reprinted his trademarked logo. Says Alex Hahn, a lawyer who represented one of the defendants, “The notion that a person can change his name to a symbol, ask everyone to use that symbol, and then sue them for using it is legally absurd.”32
Through trademark law, Prince had the power to control the contexts in which his “name” appeared, in much the same way that corporations can restrict the use of their logos.
This case works as a kind of a secular parable. For much of the 1990s, Prince insisted that he should only be referred to as a trademarked symbol, transforming himself into a branded corporate
product. Conversely, under a U.S. legal convention referred to as
“corporate personhood,” businesses are considered to be one of us, they are “individuals.” In an unsettling example of (ill)logical ju-risprudence, the U.S. Supreme Court reinterpreted the Fourteenth Amendment—written to safeguard freed slaves—by defining corporations as “individuals” in 1886. Since the Santa Clara County v.
Southern Pacific Railroad case, corporations receive many legal protections individuals enjoy.
Responding to this line of reasoning, ®™ark (again, another Yes Men identity) offers two thousand dollars to the first U.S. court that imprisons a corporation under the “three strikes” law, or which sentences a corporation to death. “Artmark” also argues that “since U.S. corporations are by law U.S. citizens, it should be possible to marry one,” and it offers a two-hundred-dollar grant for the first person to do so. Another target of the Yes Men was the World Trade Organization, which administers the General Agreement on Tariffs and Trade (GATT), a controversial treaty that governs world commerce. They successfully registered the domain name gatt.org, and soon before the 1999 WTO conference in Seattle it introduced the clone “WTO/GATT Home Page.” The Web site enraged the actual
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WTO director-general, whose name is, strangely enough, Michael Moore. He complained, “It’s illegal and it’s unfair,” but the ensuing press coverage only boosted visits to gatt.org.
In their Web pages and press releases, the Yes Men reappropriate corporate-speak. They flip familiar phrases in a deconstructive attempt to show how language conceals power—how bland-sounding
expressions can hide unsettling ideas. They demonstrated this when the organizers of the Textiles of the Future Conference unwittingly emailed gatt.org and invited a “WTO representative” to deliver a keynote address. The merry pranksters answered in the affirmative, and in August 2001 the Yes Men/®™ark flew to Tam-pere, Finland, to create a spectacle that would make their Situationist forebearers proud. Posing as “Dr. Hank Hardy Unruh of the WTO,” Andy Bichlbaum delivered a speech—wrapped in such terms as “market liberalization”—that favorably compared sweatshops to slavery.
During a subsection of his speech, titled “British Empire: Its Lessons for Managers,” Dr. Unruh dismissed Mohandas Gandhi as
“a likeable, well-meaning fellow who wanted to help his fellow workers along, but