The Plague of the Trademark

MNspeak.com - Trial Of The Century: Keillor V. MNspeak.com

A Prairie Homeboy Companion

On a Tuesday night two weeks ago, the letter showed up in the mail. It is included below, so you can see for yourself the kind of verbal mastery it takes to make a legal document sound like Keillor's forlorn nostalgic prose.

Let's quickly review the situation: Garrison Keillor -- a liberal comedian! -- is threatening to sue MNspeak -- some blog! -- that uses a t-shirt to poke fun of his mega-gigantic media empire. You'd think we shot Guy Noir or something.

Here's the T Shirt in question. My wife and I are big fans of Garrison Keillor, but any way you slice this -- this is pretty shitty. The most telling item in regard to this comes in the comment section.

You should submit this to Chilling Effects. I went through a similar situation as webmaster for the band Beatallica, and learned a few things:

- Even if you think your use is "fair use", the only way you can prove it is to go to court, and copyright infringement cases typically cost $100,000-$200,000. The system is financially slanted towards copyright holders.

- The more publicity you can get, the better. Shame the bastards, and they'll back down.

The system is slanted toward the copy-right holder. Shouldn't it be the other way around in a system where the First Amendment is supposed to be sacrosanct? It's that way in libel suits. So why the contradiction? Perhaps it's no contradiction for in each case the system sides with the financial interest -- the media in libel law and the trademark holder in the other. Both are making money from the interpretation of the First Amendment. Typically the parodist isn't. And if he or she is, then he or she has the resources to go to court to protect him/herself. The person who is left exposed is the person without money or means for legal protection.

The patent system exists by a somewhat miraculous act of foresight on the part of our Founding Fathers who wanted to preserve incentives for innovators to pursue advance and invention. The patent carves out a protected, temporary monopoly for the inventor so that he or she can profit from the sometimes lengthy, uncertain, and arduous process of development and innovation. Trademarks are dicier. Copyright exists to protect a creator whose work can be easily appropriated. By the same token, trademarks protect the business from imitators who would profit off of their reputation efforts. You can't open a Safeway store and sell groceries without signing a franchise agreement because you are piggy backing on Safeway's commerical efforts. But Beatallica instead of the band Metallica (they of Napster quashing fame)? A Prairie Ho Companion rather than a Prairie Home Companion? The infringement is pretty hard to see. The parody is clear. And the expansive claim of the trademark takes with it a host of possible permutations that are never intended to be protected.

In awarding Metallica trademark protection we never meant to award them protection against anything else that might be remotely similar. This expansive quashing of commericial activity was never intended orginially -- although a fair case could be made that when Congress reauthorized this legislation they knew exactly what they were doing when they expanded trademark protections (they know the side their bread gets buttered on). Trademark and patent law have both expanded in strange ways that are more likely to suppress commerial activity than promote them. If a dry cleaner is the first to have a drive through, by what right does he have to patent this innovation and prevent others form adding this? According to US Courts now, he has lots of rights here. In the New Yorker several years ago, James Suroweicki wrote:

For most of American history, it was next to impossible to get a patent on what the U.S. Patent and Trademark Office called "a mere method of doing business." A business method was considered to be an idea-selling newspapers in the streets, delivering packages overnight-and ideas of this sort were not patentable. But in July, 1998, the U.S. Court of Appeals for the Federal Circuit did away with that principle. The case, State Street v. Signature Financial, involved software that Signature had written to enable it to administer mutual funds more efficiently. But the court's language was broad enough to embrace any business process (as long as it was new and "nonobvious" and had a "useful, concrete, and tangible result"). The gates opened, and in the past five years thousands of business-method patents have been granted. One inventive soul won a patent for a system of using pictures to train janitors. Another got one for describing a way to cut hair with both hands.

Suroweicki points out that when the New York Sun was first published it sold at 1/5 the price of competitors because it was the first paper to employ advertising. Think how much less productive our society would be if no one else were allowed to sell advertising in a publication.