"First Thing We Do, Let's Kill All the Lawyers."

Henry VI, Part 2, Act IV, Scene II.

And no wonder. According to the Authors Guild, "A bill that would drop express protection for "noncommercial use" of a trademark and would weaken the protections for those who use trademarks in news commentary [is being] considered by the Senate Judiciary Committee."  If this passes, you can never have a character drink a Coke in McDonald's in a story ever again without fear of prosecution for trademark infringement.

This move could be motivated by any of several fairly reasonable thought processes: preventing trademark "dilution" (where Xerox becomes a generic synonym for photocopy, or "Hoovering" for the act of cleaning your rug with a vacuum cleaner; both of these instances actually went to court and were deemed uses too common for either Xerox or Hoover to sue anybody over them anymore); more nefariously, making writers and news organizations more reluctant to risk being sued for mentioning the trademark in an unfavorable light; legal groundwork for future extortion. Or it could just be stupidity. I'm betting it's something worse.

Now, I've gone on copyright rants in this blog before, and while I'm generally in favor of protecting the original works of living authors and creators of other sorts, including corporate entities, this strikes me as something that could only be written by short-sighted, anal-retentive lawyers. I see them now, in their corporate lairs, sphincters clenched, snapping and slavering and squinting at one another as they draft the text of an egregiously oversimplified law that will keep anyone from ever uttering the names of the hallowed products made by the people who sign their paychecks. Bwahahahahaha! (Why don't sharks bite lawyers? Professional courtesy.)

Oooo, clever. We'll only ever see or hear trademarked names on packages and in advertisements, then. Genius. Imagine: Coke will become like the name of God to Orthodox Jews: completely unutterable, except, maybe, with the vowels removed. Or the consonants. Or written backwards. And thus does the corporate world parody itself without any help from the world outside.

The fledgling marketer in me is going "WTF? Haven't these people heard of word-of-mouth? Of memes? Of pop culture? Of viral marketing?" And free-speech-advocate moi is nodding sadly in despair at the ghosts of George Orwell and Aldous Huxley, shaking their fingers and moaning, "we told you so!" Meanwhile, the nascent author in me is rubbing her hands in glee and saying, "Fine! Coke, McDonald's et al. You want product placement in my book, pay up, suckas."

Of course, this is already a fait accompli in other media. Remember the Reese's Pieces in "E.T."? That coulda been M&Ms but they said no, and lost out on starting what has become a common trend of product placement in entertainment. (Mini Coopers, anyone?) Now fairly ubiquitous in TV and films, it's still unusual enough in books to be remarked upon. Fay Weldon engaged in it shamelessly in The Bulgari Connection, to much tut-tutting, which Weldon pooh-poohed all the way to the bank. (Frankly, I don't see this as much different from being handed several thousand ducats to paint a ceiling for some pope or other, but Americans like their artists poor and down-trodden.Weldon wasn't even told what to write.)

On the flip side, if this bill passes, books like William Gibson's Pattern Recognition, which is about a woman who makes her living as a trend spotter, would never see print; the permissions fees would be prohibitive. The book is liberally sprinkled with trademarks (since the heroine works in advertising) and one, the Michelin Man, is even invoked in almost totemic way. A rewrite without the trademarks would make the book, not exactly meaningless, but much less meaningful than it is, except in a deeply ironic way. If that's not free-speech stifling, I don't know what is.

So I'm thinking this could sorta backfire on the corporate world a little. Instead of all that free publicity they get when people (real or fictional) say "Dude, get me a Coke, will ya?" when they mean whatever brown soda's in the fridge, we will now have to be careful to say and have our fictional characters in plays, books, TV shows, etc., say, "Dude, get me whatever brown soda's in the fridge, will ya?" You know, it just doesn't have the same ring, does it? And it's downright contradictory to the purpose of advertising, isn't it? Aren't advertisers trying to get people to think of their product more often, not scare them out of thinking about it?

If I were CEO of the Coca-Cola Company right now, I'd be firing me some lawyers. Or looking for something that would eat them.

Comments

[Jen-Luc]

No living creature will bite a lawyer... self preservation. And loved the "sphincters clenched" line. I suspect I may be rififng on that in the future. :)