by Naomi Klein
McDonald’s, meanwhile, continues busily to harass small shopkeepers and restaurateurs of Scottish descent for that nationality’s uncompetitive predisposition toward the Mc prefix on its surnames. The company sued the McAllan’s sausage stand in Denmark; the Scottish-themed sandwich shop McMunchies in Buckinghamshire; went after Elizabeth McCaughey’s McCoffee shop in the San Francisco Bay Area; and waged a twenty-six-year battle against a man named Ronald McDonald whose McDonald’s Family Restaurant in a tiny town in Illinois had been around since 1956.
These types of cases may seem trivial, but the same aggressive ownership rules apply to artists and cultural producers who are attempting to comment on our shared branded world. Increasingly, musicians are sued not only for sampling, but for attempting to sing about a patented common dream. That’s what happened to the San Francisco “audio-collage” band Negativland when it called one of its albums U2, and sampled out-takes from Casey Kasem’s American Top 40 radio show. It happened, also, to Toronto avant-garde musician John Oswald when he used his “plunderphonics” method to remix Michael Jackson’s song “Bad” on a 1989 album that he distributed free. Negativland was sued successfully by U2’s label, Island Records, and Jackson’s label, CBS Records, sued Oswald for copyright violation. As part of the settlement Oswald had to hand over all the CDs to be destroyed.
Artists will always make art by reconfiguring our shared cultural languages and references, but as those shared experiences shift from firsthand to mediated, and the most powerful political forces in our society are as likely to be multinational corporations as politicians, a new set of issues emerges that once again raises serious questions about out-of-date definitions of freedom of expression in a branded culture. In this context, telling video artists that they can’t use old car commercials, or musicians that they can’t sample or distort lyrics, is like banning the guitar or telling a painter he can’t use red. The underlying message is that culture is something that happens to you. You buy it at the Virgin Megastore or Toys ‘R’ Us and rent it at Blockbuster Video. It is not something in which you participate, or to which you have the right to respond.
The rules of this one-way dialogue went unchallenged for a long time, mostly because until the eighties, copyright and trademark cases were largely between corporate competitors suing each other for infringing on their market share. Artists like REM, the Clash, Dire Straits and k.d. lang were free to sing about such trademarked products as Orange Crush, Cadillacs, MTV and Chatelaine magazine, respectively. Moreover, the average consumer didn’t have the means to cut and click into mass-produced culture and incorporate it into something new of their own —a zine, a High-8 video or an electronic re cording. It wasn’t until scanners, cheap photocopiers, digital editing machines and computer programs like Photoshop appeared on the market as fairly inexpensive consumer goods that copyright and trademark law became a concern for independent culture-makers assembling their own basement publications, Web sites and recordings. “I think that culture has always cyclically reiterated itself…. Technology makes it possible to have access to and easily manipulate and store information from distant places and times,” says audio pirate Steev Hise. “People will do what they can do.”22
Doing what he could do is what produced John Oswald’s plunderphonics method. As Oswald explains, it grew out of the fact that he had access to technology that enabled him to listen to records at different speeds. “I was doing a kind of manipulative listening in fairly complex ways, and as my interactive listening habits grew more complex, I began to think of ways to preserve them for other people to hear.”23
What most bothers Oswald and other artists like him is not that their work is illegal —it’s that it is illegal only for some artists. When Beck, a major-label artist, makes an album parked with hundreds of samples, Warner Music clears the rights to each and every piece of the audio collage and the work is lauded for capturing the media-saturated, multi-referenced sounds of our age. But when independent artists do the same thing, trying to cut and paste together art from their branded lives and make good on some of the info-age hype about DIY culture, it’s criminalized — defined as theft, not art. This was the point made by the musicians on the 1998 Deconstructing Beck underground CD, produced entirely by electronically recontextualizing Beck’s already recontextualized sounds. Their point was simple: if Beck could do it, why shouldn’t they? Right on cue, Beck’s label sent out threatening lawyers’ letters that quieted down abruptly when the musicians made it clear that they were gunning for a media fight. Their point, however, had been made: the prevailing formula for copyright and trademark enforcement is a turf war over who is going to get to make art with the new technologies. And it seems that if you’re not on the team of a company large enough to control a significant part of the playing field, and can’t afford your very own team of lawyers, you don’t get to play.
This is the lesson, it would seem, of Mattel’s copyright suit against the Danish pop band Aqua and its label MCA. Mattel charged that the band’s hit song “Barbie Girl” —which contains lyrics like “Kiss me here, touch there, hanky panky” — wrongfully sexualizes its wholesome blonde. Mattel went to court in September 1997 charging Aqua with trademark infringement and unfair competition. The toy manufacturer asked for damages and for the album to be removed from stores and destroyed. Aqua won the dispute but not because its case was any stronger than Negativland’s or John Oswald’s (it might have been weaker) but rather because, unlike these independent musicians, Aqua had behind it MCA’s team of lawyers, willing to fight tooth and nail to make sure the hit single was allowed to stay on the charts and the shelves. It was, like Jordan versus Nike, a battle of the brands.
Although the music itself is pure cotton candy, the Aqua case is worth considering because it pushed the envelope on copyright bullying, introducing the idea that musicians must now be wary not only of direct sampling but of so much as mentioning any trademarked products. It also highlighted the uncomfortable tension between the expansive logic of branding —the corporate desire for full cultural integration —and the petty logic of these legal crusades. Who if not Barbie is as much cultural symbol as product? Barbie, after all, is the archetypal space invader, a cultural imperialist in pink. She is the one who paints entire towns fuchsia to celebrate “Barbie Month.” She is the Zen mistress who for the past four decades has insisted on being everything to young girls —doctor, bimbo, teenager, career girl, Unicef ambassador….
The people at Mattel weren’t interested in talking about Barbie the cultural icon when they launched the Aqua suit, however. “This is a business issue, not a freedom of speech issue,” a Mattel spokesperson told Billboard. “This is a $2 billion company, and we don’t want it messed around with, and situations like this gradually lead to brand erosion.”24 Barbie is a for-profit enterprise, it’s true. And brands such as Barbie, Aspirin, Kleenex, Coca-Cola and Hoover have always walked a fine line between wanting to be ubiquitous but not wanting to become so closely associated with a product category that the brand name itself becomes generic — as easily invoked to sell a competing brand as their own.
But while this fight against erosion seems reasonable in the context of brands competing with each other, it’s a different matter when looked at through the lens of aggressive lifestyle branding —and from that perspective, a re-examination of the public’s right to respond to these “private” images seems urgently required. Mattel, for instance, has reaped huge profits by encouraging young girls to build elaborate dream lives around their doll, but it still wants that relationship to be a monologue. The toy company, which boasts of having “as many as 100 different [trademark] investigations going on at any time throughout the world,”25 is almost comically aggressive in protecting this formula. Among other feats, its lawyers have shut down a riot girl zine called Hey There, Barbie Girl! and successfully blocked the distribution of Todd Haynes’s documentary Superstar: The Karen Carpenter Story, a reenactment of the life of the anorexic pop star
using Barbies as puppets (legal pressure also came from Carpenter’s family).
It seems fitting that Aqua member Sren Rasted says he got the idea for the song “Barbie Girl” after visiting “an art-museum exhibition for kids on Barbie.”26 In an effort to have its star doll inaugurated as a cultural artifact, Mattel has in recent years been mounting traveling exhibits of old Barbies, which claim to tell the history of America through “America’s favorite doll.” Some of these shows are put on directly by Mattel, others by private collectors working closely with the company, a relationship that ensures that unpleasant chapters in Barbie’s history —the feminist backlash against the doll, say, or Barbie the cigarette model — are mysteriously absent. There is no question that Barbie, like a handful of other classic brands, is an icon and artifact in addition to being a children’s toy. But Mattel —and Coca-Cola, Disney, Levi’s and the other brands that have launched similar self-curatorial projects —wants to be treated as an important pop-culture artifact at the same time as it seeks to maintain complete proprietary control over its historical and cultural legacy. It’s a process that ultimately gags cultural criticism, using copyright and trademark laws as effective tools to silence all unwanted attention. The editors of Miller’s, a magazine for Barbie collectors, are convinced that Mattel targeted them with a copyright suit because, unlike the uncritical collectors mounting Barbie art shows, the publication criticized Mattel’s high prices and ran old photographs of Barbie posing with packs of Virginia Slims cigarettes. Mattel is by no means unique in its employment of this strategy. Kmart, for instance, shut down the Kmart Sucks Web site mounted by a disgruntled employee, not by using libel or defamation law, which would have required that the chain prove the allegations were false, but by suing for unauthorized use of its trademark K.
When copyright or trademark law can’t be invoked to prevent an unwanted brand portrayal, many corporations do rely on libel and defamation law to keep their practices from being debated in the public realm. The high-profile “McLibel” case in Britain, in which the fast-food chain sued two environmentalists for libel, was one such attempt. (The issue will be discussed in detail in Chapter 16.) Regardless of which legal tactic they choose, the impossibly contradictory message sent out by the producers of these iconic products is the same: we want our brands to be the air you breathe in —but don’t dare exhale.
The more corporations like Mattel and McDonald’s succeed in their goal of building self-enclosed branded worlds, the more culturally asphyxiating that demand may become. Copyright and trademark laws are perfectly justifiable if the brand in question is just a brand, but increasingly that’s like saying that Wal-Mart is just a store. The brand in question may well represent a corporation with a budget larger than that of many countries, and a logo that is among the world’s most transcendent symbols, one that has aggressively sought to replace the role played by art and media. When we lack the ability to talk back to entities that are culturally and politically powerful, the very foundations of free speech and democratic society are called into question.
Privatizing the Town Square
There is an unavoidable parallel between the privatization of language and cultural discourse occurring through copyright and trademark bullying, and the privatization of public space taking place through the proliferation of superstores, theme-park malls and branded villages like Celebration, Florida. Just as privately owned words and images are being adopted as a de facto international shorthand, so too are private branded enclaves becoming de facto town squares —once again, with troubling implications for civil liberties.
The conflation of shopping and entertainment found at the superstores and theme-park malls has created a vast gray area of pseudo-public private space. Politicians, police, social workers and even religious leaders all recognize that malls have become the modern town square. But unlike the old town squares, which were and still are sites for community discussion, protests and political rallies, the only type of speech that is welcome here is marketing and other consumer patter. Peaceful protestors are routinely thrown out by mall security guards for interfering with shopping, and even picket lines are illegal inside these enclosures. The town-square concept has recently been picked up by the superstores, many of which now claim that they too are providing public space. “Essentially, we want people to use the store as a meeting place. A place where people can get their fix of pop culture and hang out for a while. It’s not just a place to shop, it’s a place to be,” said Christos Garkinos, vice president of marketing for the Virgin Entertainment Group, on the occasion of the opening of Vancouver’s 40,000-square-foot Virgin Megastore.27
The building in which Virgin set up shop previously housed the public library, an apt metaphor for the way brand expansion is altering the way we congregate, not just as shoppers but as citizens. Barnes & Noble describes its superstores as “a center for cultural events and gatherings,” and some of these stores, particularly in the United States, do play the part well, housing everything from pop concerts to poetry readings.28 Book superstores, with their plush chairs, faux fireplaces, book clubs and coffee bars, have slowly come to replace libraries and university lecture halls as locales of choice for author readings on the book-tour circuit. But, as with the ban on protests in malls, a different set of rules applies in these quasi-public spaces. For example, when promoting his book, Downsize This!, filmmaker Michael Moore was confronted with a picket line outside a Philadelphia outlet of Borders bookstore, where he was scheduled to read. He told the store he wouldn’t go in unless the striking employees were allowed inside and given some time at the microphone. The manager complied, but Moore’s future Borders readings were canceled. “I couldn’t believe I was being censored in a bookstore,” Moore wrote of the incident.29
As good as the superstores are at dressing up like town halls, no one mimics public space like America Online, the virtual community of chat rooms, message boards and discussion groups where there are no customers — only netizens. But AOL subscribers have, in the past two years, learned some harsh lessons about their virtual community and the limits on the rights of its citizens. AOL, though part of the publicly owned Internet, is a sort of privatized mini-Net inside the larger Web. The company collects the toll on the way in and, like mall security guards, it can set the rules while customers are inside its domain. That was the message that echoed through the virtual commons when AOL’s so-called Community Action Team began deleting messages from discussion groups deemed harassing, profane, embarrassing or just “unwanted.” In addition to screening messages, the team also has the right to forbid virtual sparring partners from ever trading messages again and to suspend or expel repeat offenders from the service and from access to their own E-mail accounts. Some lists —like a particularly heated one on Irish politics —have been shut down for extended “cooling-off” periods.
The company’s rationale is strikingly similar to Wal-Mart’s shelving policy (and Blockbuster’s video rental policy). Katherine Boursecnik, AOL’s vice president for network programming, told The New York Times, “We are a service that prides ourselves on having a wide-ranging appeal to a wide range of individuals. But at the same time we’re also a family service.”30 While few contest that on-line discussion is a breeding ground for all sorts of antisocial behavior (from chronic overposting to sexual harassment), the sheer power that the company has to regulate the tone and content of online discourse has raised the specter of the “AOL Thought Police.”31 The issue, as with Wal-Mart, is AOL’s commanding market share: in mid-1999 it had 15 million subscribers —43 percent of the U.S. Internet service market. Its closest competitor, Microsoft, had only 6.4 percent.32
Complicating matters further, Internet discussion is a hybrid medium, falling somewhere between making a personal telephone call and watching cable television. So while its subscribers may view AOL as a phone company, with no more right to intercept their communications than AT&T has to disconnect unsavory phone discussions, the company has an
other view entirely. “Virtual community” babble aside, AOL is, above all, a branded media empire over which it exercises as much control as Disney does over the fence colors in Celebration, Florida.
It seems that no matter how successfully the private sphere emulates or even enhances the look and feel of public space, the restrictive tendencies of privatization have a way of peeking through. And the same applies not only to corporate-owned space, like AOL or Virgin Megastores, but even to publicly owned space that is sponsored or branded. That point was graphically made in Toronto in 1997 when antitobacco activists were forcibly removed from the open-air du Maurier Downtown Jazz Festival, just as student protestors had been removed from the du Maurier Tennis Open on their campus. The irony was that the festival happened to be taking place in the city’s actual town square —Nathan Phillips Square, just in front of Toronto City Hall. The protestors learned that while the square may be as public a space as one can find, it becomes, during jazz festival week, the property of the tobacco sponsor. No critical material was permitted on the premises.
When any space is bought, even if only temporarily, it changes to fit its sponsors. And the more previously public spaces are sold to corporations or branded by them, the more we as citizens are forced to play by corporate rules to access our own culture. Does this mean that free speech is dead? Of course not, but it does call to mind Noam Chomsky’s view that “freedom without opportunity is a devil’s gift.”33 In a context of media and marketing overload, meaningful opportunities to express our freedom —at levels loud enough to break through the barrage of commercial sound effects and disturb the corporate landlords —are disappearing fast around us. Yes, dissenting voices have their Web pages, zines, posters, picket signs and independent newspapers, as well as plenty of cracks in the corporate armor to exploit —and as we will see in Part IV, they are exploiting them as never before. But when corporate speech is increasingly expressed in multiplatform synergy and in ever more extraordinary displays of branded “meaning,” popular speech comes to look like the tiny independent retailer next to the superstore. As consumer advocate Ralph Nader puts it: “There is a decibel-level quality to the exercise of our first amendment rights.”34