Techdirt has a great write-up about one of the strangest little copyright stories I’ve read this week. The story involves an anti-litter campaign launched in my own fair city recently, which cleverly used the letters on brand-name packages to spell out messages. From the article:
“The campaign slogan was, “Littering says a lot about you.” The ads featured discarded candy boxes, plastic bottles and other packaging arranged to spell the unflattering message that littering conveys.
The combinations included a bag of Lay’s potato chips and a Krazy Glue package arranged to spell “Lazy”; Reese’s Pieces and a bottle of Gatorade put together to spell “Pig”; Alka-Seltzer and Goldfish crackers saying “Selfish”; and a pack of Sweet’N Low and Lifesavers put together to say “Low Life.”
The issue came up when the owners of the brands used complained that they were concerned the use of their recognizable brands would send an unflattering message and ‘damage’ the brands in question. As the write-up points out, that’s not really the issue. The remixing they have done here is almost certainly fair use, and there is no reason anyone would confuse these ads with product promotions or non-promotions or anything other than an anti-litter ad.
But, as in most copyright and trademark cases, it was cheaper and easier for the city to cave to the pressure than to actually go to court to argue this one. So they pulled the ads, and the matter is concluded.
Those who follow these stories will of course recognize a familiar pattern at play. This is not the first time a legitimate fair use was squashed because it wasn’t worth it to fight for it. Obviously at some point, someone has to fight, or else there will be no case law to support legitimate uses. But the fight will not be over this one.
There’s a quiet little “rule” those of us who write fiction learn. If you use a trademarked brand is a good way, it’s probably okay. If you poison someone with a trademarked name, you better run for cover. The same goes for real restaurants, etc.
In other words, positive mention is probably okay, negative mention is possible financial suicide.
Some publishers go so far as to not allow trademark names, etc., to be mentioned.
Joanne, if your city’s leaders are clever, they’ll give those ceases and desist letters some bad publicity in the local press—and take care to send a copy of all that bad press to the CEO and the board members of the company. Stress in the news how much it cost the town to replace that ad campaign and mention the companies involved repeated. The reporters might even contact the company’s executives for comment.
These companies—I suspect their lawyers colluded—want to look good. Make them look bad. Letters from lawyers, these corporations may reason, are cheap. Throwing in bad press coverage, though, will flip that cost/benefit equation.
An additional note. It is possible to show decency and real class when trademark issues arise. Jack Daniels whiskey did just that here:
http://www.huffingtonpost.com/2012/07/23/jack-daniels-book-cover_n_1696453.html
The company even offered to pay the cost of a remake.