February 6, 2003 - Trademarking 'Freedom of Expression'

Broadcast on "Coast to Coast": February 6, 2003

AA: I'm Avi Arditti with Rosanne Skirble, and this week on Wordmaster -- meet Kembrew McLeod. He's an assistant professor of communications [studies] at the University of Iowa.

A few years ago, Mr. McLeod registered a trademark, which means he bought the rights to exclusive commercial use of a certain graphic design or, in this case, a phrase. There's nothing so unusual about that. Businesses trademark slogans all the time. What is unusual is that the trademark Mr. McLeod registered is "freedom of expression."

RS: The first person to point out the irony in this is Kembrew McLeod himself: owning the phrase "freedom of expression" means the power to restrict freedom of expression. Recently his lawyer sent the big telecommunications giant A-T- and-T a letter warning the company against using the trademark in an advertisement.

McLEOD: "A trademark basically gives the owner of the trademark a monopoly over the use of that image, phrase, whatever the trademark is."

RS: "But how can you trademark a common expression?"

McLEOD: "I'd like to turn that question around to the United States Patent and Trademark Office, which is the entity that gave me the trademark 'freedom of expression.' Because initially when I first applied for it, it was primarily just a test. It was, you know, this little socially conscious prank in which I wanted to see if the U.S.P.T.O. would give someone a monopoly right over the use of 'freedom of expression.'

"Fortunately for me as a critic, but unfortunately for every other American citizen, the U.S. Patent and Trademark Office didn't see the idea of someone owning 'freedom of expression' (as being) morally, socially or political unsettling, and they gave it to me."

AA: "Did anyone call you and say why do you want to own freedom of expression?"

McLEOD: "No, you just have to demonstrate that the mark has been used in commerce, and Freedom of Expression is the name of a publication that I've been putting out for eight years."

AA: "So you now own the rights to one of our basic American freedoms?"

McLEOD: "Yes."

AA: "Are you doing this to sort of protect it from big business? What are you doing with 鈥榝reedom of expression,鈥?how are you keeping it safe?"

McLEOD: "First of all, I kind of joke that we're lucky at least that I trademarked 鈥榝reedom of expression鈥?before Disney did. But the main reason is it's a very kind of, not shocking in the most extreme sense, but it's a way of kind of making people snap to attention, pay attention to the way in which much of our culture has been privatized. Our basic grammar and syntax of popular culture has been trademarked."

RS: "What do you hope happens because of this exercise?"

McLEOD: "Basically, without doing this, without creating this kind of spectacle, there's no way that I would have been able to get -- well, push my agenda, push my concerns to the front and have it run as the lead story, a story about intellectual property law, run as the lead story on local news, which typically covers either crime or farm crises in Iowa or whatever."

AA: "And how old are you?"

McLEOD: "I'm thirty-two."

AA: "Thirty-two, you've taken on A-T-and-T. Have you heard from them yet?"

McLEOD: "I haven't heard from my lawyer yet. They did already have a prepared statement, though, about me, that I'm a self-proclaimed prankster and this is just a frivolous exercise, blah, blah, blah." RS: "In defense of the trademark, isn't there -- there must be a reason to have a trademark to begin with. So are you saying that this is just out of balance?"

McLEOD: "Yes. I'm an artist -- I'm a filmmaker -- and a lot of my friends are writers, and I'm a writer also. I make money off royalties and a lot of my friends do. I don't want to destroy (the) system. That would basically keep friends and other people like me from making money from their art.

"I don't see a problem with copyright and trademark in theory, but the problem is the way it's been used and applied by big companies in a way that overreaches the original intent -- for instance, trademark. So an artist that decides to incorporate a Disney character in a satirical way in their art, there are many examples of artists who have received cease-and-desist letters from Disney.

"And the whole point of trademark is basically to avoid confusion in the marketplace. We don't want consumers to be confused about whether or not they are picking up the authentic Tide detergent, washing detergent, or not. That's why trademarks exist."

AA: "Has anyone come to you so far and said 'we want to start something called Freedom of Expression, may we have your permission or buy a license from you?'"

McLEOD: "Yes. There's a skateboard company that came to me. I guess they were doing a search on the Patent and Trademark Office Web site and found that I had trademarked 鈥榝reedom of expression,鈥?and they wanted to print T-shirts that say 鈥榝reedom of expression.鈥?

RS: And you know what -- he told them go right ahead. Kembrew McLeod is an assistant professor in the Department of Communications Studies at the University of Iowa.

AA: He's lent his trademark certificate to an exhibit called "Illegal Art," on display this month in a Chicago gallery. You can see a copy of it on our Web site, voanews.com/wordmaster. And feel free to express yourself by e-mail -- our address is word@voanews.com. With Rosanne Skirble, I'm Avi Arditti.