MaxBarry.com
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Max Barry wrote the novels Syrup, Jennifer Government, Company, Machine Man, and Lexicon. He also created the game NationStates and once found a sock full of pennies.

Blog

Sat 18
Feb
2006

Corporate Blasphemy

What Max Reckons In many religions, it’s forbidden to speak the name of God. Or at least, the manner in which you can speak it is restricted: for example, Judaism forbids defacing the written name of God, and most prohibit the use of God’s name in a derogatory or insulting manner.

I thought about this when I heard about H.R. 683: the Trademark Dilution Revision Act, which was passed by the U.S. House of Representatives last year and is now headed for the Senate. The most interesting part of this bill—to me, at least—is that it may make it illegal to use trademarked names in fiction. So I might henceforth be unable to publish a novel like Syrup (which is set partly within Coca-Cola) or Jennifer Government (which features Nike, McDonald’s, and others).

Many people seem to think that’s illegal already. When I was writing Syrup, I was often told it would never be published until I took out all the real company and product names. I remember one guy in particular telling me the “Golden Rule” of fiction writing: “Never use a Coke can as a murder weapon.” Because, apparently, Coke would descend on you with an army of lawyers. You could only get away with it, he said, if you used the product in a positive way—for example, your hero loves drinking Coke. But he doesn’t use it to kill anyone.

This sounded ridiculous even at the time. I wasn’t pretending that my novels exposed actual events that had taken place in Coke or Nike; I was just using them as a setting, in the same way I used Los Angeles and Melbourne. I could have invented fictional companies, just as I could have invented fictional cities, but then I’d also have had to work in descriptions and history to build up in your head the kind of company or city I wanted you to see. Coke, Nike, L.A., and Melbourne were all convenient shorthand.

And sure enough, I didn’t have any legal issues in the U.S. with either Syrup or Jennifer Government. In both cases the publisher wanted a legal disclaimer pointing out that they were works of fiction and not based on real events, but that was it. We were never contacted by any company and never sued.

(Things were different in the UK, where free speech laws are weaker. Syrup has never been published there, and the publisher got more and more worried about Jennifer Government the closer we got to publication. Eventually they got a whole bunch of lawyers together to come up with a legal strategy, and this was: wait six months and see if anyone sues the American publisher first. If you had gone to law school for six years, you too might be able to come up with brilliant tactics like this.)

Part of the reason Syrup and Jennifer Government were able to be published was trademark law. This allows one company to sue another if they think they’re using a confusingly similar name or logo; in essence, the goal is to prevent customers from being deceived by imitators. But that’s all: the law contains a specific clause—a clause that H.R. 683 will rewrite—denying companies the ability to block non-commercial uses of their name, such as when it’s incorporated into a novel.

The current situation is exactly as it should be. I don’t believe I should be allowed to deliberately make up lies about companies and pass them off as the truth, nor start selling my own brand of sneakers called “Nike.” But if I’m writing a novel about cola marketing, why should I have to pretend that Coke and Pepsi don’t exist? Companies have made themselves loud, intrusive parts of society; why should artistic depictions of the world have to scrub out any unsanctioned mention of them?

But this is exactly what companies want. They spend billions of dollars to get their names on our lips and their logos in our eyes, but letting us talk about them is dangerous: we might say something they don’t like. They want what Naomi Klein calls the “one-way conversation:” to be able to speak to us—endlessly so, through billboards and television and radio and product placement in your movies and the back of your bus ticket—without allowing us to speak back. Unless, that is, we’re saying positive things about them; unless we’re “on message.” And so they seek complete control over their names, to ban us from uttering them unless it is to speak praise.

Companies used to be pieces of parchment. Then they gained more rights and more protections until they had the legal status of a person; you can now be sued for defaming them. But that’s not enough—of course not; nothing will be enough so long as their inbuilt goal is to endlessly expand. So now they want to be more than a mere person. They want the kinds of rights that have previously been reserved for the superhuman. They want to be gods.

Note: There are some interesting articles on H.R. 683 at Public Knowledge, Ars Technica, and Public Citizen.

Comments

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Henry T. Monkeypimpenstein (#1212)

Location: Wellington, NZ
Quote: "Monkeypimp: Geeky enough to use his lame NS forum name here too."
Posted: 3225 days ago

Meh, eventually all the corporations will merge into omnicorp and absorb all the worlds govts into itself to become the supreme ruler...

Chris McBride (#1977)

Location: Belfast, N.Ireland
Quote: "Plagiarism saves thinking time"
Posted: 3225 days ago

By any chance are the things mentioned here causing the delay of the release of Company here in the UK?

Machine Man subscriber Endingpop (#1478)

Location: Michigan, USA
Posted: 3225 days ago

Intellectual property laws in the US have been totally screwed up for some time. I'm getting sick of it, because the corporations are paying off congressmen to destroy my fair use rights. Until the private citizen has more rights than a corporation the US is going to continue its downward spiral.

Justin Holt (#147)

Location: Rochester, NY
Quote: "www.justinholt.net"
Posted: 3225 days ago

Between something like this, and all of that crap going on in the Middle East, where apparently cartoons justify the declaration of a one million dollar bounty on the head of the person who drew the cartoons, the world is really either headed towards the shitter, or it's going to become a world where nobody communicates with anybody else for fear of stepping on their toes and hurting their feelings.

There goes the brilliant (not really) commercial with Jackie Chan's stunt double, the Diet Coke can, getting crushed by Pepsi.

Zoomy (#1546)

Location: Outside Glasgow
Posted: 3225 days ago

I smell the 4th novel eing written about this law for some reason.

Anna (#2239)

Location: New Mexico
Quote: "We are the facilitators of our own creative evolution. - Bill Hicks"
Posted: 3225 days ago

If you don't stop blaspheming the names of the gods, I'm gonna have to fly all the way out to Australia and kill you with a coke can.

Flynn (#520)

Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 3225 days ago

I saw the original post on Ars Technica about H.R. 683. I looked into the text of the bill.

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.683:

First, there are 4 revisions. The first revision as introduced to the House had the EXACT same wording as the original Trademark Act from 1946. All subsequent versions had the Section 2 (3)(b) changed from:
"Noncommercial use of a designation of source."
to
"Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner."

Now, IANAL, but it seems that this is a "clarification" that does cover fair use "for purposes of identifying and parodying, criticizing, or commenting" on the company or what they do.

It *seems* redundant, but what I'm guessing was that there could be some non-commercial uses that weren't satire that might have been used to tear down a trademark. Not sure what they are. It looks like people will still be able to use trademarks in fiction, etc.

Also, the first section of the revision seems to be the key: "Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services"

This would seem to indicate that fair use IS covered, and it is merely described further, as long as it is NOT a designation of source for the person's goods or services.

I still don't understand *why* the clarification is necessary, but I'd love to have more IP lawyers' reads on this.

I hate the US IP law as much as anyone, but I'm having a hard time reading this clause and seeing how, say, Max using Nike in Jennifer Government *wouldn't* be protected.

shabooty (#637)

Location: D.C./V.A/M.D.
Quote: "I will shake your foundation. I will shake the f**cking rafters. Nobody'll be the same -Danny Bonaduce ....& go visit my blog @: http://www.shabooty.com"
Posted: 3225 days ago

you forgot to mention the mohammed cartoon
:P

Nick Dantanavatanawong (#254)

Location: United States
Posted: 3225 days ago

The end of what Max wrote reminds me of the documentary The Corporation by Mark Akbar. It was really good and interesting.

Eric (#1761)

Location: "The seat of Capitalist Power
Posted: 3225 days ago

Your completly right Max, its a fiction writing, you should be able to write whatever you want. Freedom of speech man.

Machine Man subscriber Max

Location: Melbourne, Australia
Quote: "I'm my number one fan!"
Posted: 3225 days ago

Flynn: Right, it's unclear exactly what effect H.R. 683 will have on artists like me. I guess we don't find out for sure until someone gets sued and the courts make a ruling. But the Authors Guild thinks incidental mentions of corporate trademarks in fiction may not be qualify because the main "purpose" of the novel is not to criticize or parody. In any case, H.R. 683 does seem to strengthen the ability of companies to control how their names are used by the public, and I see that as part of a broad trend.

Chris: Nah, the UK holdup on COMPANY is unrelated. There are actually no real trademarks in COMPANY.

Flynn (#520)

Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 3225 days ago

Wait, did I read that correctly? The Authors Guild is now saying that the main "purpose" of a novel isn't the content, but it's income generating potential?

I mean, if you write a novel that is critical of corporate situations, it's intent isn't the criticism? Some lawyer somewhere believes that it's primarily a moneymaking venture and the intellectual content is just a happy coincidence?

Wow. If that's true, I think the whole "people need IP protection or they won't create anything" meme has gone way too far. I mean, people have been generating fiction far longer than there has been IP protection. I wonder if Shakespeare REALLY thought "Wow, this is a great play in my head. But if I write it, some slimy scribe somewhere may rip it off and I'll get peanuts. Best not to write it, then."

I'm not criticizing you on this one, Max. I'm just curious if the Authors Guild has REALLY moved fiction writing from primarily an art to primarily a business.

Flynn (#520)

Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 3225 days ago

Wow, I put an "it's" instead of "its."

I must hang my head in shame.

Karan (#1376)

Location: Sydney, Australia
Quote: "Quid Quid Latine Dictum Sit, Altum Viditur - Anything said in Latin sounds important"
Posted: 3225 days ago

It's interesting that people are starting to talk about blogs as being "two-way conversations" with the blogger, and in an indirect way their companies - that the public is starting to determine its own take on the press/media/advertising. It'll be interesting to see how far this is actually taken.

Also, that's why I love the fact that you have a blog, Max. You're not just a writer within the context of the covers of your novels, but you have personality and a life developed beyond that. Keep on bloggin', man.

Keely (#1602)

Location: easy-peasy-24.livejournal.com of course!
Quote: "I always wanted to see the lights of Broadway... but then you get there and they're really kind of annoying."
Posted: 3225 days ago

Dear God. (Sorry, guys--cutting out my cussing is like cutting out your cigarettes. 'S hard.) It doesn't matter what the revision does to the clause; I mean, it's bound to be pro business whatever it is, and I think our current line is fair where it is and should not be crossed. This is one of the issues where changing even one tiny detail on paper, will in practice change a whole big ol' chunk of society.

Scott (#354)

Location: Grand Rapids, MI
Quote: "Max Barry tastes like awesome"
Posted: 3225 days ago

This almost reeks of Fahrenheit 451. We should all start memorizing Syrup, or Jennifer Government... before the corporations take it to the next step beyond eliminating use of their names in fiction and start hunting down books that did use their name and taking them out.

It's a sad world we live in when literature gets slowly bit by bit censorized (is that even a word?), no matter on what level.

Michael (#1299)

Location: Northern California
Quote: "Chugachugachoochoo"
Posted: 3225 days ago

It lists exceptions for the fair use clause including "identifying and parodying, criticizing, or commenting upon." It doesn't specifically list "noncommercial use" (as the authorsguild link notes and worries over) but noncommercial use is part of the "fair use law." To not include it would require amending the fair use law itself. At worst- the two laws would conflict- So 'noncommercial use HAS to be implied (which is odd for a law) but otherwise you wouldnt even be able to SAY "coca cola" without being in danger of being sued.

The Public Knoledge site basically points out what the bill is intended for- 'dilution by blurring or tarnishing' by someone selling "McDonnel's Big Nack Burgers" (Blurring) or selling "McDonald's Big Mack Bug Killer" (Tarnishing.) All the examples listed on the site are 'commercial' ones that are playing off the trademark name for financial benifit. It does point out some of the ambiguities of the law fairly well, however- Does it mean that a guy named "Ronald McDonal" can't open his own pest control business called "McDonnel's Pest Control" because his name is SIMILAR to McDonalds?

The Ars Technica site lists a frivolous muscle tactic by Volkswagon against a man who drew a VW Bug made of bugs in his book. As far as the article reads- they never actually threatened a lawsuit- they were just trying to intimidate him from what it sounds (which, if it is repetative or overly insistant, could make them liable to get sued.)

The Public Citizen website makes the best points in regard to your worries- the fact that the bill doesn not expressly include 'non-commercial use' could be seen as an opportunity by trademark holders to sue the pants off anyone qho so much as sneezes something that sounds like 'McDonalds."

Still, this law does not exempt tm material from the fair use law, it only fails to expressly list all the provisions IN the fair use law.

If it's an opening for big business to file frivolous lawsuits- it's also an opening for them to make complete asses out of themselves. I seriously doubt any lawsuits would hold up.

Jason Wallwork (#675)

Location: Peterborough, Canada
Quote: "If it ain't broke you're not trying hard enough."
Posted: 3224 days ago

There's another interesting (maybe disturbing) side to this. Many console games, like car and hockey games, profit from having logos included from various companies. It increases revenue to the publishers and makes the game more realistic (according to them). Couldn't this bill potentially turn this practice on its head? If you want to mention Coke in your book or game, you'd have to get permission from Coca-Cola first and they could charge *you* instead. Maybe those companies are thinking this could be an alternative source of revenue for *them*.

Neil (#943)

Location: Manchester, UK
Quote: ""Democracy is the worst system, apart from all the others." - Churchill"
Posted: 3224 days ago

So many thoughts, so little time...

When I was growing up, I always thought that mentions of an actual company or product in a creative work constituted advertising, à la Bulgari Connection, but I eventually realised that they weren't. What still gets me, though, is when comic strips use the Trade Mark or Registered symbols - I can't shake the feeling that they're being ironic. To me, the use of ® or ™ in a fictional setting implies to me that the trademark in question is part of the fiction (and a few do use it in that fashion). No one would actually mention that something was a trademark if they were speaking about it in a normal context, so why do so many writers seem to feel the need to draw attention to them?

A couple more things... Michael: I recall a few years ago a restaurateur was successfully sued in the US under existing laws for calling his eatery "DiCaprio's" on the grounds that this violated Leonardo DiCaprio's right to his name, even though it's a common enough name.

There was also a case in the UK a few years ago, where French Connection UK, who took great pleasure (metaphorically speaking) in playing on the appearance of the word FCUK, applied for and were granted trademarks for all twelve permutations of those four letters. This later meant that the Young Conservatives weren't allowed to rename themselves "Conservative Future UK" as this would violate the CFUK trademark.

Given what companies are, I entirely understand French Connection's decision to apply for those trademarks - the more control the better. What I don't understand is why they were granted them when a) they obviously had no intention to use them, only to deny them to others; b) they are abbreviations, not names; and c) they applied for series of letters rather than the specific way in which they were to be displayed.

And to close on a pedantic note: Scott, I think the word is "censored"; Eric, this is about freedom of expression, not freedom of speech... unless you're taking Max's novels too literally...

jacob (#2241)

Location: tx
Quote: "those who are willing to sacrifice freedoms for security deserve neither freedom nor security"
Posted: 3224 days ago

This is an easy fix, everyone e-mail your senators and tell them you want them to vote down this bill.

If there's a way to change a politicians stand, it's to fill his inbox with angry letters from constituients (not sure of spelling)

Grace (#1225)

Location: Melbourne aka The Cliffs of Insanity
Quote: "I refuse to have a battle of wits with someone who is unarmed."
Posted: 3224 days ago

Sounds like a logical outcome of corporate sponsorship of political parties to me.
It'll happen in Australia soon enough.

Unless of course it's already been decided on behind closed doors and they haven't deigned to tell us yet...

>:[ *rant*

Chris (#2156)

Location: Melbourne, Aus
Quote: "somebody said something once. i can't remember what it was."
Posted: 3224 days ago

Grace, Max didn't make us a state of America in JG for nothing - us copying them is just nother drop of Johnny Howard's saliva on the butt of George Bush.

Max, you're scaring me. Have you never heard that ignorance is bliss?

I tend to invent companies as i write and am now wondering if i do that as a subliminal precaution. i'm so gonna have to lie down on the couch and analyse this one.

They won't be able to do it. What'll happen to pop art? how many existing books would they have to censor? Those crazy funsters are just messing with us. Aren't they?

Rod McBride (#688)

Location: Gardner, KS
Quote: "www.MidwestRockLobster.blogspot.com"
Posted: 3224 days ago

Image is everything: I work for an ad specialties manufacturer, and lots of our customers want personalized sports schedules. But pro sports leagues get their lawyers into it if you use franchise names, which leads to ridiculous schedules in approximately team colors with headings like 'Denver Football Schedule' or 'St. Louis Baseball 2006,' as if people don't know a blue and orange 'Denver' football schedule is the Broncos.

I don't think we should have the right to appropriate the logo, but you'd think it would be fair usage to refer to, say, the Chicago Cubs by name (cities with two franchises are always a pain in the butt with these kinds of things).

So I'm only mildly surprised at the leglislation. It's a bit of a catch-22 for the marketing people. Does Coke really not want free publicity? I don't know if I upped my cola intake when I read 'Syrup,' but every time I re-read 'Confederacy of Dunces' I eat hot dogs at about ten times my normal frequency.

Which is why if I was calling the licensing shots at a professional sports league, I'd only get bent out of shape with true counterfitters trying to ape the merchandise of licensed vendors. Anything else is free publicity.

Hobbie (#1359)

Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 3223 days ago

Hmm. From what I can see, this isn't necessarily a fast trip down the toilet for freedom of expression. As has been said earlier, I don't see the need for re-clarifying a law, but then I'm not a lawyer or a corporation. Perhaps it is some kind of feeble manipulation, but apart from calling attention to itself and illiciting this kind of debate on websites, I don't see what it's supposed to achieve.

All the same, I'd be worried about making films of Syrup and Jennifer Government before any serious changes do arise. Tactically speaking, this could just be a probe, to see how people respond, and if everyone but us here ignores it, they could try and introduce a more restrictive law altogether under a similar banner.

Machine Man subscriber Adam (#24)

Location: Morristown, Indiana
Quote: "Why do I blog? Simple, because Max Barry blogs."
Posted: 3223 days ago

Mon. July 17th 1947

I HATE AMERICA/CORPORATIONS...BLAH!BLAH!BLAH!

I just realize that I could never be lawyer. I have no concept of how laws really work. I tried to understand(through reading the blog/comments). It's left me utterly confused. So there is only one childish method of dealing with this problem that I can use...

insult/disagree everyone who is smarter than me(and that actually understand it)...

Man, I don't see what the big problem is about these corporations not wanting their names on things. It sounds perfectly reasonable. I think that corporations should get to do whatever they want. Corporations spent millions of dollars on developing marketable names. They don't want to see all of there money thrown down the drain when some crazy foreign author writes a book mentioning their "godly" names all over it. It's blasphemy! Max Barry should be stoned!

-adam

PS controversy=attention

Hobbie (#1359)

Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 3223 days ago

Hookaaay. So. Who else wants to line up for a shot at Adam?

Scott (#354)

Location: Grand Rapids, MI
Quote: "Max Barry tastes like awesome"
Posted: 3223 days ago

Silence #1359. You have no right to silence the speech of #24. As your superior number I demand you apologize!

::cough::

Machine Man subscriber Adam (#24)

Location: Morristown, Indiana
Quote: "Why do I blog? Simple, because Max Barry blogs."
Posted: 3223 days ago

Wow! I didn't know that being a low number on max barry's site could give me so much street cred. It's like after I became member number 24, people like Scott started standing up for me. I guess this site is a lot like golf. The lower the number , the better you are. I guess it also makes it the opposite of money and your bank account. The lower the number, the more it sucks being you.

-adam

Rick C (#2221)

Location: San Francisco, CA
Quote: "Dulce et decorum est pro patria mori"
Posted: 3223 days ago

Yeah, it's really sad.

I think it's quite a shame that things in the States are going this way, really.

Flynn (#520)

Location: Chicago, IL USA
Quote: "I love deadlines. I like the whooshing sound they make as they fly by."
Posted: 3222 days ago

Shouldn't Max be #0 then? ;)

Michael (#1299)

Location: Northern California
Quote: "Chugachugachoochoo"
Posted: 3220 days ago

Ooh, I didn't know we could start with an 0. I want to be 007. Actually, how bout 0011. That would be cool. Maybe 007-11? That has a nice ring to it. Crap I'm being sued by a convinience store! Thanks a lot MaxBarry.com!

Hobbie (#1359)

Location: Cornwall, England
Quote: "There was a little man in his hair!"
Posted: 3220 days ago

I'm not a number, I'm a real man!

Honest...

HAL 9000 (#271)

Location: Boston
Quote: "Let them hate me, so long as they fear me."
Posted: 3213 days ago

Not all companies sue when someone talks trash... some send donuts (in good Company style):

http://www.penny-arcade.com/2006/03/01

[See the last post on the page, with pics. Penny Arcade 'dissed' Sony Online Entertainment, who responded by sending 1200 donuts. I'd call that sweet revenge...]

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