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Kembrew McLeod

Kembrew McLeod

Posted: July 20, 2010 11:09 AM

The Day I Killed Freedom of Expression

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I have a confession to make. On October 16, 2004, I killed freedom of expression. This wasn't murder -- it was more like involuntary manslaughter, a death caused by negligence. Just to be clear, I'm not speaking in metaphors. According to the U.S. government, freedom of expression is officially dead: so says the U.S. Patent and Trademark Office (USPTO).

What, exactly, does the USPTO have to do with freedom of expression? On January 6, 1998, this government agency, which decides what can be patented and trademarked, granted me ownership of the phrase "freedom of expression." This trademark was assigned its own registration number (#2127381), and it was approved the same year Fox News became the steward of another iconic phrase: "fair and balanced" (#2213427).

Today, the oddly named "Live/Dead Indicator" on the USPTO's Web site announces that my trademark is "DEAD" (the word is unambiguously spelled entirely in caps, no less). How does one kill a trademark? Before I answer that question, I should explain why I trademarked freedom of expression in the first place, why I brought it to life as an intellectual property. It was a joke, a prank, though a very serious one.

Over the years I have seen how the excessive policing of intellectual property law can create unnecessary obstacles for teachers, researchers, artists, and other creators. This is something I wrote about in my book Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property. (You can download it for free as a Creative Commons-licensed PDF, though I'm sure my publisher would be thrilled if you bought a hard copy as well.) The book's second chapter also shares its title with a documentary I co-produced, Copyright Criminals, which recently aired on PBS's Independent Lens series.

It was this sort of thing that compelled me to trademark Freedom of Expression® over ten years ago. When I submitted my application, it was a kind of dare. Even though I obviously hoped that freedom of expression could not be privatized, the bureaucracy that processed my application believed otherwise. At first the USPTO informed me that parts of my application were "not acceptable" -- but not because the thought of cordoning off "freedom of expression" was troubling.

No one at the USPTO seemed to be morally, socially, or politically unsettled by this notion. Instead, a civil servant lawyer explained to me that it was unacceptable because I had filled out the application incorrectly: "the mark is not typed entirely in capital letters." The USPTO seems to love capitalization.

Six months after dutifully filing yet another piece of paperwork, I received a certificate in the mail informing me that I owned FREEDOM OF EXPRESSION. To be clear, this did not mean that I could regulate the use of freedom of expression in all contexts, because my trademark only covered certain areas (it fell within Class 16 on the "International Schedule of Goods and Services," which covers, in short, printed matter). However, it did give me a monopoly over the phrase in certain contexts, which was funny enough for me, in a black humor kind of way.

If, for instance, the American Civil Liberties Union (ACLU) decided to publish a magazine titled Freedom of Expression, I could have conceivably blocked its distribution with a court injunction. I never did sue anyone, certainly not the ACLU, for flagrantly using freedom of expression without permission, though there were a couple instances when I strategically targeted an "infringer" with a Cease and Desist letter.

In 2003, I paid an attorney to go after AT&T when the telecommunications giant used the phrase -- without my consent! -- in a newspaper advertisement. The New York Times broke my silly story in an article that began with the sentence, "Freedom of Expression, it turns out, may not be for everyone." Although AT&T refused to respond formally to the Cease and Desist letter, I made my point.

The news media became my megaphone and the story has since spread virally, especially on the Internet. I suspect the story was so popular because it contained such a glaring, absurd internal contradiction. The sentence "Did you hear about the guy who trademarked freedom of expression?" performs my critique about the privatization of culture with little verbiage.

You may be wondering, how exactly did I kill freedom of expression®? In order to keep a trademark registration alive the USPTO states that during the fifth year of a trademark's life, the owner must file more paperwork. "Failure to file the Section 8 Declaration," the guidelines state, "results in the cancellation of the registration." Or, to use that jarring, capitalized legal-bureaucratic term, it is DEAD.

I forgot to do so, which resulted in the death of my beloved trademark. I had always planned, in concluding my little performance art piece, to faux-magnanimously return freedom of expression to the public domain, but I didn't think this would occur involuntarily. Nor did I imagine its passing would go undetected by me for such a long time. No fanfare, not even a form letter stating, "Dear Mr. McLeod, we regret to inform you that your right to freedom of expression has been terminated."

Now I must live with the fact that I'm no Swiftian satirist, or even just a prankster with a good idea. Rather, I'm the incompetent jerk who carelessly let freedom of expression die.

Freedom of Expression®

R. I. P.
January 6, 1998-October 16, 2004

 

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