Lego of My First Amendment Rights!

This story is a week old now, but I've been away and I had to make a comment about it, because it's just ridiculous and a perfect example of corporate censorship due to abuse of intellectual property law. Here's the rundown:

Spinal Tap has been on tour, a kind of acoustic, old-timers tour (called "Unwigged and Unplugged"), which is pretty funny in and of itself. In addition to playing Tap songs and Folksmen songs, they joke around and show videos and stuff. Here's one of the videos, which was made by a high school kid and uploaded to YouTube and which Tap loved:



They loved it so much, for obvious reasons, that they actually played it at their shows. So this was all fine and good until it came time to put out a DVD of the tour, which would have included some of the kid's Lego video. Long story short, Lego balked.

Julie Stern, a Lego spokesdrone, told the New York Times, "We love that our fans are so passionate and creative with our products. But it had some inappropriate language, and the tone wasn't appropriate for our target audience of kids 6 to 12." (Because corporations apparently have the right to dictate, under the threat of a lawsuit, how consumers use their products.) The article continues:

"Kia Kamran, an intellectual property lawyer representing Spinal Tap, said the band could have prevailed had Lego sued alleging copyright infringement, because Mr. Hickey’s video does not show the brand’s logo and is satirical. But the band did not deem the fight worth the expense, he said. 'In my heart of hearts, I do think this is fair use' of copyrighted material, Mr. Kamran said."

And, after explaining that numerous Lego parody videos exist on YouTube, some with much more "inappropriate" content and pointing out that Lego has not attempted to take them down, the article returns to the aptly named Ms. Stern:

“'YouTube is a less commercial use,' Ms. Stern said. 'But when you get into a more commercial use, that’s when we have to look into the fact that we are a trademarked brand, and we really have to control the use of our brand, and our brand values.'"

Finally, the kid (Coleman Hickey, now 16) who made the video, after acknowledging his disappointment says, "It’s not like I was going to get any money for it, but it’s too bad. Lego has the right to do that, but it’s unfortunate that they don’t have a little more of a sense of humor.”

First of all, young Coleman, Lego does NOT have the "right" to do this. It is not your fault that you think this is the case, because we have allowed corporations to control the way young people are taught about intellectual property and the propaganda that they release is almost never challenged by the news media (which are, of course, almost entirely owned by the same corporations). Lego is merely throwing its weight around because they judged, correctly, that Spinal Tap would not want to pay the gigabucks required to fight them in court - NOT because they thought they had a legitimate case. Who can blame the band? Tap is three comedians in their 60s milking their most popular act prior to retirement. Lego is a privately held Danish company worth hundreds of millions, if not several billion, dollars.

Yeah, it's unfortunate that Lego doesn't have a sense of humor; it's more unfortunate that corporations are allowed to strong-arm artists (whether they are corporate artists or not) and effectively prevent them from exercising their First Amendment right of free speech without getting smacked down. The term for this is "prior restraint."

Second, the writer of this article blithely goes along with - or even creates - the impression that Lego was somehow asserting copyright in this case, by attributing the notion that, if Tap had used the video and Lego had sued, the suit would be based on a claim of copyright, to an IP lawyer (notice, however, that he's not actually quoted saying that). But that's a highly specious assertion.

The United States Copyright Office defines copyright as "a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." Further, copyright protects "original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."

Note that plastic toys do not seem to be one of the protected categories. However, this is not made explicitly clear, as it would perhaps be a waste of time to attempt to list all of the specific things in the world copyright does not protect. Plus, since copyright applies to artworks like sculptures, perhaps a lawyer could make the case that Legos are sculptures and therefore subject to copyright.

It doesn't matter, though, because this dispute is not about a copy of Legos. It's about a depiction of Legos in a video and whether that video can be incorporated into another video. Legos used to be under a patent that prevented other companies from marketing similar plastic bricks, but that patent expired in 1988. Trademark law prohibits someone from calling their similar plastic brick a "Lego," but not from calling it anything else. Trademark certainly does not have anything to say about your "brand values," whatever the fuck that corporatist oxymoron is supposed to mean. Nope, all trademark means is that someone can't make the exact same thing that you do and call it the exact same thing that you call it.

Common sense - and case law, which is mostly all we have to go on in this type of case, since there is not much that is explicit about IP laws and these cases can only be decided by going to court - would seem to suggest that neither copyright, trademark or patent protections apply in this case. Maybe look at it this way: If you owned a Mustang, what's happened here is the equivalent of the Ford Motor Company telling you can't put your Mustang in a movie. If you are under the impression that this is Ford's "right," then you, too, have succumbed to the aggressive propaganda by which corporations have been siphoning up our rights as citizens when it comes to freedom of expression.

As a kid, Legos were my favorite toy, for many years. Now, they largely suck because they went from being a highly interchangeable creative building toy to being sold in super-specialized packs with much less interchangeability and much more cross-branding. That alone is a real shame; but what the company has done in this instance is simply a disgrace.