Rebel without a clause: The trouble with copyright and trademarks in connection with graffiti and street art

Last week, Banksy, the elusive British street artist, or more specifically Pest Control, the company that represents him, lost a trademark case in the European Union Intellectual Property Office. They argued that because Pest Control had not used the image that Banksy created in order to generate income, during a specific period in time, then others (in this case a greeting card company) were free to exploit its use. Although the circumstances surrounding this case are both complicated and interesting, there are a handful of important takeaways from this series of events.

With few exceptions, graffiti and street art fascinates many people because of the way subjects and objects are depicted, the creator’s boldness and originality, and the considerable thought, care and skill that many writers and artists take in crafting their work.

There’s also a transgressive aspect to a lot of graffiti and street art. This work can confront large powerful interests without the necessity of engaging in violent protest that can be so destructive in terms of physical injuries and loss of human lives and property. That is why graffiti and street art are understood to be weapons of the weak.

This does not mean that graffiti and street art can’t be criticized. There are numerous context specific places where the application of graffiti and street art is generally frowned upon even by practitioners. This usually includes hate graffiti and when national parks and places of religious worship become littered with graffiti and street art. (I’m told, however that in Budapest, churches are hit because of their close association with the Communist past). I also find some of the rationales that some graffiti writers and street artists use to justify their work (e.g., like they are simply beautifying an ugly city or neighborhood, unlike museums that charge an admission, they are creating free art, etc.) to be a little hollow.

I find it a strange, almost hypocritical, when graffiti writers and street artists who choose to place their work on surfaces without the consent of the owner yet claim copyright or trademark infringement when the image is used by others to make a profit. I know there is a growing and significant body of law (such as The Visual Artists Rights Act of 1990 in the United States) that has developed in this area, and it attempts to protect the rights of both the artist and the property owner. But the recent Banksy case is different.

I understand that a considerable amount of thought, planning, and labor may have been invested into the creation of many of the pieces, but to my mind it seems disingenuous to simultaneously transgress against a person or that entities’ property and then later claim that the owner or a third party (like a corporation) has now transgressed against them by making a buck and now not playing fair.

To me this would be equivalent to starting a fist fight with someone, the person who you hit ends up kicking your butt, and then you go to the police to complain that the fight was not fair. It seems hypocritical. Either accept the outcome or don’t pick fights with people who may whoop you. And by all means don’t appeal to a higher authority for justice in these situations.

This brings us back to Banksy, and other similar graffiti and street art practitioners. If you place graffiti and street art on a surface without the express permission of the owner of the property, no matter its importance or quality, you give up most rights to that work. And it should not come as a surprise when the person transgressed against is able to profit from the work you did.

Progressives need to be more critical of Assange

Over the past four years, numerous high-profile national political dramas have unfolded, some with international implications. One of them has been the United States government’s attempt to extradite Julian Assange, the head of WikiLeaks, from the United Kingdom to the United States, primarily for computer security violations.

Assange, who until recently overstayed his welcome as a house guest at the Ecuadorean embassy in London, appears to love the spotlight. He has been embroiled in numerous controversies, including a rape accusation, but mostly connected to WikiLeaks release of hacked and controversial information that is stored on private and governmental computers. Extradition efforts date back to 2010 as a response to WikiLeaks public release of classified information from the United States military, e-mails from Hillary Clinton when she was Secretary of State, and later from the Democratic National Committee (DNC) server in 2016.

According to respected sources, the e-mails from the DNC were originally secured by Russian intelligence who weaponized them by turning them over to WikiLeaks. It is also argued that these e-mails contributed to Clinton losing the 2016 election to Donald Trump. If this is true, then Assange, despite his negative public statements about Trump, was one of his major enablers. If WikiLeaks was the bastion of democracy, that Assange has offered as an explanation for his crimes and that so many people believe, why have they not been able to get access to embarrassing information about the Trump organization? They don’t need to look far or deep as this president is a treasure trove of cheating, scandals, corruption, and ostensibly linked to the death of close to 183,000 Americans (and counting) by his admission that “he downplayed the seriousness of the virus.” And if WikiLeaks has information linking Trump to Russia’s Putin, for example, why have they not yet released it?

Over the years a handful of documentaries about or including references to Assange have been produced including The Fifth Estate and We Steal Secrets: The WikiLeaks Story. Most of them paint a sympathetic portrait of a misunderstood man, a champion of freedom of information, speaking truth to power. That is why many of Assange’s fans, particularly those on the left, believe that all or most classified information should be open to the public, and have readily come to his defense. But this blind faith in this man demonstrates how many of his supporters (and casual observers) don’t properly understand the dynamics of open access, freedom of information, and the importance of computer security, domestic and national security and the like.

Some of Assange’s supporters similar to a whistleblower defense, believe that the importance of the revelations he brought to public attention should overweigh the fact that his actions were illegal, and that he should be absolved of his crimes. Moreover, many people go so far as to believe that Assange’s actions demonstrate that he is a true patriot (for which country, only lord knows), and a champion for open access.

I’m not saying that Assange shouldn’t be properly charged, nor stand for trial, nor be afforded all the constitutional protections that we give people who are charged with a crime. But we need to take a more critical approach to Assange, WikiLeaks and their actions. Although the information that WikiLeaks has made public, over its storied existence, lead us to be better informed citizens, to learn more about crimes of the powerful, where does one draw the line? When it comes to public and governmental access to confidential information nuance is needed. That is why democracies such as the United States have established privacy laws and those concerning access and release of confidential and domestic and national security information, including what should be released, when it should it be released, and to whom. Governments must balance secrecy, domestic and national security, and the privacy of individuals.

Each democratic government establishes these hotly debated rules and legislation. We may not like these protocols. We may contest them, but they exist for sound reasons.

Assange did not single handedly help with the election of Trump, but the release of both Clinton’s and the DNC’s e-mails was reckless and appear to have played into the hands of the Russians who helped to elect Trump, a totally non-democratic effort. By extension, Assange is not really a champion of freedom of the press. His supporters should be well advised to brush up on the concepts of privacy, freedom of information, and domestic and national security before branding Assange a champion.

Lies, Damn Lies and Thugs on a plane: Why do Conspiracy Theories exist and what to do about them?

This past week President Donald Trump announced, in an interview with Fox News Host Laura Ingraham, that he had intelligence about masked men, dressed in black, who travelled on a plane to Washington DC to disrupt the Republican convention.

Shortly after this interview aired it was discovered, like so many other of his stories (e.g. Muslims in New Jersey cheering when the World Trade Center was hit, Caravans of illegal immigrants coming to the United States, etc.), that these so-called Thugs were a fabrication. It simply was not true. Trump (or one of his enablers) must of have picked it up on Facebook, and Trump thought that it was important to share.

Trump, as it turns out, is a master-in-chief in orchestrating and disseminating conspiracy theories of all manner, especially ones that argue that there is a so-called “deep state” or shadow government, a group of government bureaucrats and politicians who dominate policy debates and make laws in this country that undermine his power and authority. Trump is known to continuously lie, but yet this does not seem to affect the loyalty of a large proportion of his followers (i.e., his base).

Trump has assisted individuals like Alex Jones, who runs InfoWars, a website and radio show that traffics in conspiracy stories of all shapes and kind to maintain a feedback loop of sorts. There is also the growth of the QAnon movement that alleges that a group of journalists and politicians are actually pedophiles that are operating a global sex trafficking organization that Trump will eventually arrest. The Trumpian conspiracy theories did not simply come out of the blue, he has been engaging in them for the majority of his public career.

The situation of the President spreading conspiracy theories has only been exacerbated by the promotion of terms and characterizations, originating from the White House, like “fake news,” and “alternative facts,” buzzwords that have been popularized during 45’s presidency to gain legitimacy, among people who are prone to distrust news media and properly qualified experts.

It’s easy for most highly educated people to dismiss conspiracy mongers and the people who believe them as gullible fools who are easily taken in. Conspiracy theories are objectionable for ethical, moral, philosophical and political reasons. They are bad because they may force the public and politicians to make important decisions (e.g., laws) that have widespread negative implications. This could lead to mishaps in public policy and practice.

American public discourse is littered with numerous claims about individuals, places, and events. So much so that the public is overwhelmed by these communications. Some of these messages are true, while others are simply embellishments, misinformation, myths, and/or blatant attempts to mislead. This situation has been exacerbated with the advent of the Internet, social media, and 24-hour cable news stations. Many of these platforms let wild conspiracies take root. Questions about what is true and what is false are continuously raised and sometimes answered.

Increasingly, in this media and pundit saturated globalized world, few people have the energy, knowledge, and skills to critically analyze complicated situations and discrepancies in facts and events. Similarly the public rarely has neither the patience nor the stomach for the cool, rational, and detached work of scholars and qualified experts who subject their ideas and analyses to peer review, the gold standard of medical, social, and hard sciences.

What is the effect of information overload, and the publics’ inability or unwillingness to separate fact from fiction? Some of the dominant reactions are alienation, disengagement from the political process, and the growth of misrepresentations, myths, and conspiracy theories to fill the void. A number of questions about conspiracy theories can be asked and have been handled well by others like Barkun, Hofstadter, and Pipes, and most recently by Nichols in his book The Death of Expertise. The more important question to answer is, why do conspiracy theories develop and persist and why does the public believe them? These questions can be answered by a number of interrelated reasons.

First, the obsession with celebrity culture, falsehoods, misleading information, and scandals, and the public’s and other actors frequent inability or lack of desire to question these truth claims as false or based on questionable evidence and assumptions has fostered conspiracy theories. This is why magazines like The National Enquirer, that were prominently displayed and sold in supermarket check outlines used to be so popular and successful.

Second, there’s a virtual army of professional communication officers, crisis managers, public relations specialists and spin doctors whose primary job is to shape and disseminate plausible narratives to an information hungry public via the media. These individuals and the organizations they work for are typically powerful. The goal of this information is to have maximum impact and/or respond to organizational misdeeds, or when bad news is released or comes to public attention. Not all of their objectives are a search for the truth or to set the record straight.

Third, there is an overabundance of experts and quasi experts. Their reputation may be enhanced when the communicator works at or lays claim to a connection with an institution with a legitimate sounding name, or has a social media platform with a significant number of followers, and a willingness of news hungry journalists and reporters look for the next big story to file. Many times the audience cannot distinguish the differences among the experts (and their affiliations) and are often susceptible to believe those with fancy sounding credentials. These people appear credible or in the past have achieved positions that would bestow credibility. What’s more important is that they are perceived by some members of the public and/or their colleagues to be experts. In particular, these individuals may have firsthand experience, be insiders, or have an advanced degree. For example, some of the JFK conspiracists were well-respected M.D.s or even held Ph.D.s. They were not simply a bunch of crackpots.

Fourth, there are an exhaustive number of communication channels that the public has access to, more so than at any point in time in human history. It is not simply through the written word, but there are movies, television series, and radio broadcasts that can disseminate conspiracy theories. There is literally a channel of communication for everyone.

Fifth, and most importantly, conspiracy theories are intellectually cost effective to believe. It’s resource intensive to sift through the evidence, claims and counter claims about the questionable activity of a person, what actually took place, or how did it unfold. That is why conspiracy theories are also attractive to those with a superficial knowledge of history.

How do we remedy the situation? How do we force people to not take conspiracy theories at face value?

Although we have experts who can rebut knowledge claims, and websites like Snopes that specialize in, and whose primary function is the debunking of myths, rumors and urban legends, this is not sufficient enough to be a bulwark against misinformation and conspiracy theories.

If you don’t like hearing conspiracy theories, then one course of action might be turning off the radio, television, computer, or stop listening to the news or reading social media. But this retreatist approach, appears to be simplistic and defeatist in attitude.

Instead, understand that discerning fact from fiction is resource intense. It’s not sufficient to just get a GED, or a bachelor’s degree. The American culture needs to encourage higher education. Encouraging literacy and higher education, particularly in the fields of critical thinking, history, logic, philosophy and political science is woefully needed. Although knowledge for knowledge sake may seem like a luxury, it has numerous secondary benefits like enabling individuals to confront conspiracy theories. Government and private foundations should be encouraged to support these kinds of initiatives. An informed citizenry is a bulwark against misinformation and skullduggery.

Furthermore, analyses of conspiracy theories must be comprehensive, detailed, and thoughtful in order to give those willing to listen a dispassionate analysis of the competing explanations for all sorts of human behavior and natural disasters. We also need to systematically, critically, and successfully analyze the most prominent interpretations of conspiracies, the actors involved, and their respective motivations.

Conspiracy theories undermine the sort of civilized public discourse required for a democracy to properly function. If we value a democracy that is based on fact, reason and empirical research, then it is important to challenge conspiracies regardless of their origins and the message, and for government (big and small), and private foundations to encourage the public to be educated in subjects that will help them in this quest.