Much like dropping a banner from the window of a fancy hotel where the Governor is giving a talk, or sneaking into a convention to do a magic trick, we risk arrest to amplify a message. A few weeks ago, an opportunity to take my artistic activism to the next level fell in my lap when the US Forest Service sent me a cease and desist letter in reference to a claim that my art was infringing upon their copyright. This is the equivalent of activist gold. Being threatened with 6 months in jail and a $150K fine is no chump change. This ups the ante in a way. This gives me as the artist/activist some leverage because it shows my commitment to the message when I risk arrest to spread this message.
Some people might say that because I am selling t-shirts, it somehow diminishes this action. In my opinion, the fact that I am selling merchandise is the exact reason I got the attention of the US Forest Service. This is the civil disobedience inherent in the case. This is the means by which I can use this threat to amplify the message. It's not news worthy without the alleged law breaking.
I say "alleged" because through extensive research and consulting with some of the best lawyers in the country, it is becoming more and more clear to me that I am not actually breaking any law through selling or distributing online free of charge this parody of Smokey Bear. My parody falls squarely within the definition of "Fair Use" Even if the meme goes so viral that people can never again look at Smokey without thinking "faucet fires" that does not matter if it is indeed a parody as determined by the definition used in legal terms:
"Again, parody is given a slightly different fair use analysis with regard to the impact on the market. It’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it’s not the same type of loss as when an infringer merely appropriates the work. As one judge explained, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)
The awesome part of this is that I am not actually breaking any law. This often happens in Civil Disobedience cases. We test the unjust laws or the wrongful enforcement of non-existent laws by allegedly breaking them. Their threats are empty threats designed simply to intimidate me. The US Forest Service has probably issued thousands of similar cease and desist letters to people all over the world in regards to Smokey. Not once has the US Forest Service actually sued an individual for copyright infringement. This is clearly an attempt to infringe upon my constitutional rights to free speech.
What sets this case apart from the multitude of C&D's they've sent out is context. I'm an activist and I refused to Cease and Desist. The parodies I created are intended to spread an anti fracking message. The Cease & Desist letter provided me with a huge opportunity to amplify this message. So after consulting with a lawyer, I decided to refuse. Instead, I enlisted the help of a willing attorney who wrote an initial letter (which I posted on a previous blog entry).
After he sent the letters, with his approval, I went public with this case. I made a blog post about it and a press release. I sent the press release out to an extensive list of media contacts. I had spoken with a friend who is the editor for Waging NonViolence on May Day about this case. He got excited about it. He assigned one of their writers to interview me about the case. This article: Forest Service seeks to silence Smokey the Bear over Fracking went viral and was republished by Salon.com, Truth Out, Alternet, Socialist Worker, Grist, Yes Magazine, FSEEE, Utne, GoGreenNation, Mother Earth News and countless others. Village Voice ran an interview on their blog. On social media Rainforest Action Network, The Other 98%, Seismologik, The Punk Patriot, Josh Fox & Gasland, Shale Shock and many others shared this story. I was careful to frame the press release to focus on the pending decision the US Forest Service is faced with in reference to the Ban on Fracking in question in George Washington National Forest.
The article in Waging Non Violence went viral. Now, if you google "Smokey" and "Fracking" you will see pages of stories about this case. This is exactly what I wanted to happen so that I could help shed a spotlight on the current state of Fracking in the National Forests. This is how we use art as activism. We amplify our message by allegedly breaking laws. How many times have activists used this strategy? Millions I would say.
this message was not approved by the USDA or the US Forest Service