A Red Cross Against Its Name: Johnson & Johnson

This week Brisbane’s street press mX picked up a story which has been causing me considerable consternation since August: American medicinal manufacturer Johnson & Johnson is suing the American Red Cross for trademark violations over their use of the red cross symbol (left: image from Flickr user Newell the Jewell, under Creative Commons BY-NC-ND 2.0). Initially reported in the New York Times on 9 August 2007, the suit contends that the extension of the American Red Cross’s product line into emergency preparedness and grooming kits violates a long-standing agreement between the parties. The disagreement centres around the entrée into the market of third parties licensed by the American Red Cross who are selling, inter alia, humidifiers, medical examination gloves, nail clippers, combs and toothbrushes, which is deemed to be pushing the boundaries of what a not-for-profit can undertake, in that they compete directly with the J&J product line. The agreement between ARC and J&J dates back to 1895, when J&J was granted the exclusive use of the trademark for ‘chemical, surgical and pharmaceutical goods of every description’.

The president of the ARC, Mark Everson, is reported to have commented that these actions were ‘obscene’ and were such that ‘J & J can make more money,’ and felt that these were bullying tactics towards the non-profit. J&J retorted that they had the ‘highest regard for the American Red Cross and its mission’, and that the action was lamentable, but nevertheless necessary to protect the brand.

As with taking Creative Commons to court, this is an instance of where suing non-profits isn’t a smart move, if we are to appeal to the economic imperative. Certainly, this litigation can help draw lines in the sand as to what is legally acceptable. What it doesn’t do is bolster what is ethically acceptable. Take a minute to read the history of the American Red Cross. Its charter, as endorsed by Congress, is to be active in times of domestic and international disaster relief, and to assist prisoners of war in accordance with the Geneva Conventions. When a corporation confronts these noble aims arguing its right to turn a profit, it can only come off worse.

All About the Attribution? Dump That Idea!

According to the Associated Press, a lawsuit filed in Dallas yesterday has named Virgin Mobile USA and its Australian counterpart, Virgin Mobile Australia, as defendants in a charge of libel and invasion of privacy of Allison Chang, who was unknowingly featured in an Australian advertising campaign ‘Are You With Us Or What?’. Captioned ‘Dump Your Penfriend’, the Virgin billboards and Website ads are alleged to have caused the Texas teenager grief and humiliation.

Interestingly, the suit names Creative Commons, the Massachusetts-chartered 501(c)(3) tax-exempt charitable corporation, as a co-defendant in the action, given that Virgin has been able to use the images because of CC licensing available on the Flickr website, where the image (titled ‘alison for peace’) is hosted. (It is to be noted that the image is now licensed under full copyright, although prior CC terms will persist.) The suit argues that Virgin Australia has not properly acknowledged the photographer, Justin Ho-Wee Wong, on its advertising, thereby not complying with the ‘BY’ attribution terms. As can be seen in a copy of the billboard also hosted on Flickr, there has been attribution made to the stream: http://flickr.com/photos/chewywong. Discussion has ensued about whether individuals should be informed that images are being used under CC, whether model release forms should be sought, and moral rights accrue to those photographed. Fundamentally, the mistake being made here is that this is NOT a copyright issue. It is an issue of defamation, and in certain jurisdictions, privacy. (See Lawrence Lessig's and Joi Ito's posts about the differentiation.) CC is not a scheme which contends with issues other than copyright. However, this will again be a major decision for the success of the flexible copyright scheme, as CC is alleged to be accountable for the actions of advertisers seeking to abide by their terms.

Creators may now come to question licensing under CC, as they may fear where their images ‘end up’. It is an unfortunate episode that the IP and issues of identity have been conflated. More commentary to come as Virgin Australia responds to the charges. In the interim, see more discussion on Slashdot, and on Flickr Central, where photographers are debating the merits of licensing.

Fair Music For All

Free Artists + Fair Play = Fair Music

In the realm of intellectual property, what constitutes ‘fair’ is a legally contested notion, decided on a case-by-case basis. Increasingly, how institutions decide the definition, and how ‘those in the market… are trying to avoid any risk of copyright exposure’ (Lessig), is the ground for heated public debate, particularly amongst artists and their adherents. Given recent reforms and strictures, the time is certainly right for the launch of the Fair Music Initiative, which seeks a globally accepted standard for ‘fair music’. Announced to Cooperation Commons by Andreas Hirsch of Electrolyte, the initiative’s manifesto proclaims the following seven aims:

1. Unlimited freedom of musical expression.
2. Free access to musical expressions.
3. Justice of contract standards securing fair remuneration for the artists.
4. Adequate use of technology for a fair distribution of revenues instead of creating new monopolies.
5. Wide support for fairness and justice in the music business as key elements of cultural diversity.
6. Full recognition of the cultural character of musical products instead of limiting them to mere commercial artefacts.
7. A code of conduct for the music business, so that fairness and justice become the norm and not the exception.

Through the project, Fair Music will ensure that the artist receives their ‘fair share’ of every CD bought and every song downloaded, whilst maintaining complete artistic freedom of expression.

By aggregating recent discussions surrounding the effect of copyright laws on innovation and remuneration, the initiative is clearly seeking to light the path towards an emancipation of artistic practice. The maintenance of cultural diversity looms large on the agenda, the importance of which my colleague Andrew Garton often eloquently and passionately illustrates.

The site points to Good Copy, Bad Copy, a recent Danish documentary which I viewed via Second Life at the iSummit ’07, as well as Before the Music Dies, a title with fair warning to us all. Personally, I can’t envisage a world without (what my artistic friends term) ‘noise’ - beautiful, diverse, profound, and above all, fair to all concerned. Get involved and sign the petition and contribute your thoughts about a free culture future.