An early example of non-celebrity endorsement advertising. Farmers got free Rock City passes, souvenirs, and as much as $3 for allowing their barns to be made into billboards.

“Been told 100K followers could get me a publisher. . . w/100k followers I could take over the WORLD!” -Radio storyteller Nora Maki (@hades-noramaki), Twitter, 12/22/2011

I’ve said it before and I’ll say it again: If the Internet is going to make us all stars, we could probably use some celebrity rights to match.

Even if you don’t take a sufficiently spectacular pratfall to star in a viral video, your online social profile is (and arguably, by extension, YOU are) a form of currency sought after by those engaged in commerce.  And, since caches are forever and Big Data is always watching, you might want to be rather thoughtful and deliberate about whom you advertise.  An opposing counsel right now, your current or prospective boss later this afternoon, and your mom & dad tomorrow, will be able to dig it all out and may hold it against you.

Q. So you now claim Defendant is stalking you, yet according to your Facebook history YOU ‘LIKED’ HIM last year. Isn’t that correct?

A. I didn’t know him then, I just ran across his website and it had some useful -

Q. JUST ANSWER THE QUESTION.  YOU ‘LIKED’ HIM. YES OR NO?

Everybody wants friends, connections, followers, minions, droogs, or whatever a given network calls them, because it’s instant cred with strangers. 50 million avatars can’t be wrong even if 30 million of them are robots and the other 20 million are generated by the same 50 people.  So. . . how to get them?  How, how, how?

Here’s what I think:

• A simple mention of a person or entity’s presence on a social network, leaving everything else up to the reader, is the most polite. It’s like the “At Home” cards genteel Victorians used to send out.
• An overt demand for action such as “Follow me on Twitter” or “Like us on Facebook” is a little pushier on a first introduction, but goes down easier if it comes with a reward, such as a discount coupon code.
• Forcing people to personally advertise for you in the course of some other process is Not O. K.   Examples:

• Registering for an event requires you to indicate your attendance on a social-network event page.  This immediately tells everyone who subscribes to your updates, and potentially everybody else in the world, that you are attending.  You might want to think about whether your attendance hints at some characteristic you might want to keep at least partially under the radar.
  • Harvard class reunion? Why not?
  • Harvard Class of 1965 reunion? Hmm. . . maybe not if you’re trying to network your way into NextHotAppCo. (You know they make you sit on little rocking horsies instead of office chairs, right?)
  • “New Miracle Cure for Leprosy”? Only if you’re a medical professional.
  • “PhytosexualCon – Way, Way Beyond Tree-Hugging“?  Maybe if you’re a behavioral specialist.  Maybe.
  • Anything “Anonymous”?  What part of “anonymous” didn’t they understand?
• Placing an order, requesting information, or commenting/chatting/listening requires (or seems to require) that you first“like” or otherwise actively “recommend” the site or product on your social network.
  • This is especially obnoxious when it’s a social network you’re not already on so you spend an extra half-hour joining, waiting for a confirmation message, clicking back in from the confirmation message, filling out a bunch of other stuff, getting distracted by whatever the network’s welcome page waves in front of your face and then — wait, what swamp were you originally trying to drain again?  Oh yeah, ordering that thing.  Well, now the checkout page has timed out so you have to start all over.
  • Letting you complete your process, then making it easy for you to tell all your friends you did it if you want to is a different, benign critter.

Maybe the bigger social networks could help by adding a “Say Uncle” * button meaning “I’m linking my reputation to this entity, but only under duress.”

___________________

For an explanation of how “Say Uncle” came to mean “surrender without dignity, see this learned article in World Wide Words.

What this shirt is suggesting, to the legal eagle eye, is celebrity rights for the rest of us. The shirt has no legislative or judicial backing - yet. But, just maybe, this idea’s time has come:

When people think of intellectual property, they think of patents, copyrights, and trademarks. Maybe trade secrets. But celebrity rights – basically the right to control the use of one’s name and likeness, though other things* can get under the umbrella if it rains hard enough – are another type of IP.

Celebrity rights can traditionally only be claimed by celebrities. Because their faces are their fortunes, the law holds that if someone, without their consent, associates them with something that damages their ability to make a living in their accustomed occupation, that someone owes the celebrity money. Possibly the money that the celebrity lost because of his or her distorted reputation. Possibly the money that the wrongdoer made without cutting the celebrity in on the deal. Possibly both plus punitive damages, if the offense was really egregious. There can be exceptions for parodies that no reasonable person would confuse with the truth, as Jerry Falwell learned to his teeth-gnashing frustration.

Just plain folks didn’t need this protection, judges and legislators felt, because their foibles aren’t likely to be widely publicized.

In many parts of the world, that isn’t true anymore. The ubiquity of digital cameras and Internet connections, the Schadenfreude** inherent in human nature, and the possibility that any of us may become a schlemiel or schlimazel*** at any time, combine to give the Global Public Humiliation Fairy a much wider range of prey. YOU could be next!

This might not be such a healthy development for individual psyches or for society as a whole. If you want to lead, or create, or innovate, or explore, the first barrier you have to overcome is the fear of mockery. This is a big fear: studies have shown that people, on average, fear public speaking more than death. Well, most of us can manage to shrug off an episode of schlemielery or schlimazelry witnessed by less than ten people. Some can bounce back after a goof in front of up to a hundred people. What the hey, eventually they'll forget, right? Now, suddenly, if anybody nearby has a digital camera (and where I live EVERYBODY’S ^&%*# got them), you run the risk of your faux pas being uploaded to a global audience of millions, and saved in cache indefinitely. Years from now, you could get off a plane halfway around the world, and your business contact’s kid could collapse in hilarity at the sight of you, finally gasping out “Dance, monkey boy, dance!” or whatever name your Shameware went by. This prospect is enough to make even a recidivist extrovert like me want to hide under the bed.

Back in 1963 one non-celebrity, Victor DeCosta, a a part-time rodeo cowboy who billed himself as “Paladin” and handed out business cards that said “Have Gun, Will Travel” beginning in 1947, brought suit for trademark infringement and unfair competition, among other things, against CBS, which aired the “Have Gun, Will Travel” TV series beginning in 1957. He believed that CBS had misappropriated his persona to create its protagonist, and his case was pretty strong. Actor Richard Boone, who played the character “Paladin” on the show, looked and dressed strikingly like the plaintiff. Over the next thirty years, four juries awarded him damages and four appeals courts overturned the decisions because the relevant laws, though they kept changing enough for him to sue on different grounds, just never morphed into anything that fit his situation.

We who aren’t celebrities-for-a-living are now sitting ducks for the dark side of celebrity – having our least-flattering moments captured and displayed to the world like those two-bag-ugly cover photos in checkout-line tabloids. Yet we have no recourse, except for a few measly torts whose coverage is woefully incomplete. If somebody PhotoShops your picture so it looks ike you’re kissing a goat, you’ve got an action for defamation – IF you can prove you’ve never actually kissed one in your life. If a hidden camera films you trying on unflattering bathing suits in a store’s dressing room, you can claim invasion of privacy, but if you’re filmed walking around a public beach in a bathing suit with more “southern exposure” than you thought it had, that won’t work either.

Worse, what lawyers (as opposed to psychologists) call “self-help” – for example, investigating whether cameras have yet gotten small enough to fit up an obnoxious photographer’s nose if sufficient force is applied – isn’t an option either. Unfortunately, that’s battery, even if you take the batteries out first.

On the other hand, once EVERYBODY’s got their 15MB of shame online, the playing field might naturally level out again. Sort of like how polite the Old West was supposed to have gotten once everyone knew that everyone else had a gun. In the meantime (since hardly anybody actually knows what the law is) if you’re going to “be there” and “do that,” “getting the T-shirt” might help! As R Stevens says, “Never again will you have to worry about someone making you look silly on the internet. You’ll have beaten them to the punch by doing it first … in real life.”

* Such as the distinctive voice of Tom Waits and the phrase “Here’s Johnny!” used to identify Johnny Carson.

**The German language includes this specific word that means “delight at another’s misfortune.”
*** The Yiddish language, which may have more words for “fool” than any Arctic language has for “snow,” defines a “schlemiel” as someone who goofs up physically or socially, usually affecting others nearby, and a “schlimazel” as a frequent victim of others’ goof-ups. When the first schlemiel spilled the primordial soup, the first schlimazel was the one he spilled it on. And the bystanders who were out of range got some Schadenfreude. And found they wanted more.

1. Some images are traditionally classified “eyes only” for certain individuals or subgroups under certain circumstances.
2. The right to display some images traditionally had to be earned rather than bought.
3. Outsiders displaying the images often do not know or care about their meanings or the traditional rules for how they are to be displayed.
4. Some images are traditionally not intended for fixation in some types of media, or for any type of permanent fixation at all.
5. Even if none of the above objections apply and the image may be embodied in a commodity and sold, people who believe they should be entitled to a share of the proceeds aren’t getting any.

Many people from today’s dominant cultures find it difficult to identify with these issues. After all, most of the “big” religions tolerate, or even approve of, use of their symbols on items for sale to anyone, as long as it’s done respectfully. Members of these religions who see their symbol (for instance, a cross, a star of David, a Buddha, a MashaAllah) on a piece of jewelry, a bumper sticker, or a home decoration think “Oh, good – there’s another one of us.” Religions that encourage outsiders to convert appreciate the advertising, and even those that don’t encourage conversion may approve of the public acknowledgement. However, even they would disapprove of disrespectful use of their symbols – for example, on underwear (Mormon temple undergarments aside) or on toilet-cleaning brushes. On the cultural side, one U.S. example is everyone wearing green and sporting shamrocks – basically, pretending to be Irish – on St. Patrick’s Day, regardless of their actual ancestry. The Irish-Americans, who as a group are now throughly accepted in mainstream U.S. society after a long struggle to amass the mutually-reinforcing resources of wealth and political power, don’t mind this a bit; why shouldn’t the “less fortunate” experience how great it is to be Irish-American for one day a year? However, 120 years or so ago, when American bars and restaurants still routinely posted “No dogs or Irish” signs, Irish-Americans, relegated to the dirty, dangerous jobs no one else wanted (such as coal mining, railroad construction, and police work) might not have cast such a benevolent eye on a bunch of rich WASP posers singing “Too-ra-loo-ra-loo-ra” and sloshing green-dyed beer all over their “Kiss Me, I’m Irish” buttons on St. Paddy’s day. (But, of course, back then, it didn’t happen; even the Irish didn’t really want to be Irish back then).

Just as few people actually wake up in the morning thinking “Who can I oppress today?”, most buyers (and even some makers and vendors) of appropriated symbols are not thinking “Now to steal these folks’ culture, since they don’t have much else! Bwa-ha-ha-haaaa!” They’re thinking, “Wow, this thing looks cool. I’d like to have one, and I bet other people would think it was cool too.” (By this, I don’t mean to excuse appropriation of other cultures’ symbols, but only to offer insight into a common attitude among those who do so).

I happen to know firsthand whereof I speak. When I was seven years old, I became aesthetically infatuated with the star of David because I liked things that changed character depending on how you looked at them (“It’s a star, or it’s two big interlocked triangles, or it’s a hexagon surrounded by six little triangles. Wow! Cool”). My reflex was to make something that incorporated it. (I still have this reflex toward arrangements of shapes and lines I like, but now I think carefully before acting on it). I knew how to sew and embroider, so I made a simple crewelwork antimacassar, with the component shapes in different colors of yarn so you could look at them separately if you wanted, and draped it on our living-room rocker to surprise my (VERY Catholic) parents. Oh, they were surprised, all right! They acted awkward for a minute or two, then told me to give it to our Jewish next-door neighbors. My feelings were slightly hurt at the time by my parents’ apparent rejection of my handiwork for then-mysterious reasons, but now I realize they were pretty diplomatic about it, considering.

And, after all, we all DO know about certain symbols we’re not allowed to copy onto just anything – they’re called trademarks. In fact, artists from some of the same minority cultures that now complain about their symbols being appropriated have, from time to time, created works that, technically, infringed trademarks. They didn’t know they weren’t supposed to use those symbols; they probably couldn’t have found out easily, since even the missionary schools didn’t include intellectual-property law in their curricula; and, wow, some of those symbols looked cool. A great example (because it has a happy ending) is described in Gladys Reichard’s book, Weaving a Navajo Blanket. Back when the Dineh (Navajo) were much more isolated from the outside world than they are today, their weavers, like artists everywhere, scoured their environment for fresh inspiration. Labels on things being sold at the trading post, where the weavers went to sell their work, often provided new ideas. Once, one of the most prominent weavers told the manager of her local trading post that she was working on an exciting new project, but it was a secret. He looked forward to its completion because he always got good prices for her work. Months later, it was revealed: a large, beautifully made. . . faithful rendition of the Ivory Soap label! The weaver was very proud, but the trading-post manager despaired of ever selling it to the tourists and gallery owners who bought most of the local weaving he carried. Proctor & Gamble, the company that made Ivory Soap, found out about it, and – to its everlasting credit – did not file a trademark-infringement action against her, but bought the work for display in its corporate office.

So, you may ask, why don’t these cultures just trademark all the symbols they don’t want people copying? This would work in a few circumstances, but not many. First, the “owners” of the symbol would need to use it, or intend to use it, “in commerce.” Next, the symbol couldn’t be a “functional” part of the product. A religious medal would pass muster because, as a product, it’s a pendant necklace, and could still be one without the symbol on it. Sets of prayer beads might not, because the design is so bound up with the finished object’s purpose. The biggest obstacle, though will arise if the symbol has already been commodified and sold by outsiders (in some countries, if the outsiders registered the symbol as a trademark, and in other countries, including the U.S., even if they didn’t).

Here’s a hypothetical example based on a real situation. The real part: Wal-Mart wants to trademark the “smiley face” in the U.S., but London-based SmileyWorld, which holds a trademark on the smiley in more than 80 other countries, and whose honcho says he ivented it in 1968, opposes it. The Los Angeles County Museum of Art, has a 17th-century Tibetan phurpa (sometimes spelled “purba” or “phurba”) decorated, I kid you not, with a bunch of tiny SMILEY FACES!* (While looking for these links, I also discovered that the Martian crater Galle has looked like a smiley face for who-knows-how-long). Despite their long use of the symbol, the Tibetans (or, for that matter, the Martians) would find themselves unable to use the smiley as a trademark in any of SmileyWorld’s countries and would be vigorously opposed by both SmileyWorld and WalMart in the U.S.

Trademarks, with all their limitations for this purpose, are still better suited for protection of religious and cultural symbols than the other two IP rights applicable to symbols, design patents and copyrights. Patents require novelty and copyrights require originality, and both rights are awarded to the creator of the design. The symbols we’re discussing here are traditional; if anyone remembers who created them, that person is probably not still alive.

No existing IP right can keep symbols from being commodified, or seen, or fixed in a permanent medium, if they’re not supposed to be. Under conventional property law, even people who buy original “eyes-only-classified” religious or cultural artifacts from thieves may be protected as “bona fide purchasers” if they had no reason to know the thief was not authorized to convey the artifacts. Relatively new sui generis cultural-property laws, such as the U.S. Native American Graves Protection and Repatriation Act (NAGPRA) are often the only way to achieve the return of these artifacts. For example, under NAGPRA, museums and collectors were compelled to return Zuni Ahayu:da statues to the pueblo’s priests. These statues of the Zuni twin war gods are traditionally kept in protected limited-access shrines to rein in the gods’ destructive powers; traditional Zunis believe that the thieves’ removal of the statutes from the shrines caused specific disasters and a general spiritual imbalance. Where laws like NAGPRA do not apply, only good security practices by the custodians, or respect for the custodians’ customary rules by outsiders (such as the museums that allow Tibetan monks to destroy their traditionally-temporary sand paintings** after making them for public view) can prevent exposure problems with symbols of this class.

*I’m so profoundly delighted by the Tibetan smiley phurpa that I’ve asked permission to reproduce the photo on this site. Someone told me that the “smileys” are actually meant to be skulls, but skulls degenerate to smileys when you try to make them very small (this probably says something profound about the human subconscious). Skulls are a fairly common element of Tibetan ritual art, so this explanation is plausible.

** The Dineh (Navajo) are another culture famed for their temporary ceremonial sand paintings. Dr. Lori Alvord’s autobiography, The Scalpel and the Silver Bear, contains an account of how an old photograph of a nearly-forgotten Dineh sand painting identified the deer mouse as the vector for hantavirus in the early 1990s. Hantavirus had broken out periodically in Navajoland before, on widely separated occasions when particular atypical weather patterns caused a deer-mouse population explosion that drove the mice (and the viruses they hosted) into the human habitations they normally avoided. The earlier outbreaks, however, had not come to national attention because they were confined to areas that were then extrmely isolated. This photograph saved considerable Center for Disease Control resources and probably many lives, whether or not it was authorized when originally taken.