(FXI/IFEX) – The following is a 27 May 2005 FXI press statement: RE: FXI welcomes Constitutional Court ruling on Laugh It Off’s ‘Black Labour, White Guilt’ T-shirt The Freedom of Expression Institute (FXI) welcomes the ruling by the Constitutional Court today in the matter of Laugh it Off Productions versus South African Breweries (SAB) International, […]
(FXI/IFEX) – The following is a 27 May 2005 FXI press statement:
RE: FXI welcomes Constitutional Court ruling on Laugh It Off’s ‘Black Labour, White Guilt’ T-shirt
The Freedom of Expression Institute (FXI) welcomes the ruling by the Constitutional Court today in the matter of Laugh it Off Productions versus South African Breweries (SAB) International, trading as Sabmark International. The FXI was amicus curiae in the case, which was heard on 8 March 2005.
The case turned on a T-shirt parodying the Black Label trademark as ‘Black Labour, White Guilt’, which SAB, as the trademark-holder, objected to on the basis that it diluted their trademark, caused them commercial harm and amounted to hate speech. SAB won their case in the Cape High Court and the Supreme Court of Appeal, leading to the case being referred by Laugh it Off to the Constitutional Court. What is particularly welcome about the judgment is that it was unanimous, which sends a strong message to commercial companies in the country who attempt to trump freedom of expression in future that the Court will speak with one voice in rejecting the Constitutionality of such attempts.
The ruling represents a triumph of freedom of expression over intellectual property rights. The Court has prioritized the right of cultural activists to engage in speech that is critical of the pervasive power of trademarks in everyday life over the right of SAB to protect its intellectual property; in the process, it has opened the space for activists who engage in ‘cultural jamming’ – or the criticism of commercial speech through parody – to have their activities constitutionally protected. Trademarks such as the ‘Black Label’ logo are pervasive in South African public space; they command significant public attention given the financial resources they command to get their messages across. It is correct that cultural activists like the Laugh it Off team are allowed to put their parodies of these trademarks into public space as well, and that this right should be protected. The fact that Laugh it Off gained commercially from the sale of their T-shirt matters little, as the court correctly pointed out, given the fact that only a few hundred T-shirts had been sold, and given the track record of SAB sales since the T-shirt was produced, it had not resulted in significant prejudice to the Black Label trademark (what SABC had termed ‘trademark dilution’). The SAB action can only be interpreted as bully-buy tactics trying to stamp on the rights of ordinary people, and the FXI welcomes the fact that the Court has put them in their place.
The judgement should hopefully ensure that commercial companies will desist from using their financial muscle to play corporate bullies, threatening to run those who parody the commodification of public space out of business.
