Annals of Private Property #1: Who Owns the Smiley Face?

Fundamentalism is not simply an affliction of religious zealots. It takes over the minds of secular people, too, and often manifests itself in a religious-like zeal to defend property rights at the expense of all else. Because I keep encountering ever-more extreme examples of this pathology, I thought it would be useful to start a occasional blog post, the Annals of Private Property, that will document the lurid extremes now dictated by the theology and veneration of property rights.

Let me inaugurate this feature by citing the epic trademark battle in which Wal-Mart is engaged over the ownership of the “smiley face.” If ever there was a cultural icon that emerged from the commons, or at least acquired value through its social circulation via the commons, ol’ Smiley is it. It’s been around for decades as a shared icon of dubious taste. But now the economic leviathan, Wal-Mart, is claiming that it, and it alone, owns the smiley face image, as a trademark.

While there are a number of self-styled “inventors” of the smiley face, as Wikipedia documents, it’s a more debatable proposition who should be able to own and control the image. A smiley face can be traced to a 1953 film advertisement; to a 1963 ad for State Mutual Life Assurance; and to SmileyWorld, a London-based company, which claims it came up with the image in 1968 and trademarked it. But the smiley face really took off, culturally speaking, in the 1970s, when Murray and Bernard Spain used it to sell all sorts of tacky novelty items associated with the sappy phrase, “Have a nice day.” A fad was born.

Over the years, the smiley face has been used in countless video games; as a logo for Microsoft’s “Bob” software; as an icon of the acid dance music culture of the U.K. in the 1980s; and as a model for the computer “emoticons” like :-).

Big companies like Wal-Mart don’t like the idea of collective ownership of anything, or even the idea of culture. That would mean sharing, and the neo-paleolithic market mentality has trouble with that concept. So Wal-Mart is engaged in a legal dispute with SmileyWorld over the global rights to the image. (_The New York Times_ of July 5, 2006, has a lengthy account of the litigation.) The case is likely to be decided according to the arcane complexities of trademark law, which is more an artifact of corporate lobbying than the public’s expressed interests.

That said, the struggle over ownership of the smiley face helps underscore how value is often a socially created phenomenon. Why should Wal-Mart be able to privatize an image that gained currency, and thus value, through open social circulation, well before Wal-Mart adopted it?

Fred von Lohmann of Electronic Frontier Foundation offers up another example of this phenomena. The Walt Disney Company is renowned for seizing beloved cultural stories and images, privatizing them and then using its market power to erase nearly all memories of the antecedent stories and images. (Examples: Snow White, Br’er Rabbit, The Jungle Book, Treasure Island, Pinocchio.)

Now we hear that the Walt Disney Company intervened to stop the parents of a child who had died from putting an image of Winnie the Pooh on the child’s gravestone. According to a UPI account (June 23, 2006) with the dateline Clacton, England, Disney told the parents that such a use of the Winnie the Pooh image would violate its copyright. Stonemason Aaron Clarke was quoted as responding, “Disney make billions of pounds every year from children but they won’t let a family put a picture on a stillborn baby’s headstone. It is ridiculous. The family are upset enough as it is.”

Stories like these should prompt us to ask: Do large corporations really think that they exist in grand isolation from the rest of society, and that they can participate in a culture yet claim absolute property rights, without any concessions made to the commons?