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BATTLE OF BLOEMFONTEIN : BLACK LABOUR APPEAL

MONDAY 30 AUGUST, BLOEMFONTEIN – LAUGH IT OFF PROMOTIONS appeared in the Supreme Court of Appeal today to challenge a Cape High Court judgement that their controversial “Black Labour; White Guilt” t-shirt bordered on hate speech and exploited SAB’s “Carling Black Labour” trademark.

Laugh it Off used their constitutional right to free speech as a legal defense in response to an application of trademark infringement brought by SAB.

Five Appeal Court Judges heard ‘Heads of Argument’ from Laugh it Off’s Senior Advocate Peter Hodes, SAB’s Philip Ginsberg, as well as Gilbert Marcus appearing on behalf of the Freedom of Expression Institute (FXI), who were there as amicus curiae (friends of the court).

Arguments were largely confined to the realm of trademark law, with much of the focus on American case-law. These cases highlighted legal precedents involving the rights of artists and that of the brand. The link between the Black Label brand and labour exploitation was questioned by SAB, and the validity of Laugh it Off’s social commentary was championed by Gilbert Marcus.

Laugh it Off’s legal team was confident that headway in what is a very complex case was made, and that the door to take the matter further is still very much open should the court reach an unfavourable judgement. Laugh it Off feels that regardless of the Appeal Court decision, this is a matter that urgently needs to be heard by the Constitutional Court, as debating one’s right to freedom of speech within the confines of trademark law has its obvious limitations.

Judgement was reserved.

(This is the third time the two parties have appeared in court. In December 2003, a ’security for costs’ application brought by SAB was dismissed by Judge Roger Cleaver with costs awarded for two council. SAB were demanding security for legal costs they estimated to be in excess of R350 000. In December 2003 judgement Cleaver ruled that, “the issues between the parties are important and novel ones which in my view are deserving of a definitive judgement by the Supreme Court of Appeal?. Closing the door to (Laugh it Off), which is a likely result of the granting of the relief sought by (SAB), would deny (Laugh it Off) an opportunity to have its dispute with (SAB) determined by a court of law simply by virtue of its financial position.” This small, but significant victory for the t-shirt satirists confirmed Laugh it Off’s ticket to Bloemfontein’s Supreme Court of Appeal, adding another twist to one of the country’s most vehemently debated court cases.)

Noiseweek Issue # 106 -August 2008

A South African who has the good fortune to spend his winters in France tells Mr Nose that that country, too, is happily endowed with its very own Justin Nurse: a T-shirt mocker called Thierry Boeuf.

Apparently Boeuf has been creating T-shirts which take the piss out of the likes of Lacoste and Heineken. Both those companies have now sued him.

Heineken’s action demonstrates that the men at Heineken not only have small dicks; clearly they’re still not on speaking terms with their erstwhile friends at SAB, following the tiff about Amstel. Had they been, SAB would have told them what happens to corporate and other moguls who don’t have a sense of humour: in SA, when SAB dragged Nurse to court for his parody on Black Label’s logo (”Black Labour/White Guilt”) they got told by the Constitutional Court to grow up and laugh it off.

When the US manufacturers of the Barbie doll, Mattel,completely lost their cool because a Scandinavian pop group parodied Barbie as a “blonde bimbo” (isn’t that what we all thought Mattel had intended her to be?) the Federal Court told them to “chill”.

A year earlier Mattel had lost another case when a court ruled that an American artist was within his rights to use Barbie dolls in his work. Tom Forsythe’s photographs depicted the blonde in sexually compromising positions. The court ruled on that occasion too that parody of Barbie was an acceptable activity.

Apparently ignorant of all this, Heineken is mirroring SAB’s stupidity and suing Boeuf for substituting the words “Bien Plein” (”Had Enough” – literally “very full”) for “Heineken” in an imitation of their label.

But Thierry’s main target has inevitably been that funny little man who rushed in an orgasmic flurry to President Mbeki’s aid recently – when the lights went out, remember? – bearing offers of expensive French technology (commission subject to negotiation).

We refer, of course, to French President Nicolas Sarkozy.

Now you might think a five-foot-tall Hungarian, known for his right-wing views and love of things American, who goes on to become president of La Republique and then promptly ditches his wife for a six-foot model whose tits are firmly in the public domain, might have learnt to handle the odd poke.

In the ribs.

But, no, unfortunately humour is another thing Monsieur Sarkozy is short of: he, too, has sued Boeuf.

It seems Sarkozy and Heineken are relying on France’s courts to drag the country back to darker ages

when mocking the rich and powerful could earn you a date with Madame La Guillotine.

http://www.noseweek.co.za/

2008/07/31

Laugh It Off again faces wrath of breweries
Nazma Dreyer
November 11 2004

SAB Miller is once again hauling Laugh It Off (LIO) before the Cape High Court – this time to stop the small T-shirt company’s annual publication and calendar.

This is the second time that LIO is doing battle with the second-largest brewery in the world.

In 2002 SABMiller took LIO to court over its T-shirt that sported the words “Black Labour, White Guilt. South Africa’s lively lusty exploitation since 1652. No Regard Given Worldwide.”

The words on a Black Label bottle read: “Black Label, Carling Beer. America’s Lusty Lively Beer. Brewed in South Africa.”

Earlier in 2004 the Supreme Court of Appeal rejected LIO’s appeal against a Cape High Court decision in favour of SABMiller.

Justice Roger Cleaver found the slogan was not a “harmless, clean pun” as LIO had argued, but “bordered on hate speech”.

Now SABMiller has applied for a fresh interdict against LIO to stop the printing of its annual youth publication and calendar as they include a picture of the T-shirt.

The LIO received a letter in October that said SABMiller was to apply for an interdict against the company.

The Cape High Court granted the brewery an interim interdict in November.

The matter is to be heard again next Thursday.

The annual publication is a collection of youth culture reports, stories, poems, graphics and photographs.

LIO owner Justin Nurse could not be reached for comment, but his business partner, Chris Verrijdt, said he would not comment as the matter was “delicate and there had been no developments”.

Adrian Botha, spokesperson for SABMiller London, said his company had sought an interdict to prevent Nurse from publishing material “that infringes the breweries’ trademark Carling Black Label and which would be in contravention of a high court and a Supreme Court of Appeal ruling”.

“Notwithstanding repeated requests, we have not received an acceptable undertaking from Nurse that he will refrain from publishing the infringing material.

“If we do receive an acceptable undertaking from him we will regard the matter as resolved.”

Asked whether SABMiller was not tarnishing its public image by taking the small T-shirt company to court again, Botha said: “The high court and Supreme Court of Appeal have ruled in our favour.

They pointed out that the issue had nothing to do with freedom of expression, which we strongly support.

The courts had found that Nurse’s company had abused its freedom of expression by taking a company’s trademark, distorting it and using it in products sold for its commercial gain – particularly where the effect was “to tarnish a brand without just cause”.

The judge found that, even though no direct evidence was submitted to show that SAB was harmed by the t-shirts that “tarnishment” (i.e. people looking unfavourably on SAB because of the t-shirts) was likely to occur.

“I have come to the conclusion that such use exceeds the limits of freedom of speech and expression…” says Justice Cleaver, because:

1. The Black Labour t-shirt exploits SAB unfairly, and for commercial gain.
2. No-one would buy LiO’s t-shirts if they didn’t use SAB’s trademark.
3. The Black Labour t-shirt is “merely a lampoon of [SAB's] trademarks” and not a broader social commentary. It doesn’t talk about South African society in general, but rather just about South African Breweries.
4. An acceptable parody must be a “harmless, clean pun”. “Its lampooning or parodying of the applicant’s marks is not a “harmless, clean pun which merely parodies or pokes fun” at the respondent’s marks. It goes further than that by introducing the race factor, something which our constitution and our new democracy are at pains to avoid,” writes Justice Cleaver.
5. In fact, the Black Labour t-shirt “can be said to border on hate speech”.

Laugh It Off feels that, without getting into the legal nitty-gritty, the judgement implies that any parody that has any real meaning (as opposed to just being a joke) is illegal. Also, anything which talks about South Africa’s racist past is unacceptable in our new democracy.

We have every intention of appealing against the judgement, which we feel, if allowed to stand, would be a blow to freedom of speech and of artistic expression in South Africa. Laugh It Off will continue to satirise South African culture, and challenge society in general in original, thought-provoking and unconventional ways.

In 1970, The Clash wrote “I fought the law and the law won”. We feel that we’ve fought the law, we’ve lost round one, but whether or not one man’s judgement will be Laugh It Off’s death-knell remains to be seen.

In the mean time we will keep you posted as the events unfold.

Thanks,

Laugh it Off.

Here’s Laugh it Off’s version of what the Black Labour T-shirt was about. It was first published in 2000 just as the three year court battle was kicking off.

The shirt is not statement about SAB and how they might treat their staff. It is a statement about how white South Africans feel guilty about the exploitation of black people in our countries past. Initially our business was not neccesarily one of making statements or being political but just about making people laugh, a shirt that holds up a mirror to the contadictions of every day South African life. Using the Black Label logo was merely a vehicle, no one would have bought or read the shirt if it had merely said “South Africans feel guilty about exploiting black people.”

What has become an issue for us now is how brands feel they are so sacred that they are gaurded by a mile high wall of patent and copyright law. God forbid that their precious brand identity, fabricated from tasteful lies, be challenged by anyone in anyway. Black Label are suing us because we are using their logo illegaly. Fair enough if we were selling beer with an indetical label to Black Labour but we are selling T-Shirts. We are not challenging their share in the beer market. They are suing us because they feel their delicate brand identity is being shaken by our T-shirts.

What’s interesting is that the only people who care if you sell T-shirts using other brands logo’s are those who made them. The public don’t care beacause there is nothing ethically wrong about it. Macdonalds stick their logo everywhere they can, they BRAND, if they could they would brand the whole world, along with this they portray a feel and a lifestyle about their brand through advertising. To the masses = Happy, fun, healthy . If I ran a Billboard simply saying =cheap&evil I would get sued. Why? What do these brands have to hide? Their must be a reason why people want to display hate propaganda about brands and if they were free to do so maybe brands would be forced to be ethical and truthful, they couldn’t hide behind lalws that protect what ever fabrication they wish to portray. Maybe they would spend more energy trying to make the best product they can and building a better world, and those products that aren’t ethical would dissapear?