Settlement of Suit Against Canadian Publisher a Blow to Free Expression ... Could it Happen Here?
I've been following with interest (and not a little amusement) the dispute between Toronto's Rogers Publishing, publisher of Maclean's Magazine, and Quebec's Winter Carnival, the annual event that brings millions of tourists to Quebec City each January. Seemingly all of Quebec was upset by Maclean's use of the carnival's famous smiling snowman mascot, Bonhomme Carnaval, to illustrate an article on corruption in the province. The mascot is seen on the cover of the magazine's Oct. 4 issue carrying a briefcase brimming with cash.
The use of the beloved image set off a political firestorm in famously fractionalized Canada, with some Québécois asking how the English-speaking provinces would feel if a similar image were published featuring Queen Elizabeth II. The Canadian House of Commons eventually passed a unanimous motion condemning the magazine.
If those folks really believe a carnival mascot ought to be invested with the same amount of cultural and historical capital as a monarch, they just might be taking their winter festival a tad too seriously. There is, however, the more serious question of whether a jolly fictional snowman (or at least the event he symbolizes) can be defamed. While initially saying they had the right to use the image, Maclean's eventually succumbed to political and legal pressure, issuing a statement Nov. 5 acknowledging that the snowman is the carnival's intellectual property and that its image might have been sullied by implying a connection with corruption. As part of a legal settlement, the magazine will pay an unspecified amount to the carnival.
Maybe the city where I work, Philadelphia, ought to consider similar measures every time our iconic Liberty Bell is used in a political cartoon to critique or illustrate public corruption. It'd be a great way to close the city's budget gap!
I'm kidding, of course. If I were a publisher in Canada, though, I'd be worried about the precedent set here for future legal action aimed at political satire and parody. Satire is a key form of political expression, and, in the U.S., is traditionally a pretty no-holds-barred business. Because of this, purveyors do sometimes face lawsuits. Does anyone recall the 1980s case of the Rev. Jerry Falwell and an ad appearing in Hustler magazine? I won't recount the details here, but suffice it to say, Falwell lost, partly because the court found "no reasonable person would believe the situation depicted in the ad to be true." A few years later, the right of the rap group 2 Live Crew to sing a parodic version of the song "Pretty Woman" was also upheld by the courts, based on the principle of Fair Use. A magazine found itself on the other end of our liberal Fair Use laws when the courts affirmed the right of Paramount Pictures to mock a Vanity Fair cover in promoting the movie "Naked Gun: The Final Insult."
In the United States, I feel certain Rogers Publishing would have nothing to fear from the courts for publishing a parodic image of a carnival mascot. I have to wonder, though—what if an American magazine chose to depict a jealously protected image—say, Mickey Mouse—in a very negative light? At the very least, deep-pocketed Disney could certainly make things very difficult for all but the largest publishers, and with the industry in a perilous financial state, how many would be willing to take the chance? Maybe, when it comes to this facet of free speech, we're not so different from Canada after all.