After a modified, anti-fracking Smokey
the Bear went viral, the U.S.
Forest Service threatened legal action against
the activist who created it. The case now revolves around fair use, culture
jamming, and just whose side the Forest
Service is really on.
This article originally appeared at Waging Nonviolence.
Smokey the Bear thought he smelled a fire in the woods. But as he approached
the clearing and saw a giant derrick jutting out into the sky, he realized that
what his nose had picked up was the scent of hydrocarbons. It was another piece
of evidence that the increasingly widespread method of oil and gas extraction
known as fracking was poisoning the environment that he and his human friends
depend on. He decided something must be done.
At least that’s the way that artist, Occupy Wall Street veteran and
environmental activist Lopi LaRoe
sees it. But last week she received a letter threatening her with jail time and
thousands of dollars in fines for enlisting Smokey to the anti-fracking cause.
In the fall, LaRoe created an image of Smokey that altered his famous
invective “Only you can prevent forest fires” to “Only you can prevent faucet
fires” — a reference to the phenomenon of flaming taps
that occasionally occur near where fracking takes place. The adjustment seemed
to her in line with the message of conservation Smokey has come to embody.
“This is the radicalization of Smokey the Bear,” said LaRoe. “This is Smokey
waking up and saying, ‘Oh you didn’t do that to my environment.’ Smokey wants
to fight the corporations and protect the air and the water and the plants and
the animals and the people.”
Her parody went viral. She began printing T-shirts at the insistence of
friends on Facebook, but demand quickly surpassed those in her immediate circle
of contacts. Soon she was packing Smokey in FedEx envelopes and sending him off
to Australia
and other far-flung terrains. There are also tote bags and patches with the
Smokey meme available at LaRoe’s website.
(The tote bags, she advertises, are “great for dumpster diving.”) LaRoe says
she’s not out to become rich and the money she charges customers goes toward
covering her costs so that she can keep spreading the message of faucet-fire
prevention far and wide.
“It spread like wildfire,” she said, grinning ear to ear.
Not everyone is amused. LaRoe received a cease-and-desist letter from the
Metis Group, which serves as legal counsel for the U.S. Department of
Agriculture’s Forest Service division. The letter informs LaRoe that Smokey,
his character and his slogan are property of the U.S. government and warns that she
has until May 2 to halt the use of Smokey on her “products” and to stop
distributing electronic copies of the meme. Otherwise, she faces up to six
months in prison and a penalty as high as $150,000.
“Any time anybody uses Smokey’s image for anything other than wildfire
prevention,” said Helene Cleveland, fire prevention program manager for the
Forest Service, “it confuses the public. What we’re trying to do is keep Smokey
on message.” Cleveland
added that the 1952 Smokey
the Bear Act takes the character out of the public domain and “any change
in that would have to go through Congress.”
Two other entities besides the Forest Service claim joint rights to Smokey.
The National Association of State Foresters — a non-profit organization
consisting of directors of U.S.
forestry agencies — and the Ad Council.
Remember “This is your brain on drugs“? Or the Indian
weeping over pollution? They were the Ad Council’s handiwork. A non-profit,
it describes itself as a promoter of “public service campaigns on behalf of
non-profit organizations and government agencies” with a focus on “improving
the quality of life for children, preventive health, education, community well
being and strengthening families.” Smokey the Bear was born at the Ad Council,
on the desk of abstract
expressionist and Marx-influenced art critic Harold Rosenberg, who had a
part time job there in the mid-1940s.
The Ad
Council’s board of directors is a conflagration of representatives of the
world’s wealthiest corporations, including representatives of such companies as
General Electric, which announced
plans last month to spend $110 million on a research lab devoted to the
study of fracking, and finance giants such as Citigroup and JPMorgan Chase. On
its website,
Citibank advertises an “extensive array of deposit, cash management and credit
products” for oil and gas drillers, while
a JPMorgan Chase subsidiary boasts its “Oil & Gas Investment Banking
group covers the complete oil and gas value chain, which includes exploration
and production, natural gas processing and transmission, refining and
marketing, and oilfield services.”
LaRoe believes that those who claim to own Smokey “don’t care that I’m
selling a few T-shirts. They’re out to crush the meme.”
Both the Ad Council and the Metis Group declined to comment for this story.
Despite the warnings in the cease-and-desist letter she received, the May 2
deadline to shut down her site and retire her anti-fracking Smokey came and
went; LaRoe has not ceased or desisted. Instead, she enlisted the help of her
own legal counsel, who fired back with a letter to the Metis Group on Friday.
In it, attorney Evan Sarzin argues that LaRoe ‘s culture-jam
appropriation of Smokey is permissible under the fair-use exemption to
exclusive copyright ownership and chides the the Forest Service for attempting
to infringe on LaRoe’s First Amendment rights.
Sarzin also points out that this is not the first time the Forest Service
has sought to silence environmentalists for appropriating Smokey’s image. In
the early 1990s, the Forest Service demanded reparations from the Sante
Fe-based conservation group LightHawk after it used Smokey’s likeness in ads
critical of the agency’s practice of auctioning off land to timber companies.
(The Forest Service, as part of the Department of Agriculture, makes its land
available for commercial use.) Unlike LaRoe’s Smokey, LightHawk’s black bear
appeared angry and wielded a chainsaw. “Say it ain’t so, Smokey,” read the ads.
With legal funds provided by the Sierra Club, LightHawk sued
the Forest Service in 1992 for infringing on its freedom of speech. The court
eventually sided with the plaintiffs, noting that “the satirical use of Smokey
the Bear to criticize Forest Service management techniques is unlikely to cause
confusion or to dilute the value of Smokey the Bear to help prevent forest
fires. Thus the Forest Service cannot have a compelling interest in prohibiting
such use.”
Sarzin also calls attention to the fact the Forest Service’s own research
points to environmental degradation caused by fracking. A 2011 study
published in the Journal of Environmental Quality by Forest Service
researchers linked
frack fluid to the death of 150 trees in West Virginia’s
Monongahela National Forest. Despite their findings,
the Forest Service is considering approving fracking leases in the nearby George Washington
National Forest. The
Southern Environmental Law Center, which opposes the plan, says
it represents a threat to local wildlife — including the black bear.
A report
released last month by the the National Parks Conservation Association warns
that fracking for oil is decimating the ecosystem surrounding Theodore
Roosevelt National Park, named after the Republican president who founded the
Forest Service. “Unless we take quick action,” the report warns “air, water and
wildlife will experience permanent harm in other national parks as well.” Thus,
Sarzin writes, LaRoe’s Smokey meme “is a message that the Forest Service should
endorse.”
LaRoe hopes that by gaining publicity she can force the Forest Service to
take a stand against fracking. In order to continue the fight, however, she
says she needs the support of groups whose mission it is to defend civil
liberties or protect the environment to provide legal defense funds — just as
the Sierra Club did for LightHawk.
“This about more than me as an artist,” LaRoe said. “This is about
everybody’s right to freedom of speech and a healthy environment.”
Her childhood memories of Smokey, she explains, are compelling her to keep
raising faucet-fire prevention awareness despite the threat of jail time. “When
we were little kids we were taught that there is this bear out there that wants
to protect our forests. Smokey is our bear. He belongs to the people.”
Images of Smokey the Bear meme and
T-shirt by Lopi LaRoe/WePay.
