Still image from YouTube video by Stephanie Lenz.

With the high-handed arrogance to which copyright holders have become accustomed, Universal Music sent a cease-and-desist letter to a Pennsylvania mother who had uploaded a 29-second video of her toddler dancing to a garbled Prince song playing in the background. In a rare turn of events, the mother, Stephanie Lenz, sued Universal for sending her a meritless “takedown notice.” She said the notice harmed her fair use and free speech rights, and she wants damages in return.

“I was really surprised and angry when I learned my video was removed, Lenz told the Electronic Frontier Foundation, which helped her bring her lawsuit. “Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.” EFF staff attorney Corynne McSherry said that “Universal’s takedown notice doesn’t even pass the laugh test. Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video.”

Universal ultimately declined to argue that the video wasn’t fair use. But the company did argue that its mere assertion of a copyright violation should be sufficient justification for sending a takedown notice. Universal did not want to have to make a “fact-intensive inquiry” before sending out a notice, presumably because that would be too costly and time-consuming. And besides, Universal implied, it knows what is a copyright infringement. (Or in this case, Prince himself, who by one news report was directly involved in instigating the takedown notice in the first place.)

In other words, Universal Music wants to place the burden on individuals to vindicate their fair use rights when confronted with large corporations with armies of lawyers making unilateral assertions. Talk about ‘let’s go crazy’!

Federal judge Jeremy Fogel implicitly rejected this scenario and insisted that companies are perfectly capable of making fair-use determinations before they send out takedown notices. The judge’s ruling is a cold slap in the face for corporate copyright holders, who routinely threaten individuals with groundless cease-and-desist letters and act as if fair use is a legal triviality. By refusing to dismiss the case – and by squarely affirming the importance of citizens’ fair use rights – Judge Fogel delivers a welcome message that copyrights are not sweeping and absolute. The public’s fair use rights matter. Further evidence that fair use may be getting its groove back.

But in a surprising instance of man-bites-dog, the people of Montana have fought the privatization of the phrase “the last best place” – and won. With help from Montana Governor Brian Schweitzer and Senator Max Baucus, the U.S. Senate is expected to pass legislation this year that would prohibit the Commerce Department from granting a trademark for that particular phrase. This means that the people of Montana, the State of Montana and small businesses throughout the state will be able to refer to their state as “the last best place.”

Photo by Stuck in Customs, via Flickr, licensed under a Creative Commons BY-NC-SA license.

The controversy had its beginnings in 1988 when a professor of writing at the University of Montana, William Kittridge, and Annick Smith, published an anthology of Montana writers called “The Last Best Place.” The phrase had such an immediate resonance with people in the state that everyone from real estate brokers to motels to the state tourist office began using the phrase to describe Montana. It became a way of expressing one’s identification with and affection for this vast state of enormous natural beauty and its one million inhabitants.

Enter Las Vegas businessman David E. Lipson. One of his businesses, according to one reporter, tried to obtain a trademark on the phrase. He wanted to use it to market a variety of his businesses, including The Last Best Beef. The trademark application was so broad, says a Washington trademark lawyer cited by the New York Times (August 17, 2008) that it would have given Lipson a “de facto monopoly” on use of the term. In 2004, Montana Senator Conrad Burns tried to slip an amendment into a budget bill to prevent the registration of the phrase as a trademark. But Lipson challenged the bill in court. He won at the district court level and then lost on appeal.

Now, to put the matter to rest and prevent any future challenges, Senator Baucus has introduced a stronger, more ironclad version of the legislation that has now passed in the relevant Senate and House Committees, and is expected to become law.

Perhaps there is a lesson in all this. Why shouldn’t other popular expressions be granted some sort of immunity from corporate privatization? Why should Nike, McDonald’s, Coca-Cola or Kodak be able to march in and legally “steal” for itself a phrase or image that morally belongs to the people, or some distinct collective, who gave it social currency (and thus cash value) in the first place?

Among the world’s burning issues, the deficiencies of trademark law in protecting socially created value may not be at the top of the list. On the other hand, protecting the symbols of identity and community pride is no small matter, either. Just as the citizens of Montana.

The film, from Pixar/Disney (!), is the story of a sad, cute robot/trash compactor, the only apparent creature left on an abandoned Earth. WALL-E has been programmed by his creator, the Buy n Large Corporation, to clean up the monumental, crumbling mess of consumer crap strewn about by the human race. A century earlier, in the 21st Century, as Earth became uninhabitable, humanity decamped to a vast space colony that now aimlessly roams a distant galaxy. In the apocalyptic gloom that is now Earth, Wall-E dutifully stacks neat cubes of compacted trash into towering skyscrapers. (WALL-E stands for “Waste Allocation Load Lifter—Earth Class.)

Earthlings live in a manmade space environment that resembles a mall, tropical resort and freeway rolled into one. People spend their lives reclining in hovering Barcaloungers looking at translucent TV/computer screens propped up in front of them. They constantly sip Big Gulp sodas, gossip about celebrities, buy things and behave like sheep whenever the hear the voices of disembodied computers (think “HAL” in 2001) and the CEO of Buy n Large, the mega-corporation that used to govern Earth and now runs the floating space colony. (The CEO – the only live-action character in the film – is played to perfection by Fred Willard, who once specialized as the sleazy talk-show sidekick on “Fernwood 2Nite.”) Everyone is an obese, inert blob who can barely move.

I cannot recall a movie that so deftly lampoons and laments in one seamless narrative the sad, corrupt state of modern market culture. To be sure, the film’s message is delivered in the guise of a humorous cartoon – the preferred vehicle for messages that are otherwise too hot to handle. No film with WALL-E’s devastating themes could ever have gotten past the Hollywood gatekeepers unless it were disguised as some sort of kiddie fare – “good fun.” A frankly adult version of the film’s themes would be seen as far too depressing, political and controversial. And indeed, conservatives have predictably criticized the film.

What gives WALL-E its poignant charm – despite its heartbreakingly bleak premises – is the earnest resourcefulness and integrity of WALL-E and his almost-pathetic infatuation with Eve, a sleek, zippy, aerodynamic cylinder-robot also owned by the Buy n Large Corporation.

One day Eve arrives on Earth to investigate whether it has any viable lifeforms and therefore whether the “ghost ship” of humanity can return to Earth. It turns out that Wall-E had recently discovered a small green sprout of a plant, which Eve seizes. When Eve suddenly zooms off with the plant to notify the Buy n Large Corporation that Earth can now be re-colonized, WALL-E desperately tries to follow. (Eve stands for “Extraterrestrial Vegetation Evaluator.)

WALL-E is in love. She is the first “living” creature that he has seen in decades. The rest of the film revolves around WALL-E’s chase and courtship of Eve, and their adventures as “rogue robots” trying to save humanity from its narcoleptic existence.

The two robots are barely human, but, in this sci-fi universe, they are the most caring and humane creatures around. People have become slug-like blobs with no independent will, zest or love. By contrast, WALL-E takes immense childlike pleasure in the castoff emphemera of consumer culture that he finds while cleaning up the planet. He carefully stores and cherishes battered Rubrik’s cubes, elf dolls and cigarette lighters before trash-compacting everything else. He repeatedly watches a 1940s Hollywood musical film on an ancient videotape, which instills in him a longing to fall in love. WALL-E acts as a brave, sad counterpoint to the utter devastation of the Earth and the affectless humans who have become consumer-zombies.

This film doesn’t preach to make any points. It doesn’t need to. Kids immediately understand what’s going on, and adults do not feel as if it’s “just a kid’s movie.” It is a tribute to both the artistry of the film and its critique of consumer/corporate culture that WALL-E has grossed $267 million in the two months since its release. (There’s big money to be made in depicting alienation with modern consumerism!) My only complaint is that the film should probably have a PG, not a G, rating; I found it plenty disturbing.

The one thing the film does not tackle is how exactly humanity re-colonizes and revives the Earth. That’s when the film ends. Clearly that is a tale for another day. But one thing is clear: it will require another order of imagination entirely, something that goes beyond anything the Buy-N-Large Corporation has to offer, to save humans from their nightmarish exile in a Total Market Existence. They will need to find new ways to cooperate to save the small, green plant that WALL-E has improbably salvaged, and which is the uncredited centerpiece of the film: life.