Last week saw a giant leap forward for corporate hegemony along with an equally giant leap backwards for freedom of speech.
The tiny one-man enterprise, Laugh it Off Promotions, got legally beaten solidly and repeatedly in the mouth by the international corporation, South African Breweries (SAB), who had chosen the baseball-bat approach of a high court action to redress what, in essence, was a minor dig in its ribs.
The inexcusable sin was that Laugh it Off ‘published” a T-shirt which was a fairly mild parody of a well-known Black Label beer poster: all it actually accused the breweries of having was a guilty conscience: a suspicion SAB’s anxious legal action clearly reinforces.
Only a few hundred of the T-shirts were sold, enough to invite the wrath of the SAB boardroom. Down lurched the corporate lawyer-heavies and the breweries directors must have raised many a glass of their product in celebration. Not only did they win their case, they managed to visit on Laugh it Off some crippling legal costs. When South African Breweries smashes you in the mouth, you stay smashed in the mouth.
Only one factor could have prompted SAB to its ridiculously overstated legal response: the T-shirt made a satirical statement that was all too uncomfortably true. ‘Black Labour, White Guilt” was the parodying line and it neatly crystalised what SAB has been doing for some time: peddling the vast majority of its products to black people.
Not that the gents at SAB would ever admit that they do that sort of thing out of anything but the goodness of their commercial hearts. No more than would those two charmers, the Krok brothers, owners of Twin Pharmaceuticals, like to have anyone parody the fact that they made their pile selling skin-lightening chemicals to black people.
The Kroks bought off the national conscience by erecting an Apartheid Museum to serve as a sort of moral car wash and valet service to repenting honkies — and we all thought Black Label had cornered the market on white guilt. For their reward the Kroks now stalk the halls of current political power. SAB funds cricket tours and then saturates the nation in beer advertising. Supplementary evidence of its altruistic designs?
I cannot comment on the legal finesses of Judge Roger Cleaver’s findings in the breweries’ application against Laugh it Off, but I take strong issue with his introducing as ‘apposite” a definition of acceptable parody as made in a New York civil action: ‘When the association is essentially a harmless clean pun, which merely parodies or pokes fun at a plaintiff’s mark, tarnishment is not likely.”
Such a definition attempts to subdue to cosy legal stipulation a form of literary expression bred in antiquity and carried forward throughout all cultural exchange since. Parody has been a core ideation of critical and satirical discourse, a lively tradition from Aristophanes through Chaucer, Swift, Pope, Joyce and a veritable host of others. Think of the recent brilliant song parody, Bomb Iraq, and the power and popularity of the form becomes obvious.
There’s nothing clean or harmless about Bomb Iraq’s disgust at the hypocrisies of George W Bush. But then, by its very nature satire is a destructive art, its ambitions to deflate pomposity, rupture pretensions, to cry foul at the social injuries inflicted by politicians and big businesses. Satire isn’t something limited to Tannie Evita’s mincing, lipstick and wigs.
The ‘parody” definition cited by Judge Cleaver is the equivalent of
stipulating that all future music should be composed and performed only in C Major with no more than one harmonic exploration from this tonic, written in only one time-signature and marked con sentimento.
Cleaver’s finding that the T-shirt parody borders on so-called ‘hate speech” is also, of course, open to argument. The judge interprets a signal purpose of the South African Constitution as being one of equality for all races, he says the ‘race factor” is something that our democracy ‘is at pains to avoid” and that ‘our legislature places great importance on eliminating racial friction”.
Here Judge Cleaver was either being charitable or needs to watch a lot more television. The current South African legislature is incapable of passing a day without that one of its functionaries noisily wields the ‘race factor”. Bitter complaint about South Africa’s racist past is bread and butter to today’s politicians.
Strangely, they don’t find themselves accused of hate speech. The judge’s finding that parody should exclude reference to any, or particularly, our recent commercial history, goes close to the point of being prescriptive censorship.
The SAB/Laugh it Off judgement sets a troubling precedent, seeming to endorse a line taken over the past 10 or so years by South African high courts, which is both to punish and outlaw critical comment of large and usually wealthy organisations, political parties and the like.
Cleaver’s findings will further provide these with a shield behind which they may hinder and obstruct even nominal criticism of themselves, their products or their prejudices.
Archive: Previous columns by Robert Kirby