by Shontavia Johnson
Black. Lives. Matter. In the past three years, these three simple words have formed the foundation for one of the most prominent social movements of the twenty-first century. Its members have met with President Obama and spoken at the United Nations General Assembly. The three founders of Black Lives Matter – Alicia Garza, Patrisse Cullors, and Opal Tometi – have been on Fortune’s list of the World’s Greatest Leaders. The corresponding hashtag, #BlackLivesMatter, is the third-most popular social-issue hashtag in Twitter’s history. Black Lives Matter was even Number 4 on TIME’s 2015 Person of the Year list.
In response to anti-black racism, Black Lives Matter has, with lightning speed, disrupted the entire universe of social movements by following none of the traditional rules. There is no national spokesperson, president, CEO, or corporate structure.
In shunning the traditional corporate system, Black Lives Matter has created a host of questions about leadership in, and ownership of, social movements. How is Black Lives Matter defined? Who encompasses the official Black Lives Matter organization to the extent that there even is an official organization? What is the Black Lives Matter brand or trademark, and what is it tied to?
These questions are inextricably linked to a tug of war between, on one side, grass roots efforts generally opposed to corporatization of the social movement, and on the other side, capitalism, intellectual property, and top-down leadership models more palatable to the media and large donors.
Definition (not) required
The phrase Black Lives Matter has always been amorphous. In the words of blacklivesmatter.com, the website of the “official #BlackLivesMatter Organization founded by” Garza, Cullors, and Tometi, Black Lives Matter is a “chapter-based national organization working for the validity of Black life.” It has also been broadly characterized as an umbrella term encompassing “a Twitter hashtag, a slogan, a social movement, or a loose confederation of groups advocating for racial justice.” If these two explanations form the endpoints of the spectrum, there is a lot of gray area in between.
At least one Black Lives Matter co-founder has publicly suggested that, while there is an organization with a platform, vision, and guidelines, there is no plan for official business incorporation, brand ownership, or mandating a singular approach for making black lives matter. The organization does not, at this point, police who uses the phrase or provide national directives to local activists.
From this perspective, a decentralized approach allows for a nimbleness in dealing with local concerns that large, unwieldy corporations don’t typically have. Local Black Lives Matter affiliates are more qualified to deal with city-specific issues and concerns than a broader, national group that is far removed from the day-to-day lives of people in any given location.
It is also easier to coordinate swift responses to local social justice issues taking place. In July 2016, after Philando Castile was killed by St. Paul police, Black Lives Matter affiliates organized and shut down a major interstate in a matter of days. When Keith Lamont Scott was killed in Charlotte, North Carolina on September 20, 2016, Black Lives Matter protesters gathered within hours. The thousands of Black Lives Matter events taking place around the world do not need to wait for a national decree or seek approval from a large, bureaucratic chain of command. In this sense, individuals and affiliate groups are empowered to effectuate social change in whatever way they see appropriate.
On the other hand, there have been conflicts regarding who speaks for Black Lives Matter. One such instance played out publicly in August of 2015, when Marissa Johnson and Mara Willaford, who identified themselves as Black Lives Matter activists, rushed and took over the stage while Bernie Sanders was speaking at a campaign event in Seattle. The event made national and international news. Almost immediately, Nikki Stephens, at 16 year old high school student who had previously created and managed the “Black Lives Matter: Seattle” Facebook page, received a steady stream of texts and social media messages. Stephens, however, did not know anything about the event and did not even know Johnson or Willaford.
As a Bernie Sanders supporter, and in response to growing demands from other, angry Sanders supporters, Stephens issued an apology via the Black Lives Matter: Seattle Facebook page, which national media sources ran as a “Black Lives Matter apology”:
“To the people of Seattle and #BernieSanders I am so sorry for what happened today in Seattle. ….That is not what Black Lives Matter stands for and that is not what we’re about. Do not let your faith in the movement be shaken by voices of two people. Please do not question our legitimacy as a movement. …”
This set off some amount of internal discord, which led to demands for Stephens to relinquish the Facebook account to Johnson and Willaford, the creation of a conflicting Black Lives Matter Seattle Facebook page, and a host of inconsistent public statements from both groups and the national Black Lives Matter Facebook account.
This perceived lack of direction has been roundly criticized by those who favor centralized leadership and corporate models, particularly when it comes to money. Some tactics, like those of Johnson and Willaford in Seattle, can isolate those with the deepest pockets. But this model hasn’t deterred all donors. By some reports, groups like Black Lives Matter may soon be the recipients of nearly $100 million dollars from private donors.
Movements need money, and large donors can be skeptical when it comes to contributing to grassroots groups without traditional infrastructures.
By comparison, other groups who have formed traditional non-profit organizations have been able to harness the power of the social media hashtag to raise millions of dollars. The #IceBucketChallenge hashtag, for example, was used to raise more than $115 million dollars. Money raised during that challenge was funneled into the ALS Association’s nonprofit corporation, which is a self-described grass-roots organization with chapters around the United States.
The founders of Black Lives Matter recognize the inherent paradox of the word “organization,” which could mean anything from organizational corporate structure, with CEOs, tax ID numbers, and the boards, (which many people distrust and which many activists shun) and organization of effort (which they recognize is required for the movement to succeed). They have publicly stated that while Black Lives Matter should be unified by a desire to affirm the validity of black lives, they do not control or own the movement. As such, the phrase Black Lives Matter will likely continue to remain amorphous, even with the growing pains it faces and will continue to face.
Black Lives Matter activists have not only renounced business incorporation, but also intellectual property protection, including trademark protection for the phrase. To date, they have not attempted to privatize the phrase Black Lives Matter, other than acquiring the domain name and using corresponding social media accounts. This approach could, however, have unintended consequences.
Trademark law allows an organization to own a phrase that is being used to identify that organization and distinguish it from others offering the same or similar services. Under such a model, an organization can have thousands of locations under one trademark’s umbrella (think, for example, of the United Way, the largest charity in the United States – it has 1800 local affiliates using the same name and branding around the world).
Determining whether an organization can own a phrase depends on how that phrase would be perceived by the relevant public. In the case of Black Lives Matter, it could have perhaps been protected and registered a trademark in 2013 upon its initial creation, because no one associated it with a social justice movement at that time.
Today, however, the term “Black Lives Matter” has become so diffuse and unmonitored that it cannot refer to only one organization and distinguish that organization from countless others pursuing similar efforts.
This hasn’t stopped some people from trying to trademark Black Lives Matter, including both white people and others unconnected to the organization. There have been eleven applications filed in the United States Patent and Trademark Office for trademarks incorporating the words Black Lives Matter. As of November 2016, eight of those applications are still pending. The remaining three have been refused by the trademark office, in part because “consumers are accustomed to seeing this term commonly used by various people and organization[s] to impart information to consumers.”
But there have been instances where Black Lives Matter activists who disapprove of other Black Lives Matter activists publicly denounce activities as not “official” or demand the surrender of social media accounts using the phrase. However, because there were no initial steps taken to trademark the phrase, this essentially means anyone can use it. Such denouncements and demands, while perhaps understandable, do not have any legal force.
The established strategy of allowing anyone to use the phrase Black Lives Matter has created a fascinating dichotomy where no one, not even the creator of the phrase or the official organization, can own or trademark the phrase Black Lives Matter.
While this has, on the one hand, removed anyone’s ability to police use of the phrase, this is far outweighed by the benefits, which include the ability to create rapidly responsive affiliates, participatory democracies, and group-centered leadership.
By remaining staunchly in favor to diffuse efforts, networks, and leadership, the Black Lives Matter movement forces a shift in the social movement narrative, particularly around questions of ownership. Despite some criticism, the brilliance of the Lives Matter model may give it a longevity uncommon in such movements. With numerous initiatives, key people, and presences around the United States (and the globe), no one person or organization can own Black Lives Matter. And that matters.
Shontavia Johnson (@) is the Kern Family Chair in Intellectual Property Law, Director of the Intellectual Property Law Center, and Professor of Law at Drake Law School. She has previously written about the interaction of online culture and trademarks in Trademark Territoriality in Cyberspace: An Internet Framework for Common Law Trademarks, 29 Berkeley Technology Law Review 1253 (2015) and Memetic Theory, Trademarks & The Viral Meme Mark, 13 John Marshall Review of Intellectual Property Law 96 (2013).
Photo: By The All-Nite Images [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons