Wednesday, 7 January 2004
Topic: The Law
Intellectual Property Rights:
"Malted Barbie" featured a nude Barbie in a blender.
"Fondue a la Barbie" depicted Barbie heads in a fondue pot.
"Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven.
This item has been in the press for a number of days and the best summary I've found was in my local paper.
See 'Lawsuit Barbie' Fails for Mattel
Court upholds an artist's use of the doll in his series of photographs.
By Christine Steiner, The Los Angeles Times, Wednesday, January 07, 2004
Christine Steiner practices and teaches visual arts law out here in Los Angeles. She's a former counsel to the J. Paul Getty Trust and the Smithsonian Institution - and a partner in the law firm, Steiner Feig & Conley, LLP, a law practice that emphasizes business, art law and intellectual property. She represents museums, cultural organizations, foundations, universities, writers, publishers, living artists, artists' estates, and other arts-related clients. She is an adjunct professor of law at Loyola Law School, where she teaches visual arts law, and has served as a visiting professor of international art law in law school programs in Florence, Italy, and Cambridge, England. She was a member of the U.S. Conference on Fair Use (CONFU) and is General Editor of the co-authored work, A Museum Guide to Copyright and Trademark, published in 2000 by American Association of Museums. She chairs the Art Law Section of the American Bar Association's Forum on Entertainment and Sports Industries.
In short? You don't mess with her.
Here's the situation:Although it was titled "Food Chain Barbie," the photographic series by Utah artist Tom Forsythe was not exactly appetizing: "Malted Barbie" featured a nude Barbie in a blender. "Fondue a la Barbie" depicted Barbie heads in a fondue pot. "Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven.
Mattel, the company that has been making Barbie for 45 years, was, not surprisingly, displeased by these images and promptly sued, arguing that the public would mistake these exaggerated and suggestive images for authentic Mattel products, thus diluting or diminishing the commercial value of their property.
But last week, artists everywhere had reason to celebrate when the U.S. 9th Circuit Court of Appeals ruled against Mattel, saying that Forsythe's photographs were parodies of the iconic plastic doll and contained messages about gender roles and consumerism. As such, the photographs were legitimate free speech and did not infringe on Mattel's copyright or trademark rights.
The decision is important because overaggressive enforcement of intellectual property rights is destructive to the free exchange of ideas in a democracy.
Now this is a sensitive issue out here. Mattel in headquartered a few blocks south of LAX and is a source of many jobs and much pride in Los Angeles.
And I do have a friend who, I assume, sides with Mattel here, as she used to be an executive handling licensing for Mattel - both the Barbie line and "Hot Wheels" products. She has long argued with me that anyone who even mentions a licensed, copyrighted or trademarked item should only do so with full permission of the creator of the item, and with full payment to the creator for any use. She argued with me a year or two ago that the Margaret Mitchell estate had every right to block publication of the book The Sun Done Gone - that novel that "reconceptualized" Gone With the Wind. Her husband further argued that any classical composer who wrote any sort of "Variations on a theme by..." was lazy and uncreative, and a thief. That is, Brahms was no more than a thief, as was Beethoven and Mozart and any others when they wrote variations on someone else's theme. (See I'm Just Wild About Harry in Just above Sunset Magazine, Volume 1, Number 5 June 29, 2003)
I don't agree. And Steiner doesn't agreeThe rights of toymakers and others to profit from their original work must of course be protected. But at the same time, courts must, as the 9th Circuit did here, balance legitimate property rights against constitutional rights of free expression.
The tension between these rights is not new. Historically, the 1st Amendment has been used to ensure that particular venues remain open to free expression - venues such as public squares, broadcast channels, books, newspapers and, most recently, cyberspace. Intellectual property law, by contrast, is concerned with safeguarding an owner's property rights and with limiting the unregulated taking of copyrighted and trademarked properties.
There's a reason in the left panel you'll find 4.) Legal Notice, as here I must be careful.
The issue is "fair use" of course.
Steiner explains it this way.Copyright infringement occurs when a creative work is copied or used without permission. Trademarks protect commercial products or services, and infringement occurs when a trademark is used without permission and causes a likelihood of confusion between the trademarked product and the unauthorized one.
But there is such a thing as "fair use," which permits a user to take copyrighted or trademarked materials where the use is in the public interest.
The fair-use doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, the arts and literature.
The Copyright Act identifies these uses as criticism, comment, news reporting, teaching, scholarship and research. Courts have recognized other uses, such as parody, free speech, free expression and the public good. For example, quoting portions of books or letters, copying images for study purposes or running copyrighted footage on the evening news would all be considered fair.
And the factors are clear:The law identifies a four-factor analysis to aid in determining what constitutes fair use: the purpose and character of the use; the nature of the underlying work; the amount taken; and the potential market effect. Thus, the U.S. Supreme Court upheld the rap group 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" because the audience was different, the new song transformed the old with new meaning, and the market effect was determined to be nil.
Yes, I quote a lot here on this blog, and provide links to other items. I don't think I'm in trouble.
Ah yes, but what about the Barbie Dolls?By applying these factors, the 9th Circuit determined that the "Food Chain Barbie" series was a legitimate parody. Forsythe transformed the meaning and intent of the Barbie doll into new and different work, and consumers were not likely to confuse a naked Barbie in a blender with an authorized Mattel product.
The 9th Circuit decision is one in a string of cases that have been decided against the toymaker. For example, last January, the U.S. Supreme Court upheld the right of the Danish band Aqua to distribute its 1997 song "Barbie Girl," whose lyrics refer to a "blond, bimbo girl."
Of course, I'm screwed if I'm sued. My legal costs would bankrupt me.
Mattel knows this. In this case -But the company persisted in using the law to intimidate artists. Forsythe's legal fees (which may now be reimbursed) were in the millions of dollars. The chilling effect of monetary considerations cannot be underestimated.
The court also chastised Mattel for filing abusive discovery demands against two museums whose curators dared to testify on behalf of the artist.
I'm not sure that makes me feel any better.
As Steiner points out, possibly Mattel is so aggressive in marking its territory because it believes that the product must be saved from all unauthorized activity that might dilute its uniqueness. Yet it is common sense that a corporate citizen needs not cudgel every trespasser to avoid risking loss of intellectual property rights.
Maybe so. But anyone writing about what people are saying has this sword hanging over them. Franken may have won his suit when Fox News sued him. But he was sued.
Ah, if I had more readers I'd worry.
Tuesday, 6 January 2004
Topic: The Culture
Automotive Psychology: If someone's going to die, let it be someone else.
Is it possible to limit the damage an obsession does to others?
In this week's New Yorker Malcolm Gladwell has a long piece on those SUV things - those luxury, top-heavy, truck-based transport vehicles just about everyone drives. Heck, my nephew's wife out in Barstow is urging her husband to trade their nearly new Ford Excursion - the largest and heaviest passenger vehicle manufactured in American - for a Hummer. The Hummer is a bit more brutal and looks bigger and safer, or maybe more "invincible and impenetrable." This couple does have two children, five and seven. And the world is a mean place. I don't want to tell her the family's current Ford has more total mass and larger dimensions than even the largest Hummer. She had her dream. The unassailable family car. No one will ever hurt her or her kids.
The Gladwell New Yorker article is called "Big and Bad." It's not available online, but an interview with the author is.
See Road Killers
The New Yorker, Posted 2004-01-05
Here Gladwell on why my nephew's wife is so obsessed with the ultimate SUV: One school of thought says that SUV buyers harbor a kind of outdoorsy fantasy. But I suspect that it's more basic than that: this is a vehicle that can flourish in the most extreme environment imaginable. If it can ford streams and climb over boulders, just think how safe and protected you'll be on the trip to Wal-Mart! Of course, the logic behind that argument is backward: the trip to Wal-Mart is a good deal more hazardous than fording a stream in the wilderness, and we ought to be buying cars optimized for the conditions we actually drive in.
Well, yes. But one should tell people what they "ought" to buy. That just makes them angry.
Gladwell comments on how market research does show that SUV's tend to be bought by people who are "insecure, vain, self-centered, and self-absorbed, who are frequently nervous about their marriages, and who lack confidence in their driving skills." This is what people said about sports cars for many years, of course.
Galdwell's response:Well, it's not quite what people said about sports cars: for example, I think the people who buy sports cars have excessive confidence in their driving skills. But, in general, the more expensive an item becomes, the more psychological factors play into the purchase decision.
Well, I'll have to think about that. I see what he means, the more expensive something is the harder one must work to explain to oneself why the hell one is spending the money. Got it.
Then how are these things marketed? How does one convince a not-very-wealthy young family to assume a seventy-five thousand dollar debt for one of these?
Here's how:There's a television commercial for an SUV in which a woman is driving the SUV and a rock rolls onto the road in front of her, and she swerves around it at the last minute. That ad claims that SUVs are nimble, and suggests that the key variable in avoiding the rock was the vehicle. That is an attempt, it seems to me, to play to the driver who lacks confidence in his or her skills. The most dominant image in SUV commercials and ads is still the SUV mastering some off-road obstacle: fording streams, cutting through snowbanks, racing across virgin wilderness. Obviously, almost no SUV driver is ever going to use his or her car in those environments (in large part, of course, because racing across virgin wilderness in an SUV is, for the most part, illegal). Another interesting thing about SUV advertisements, along these lines, is how rarely children appear in them. Keith Bradsher makes this point in his book, High and Mighty. Minivans are advertised in family-centric ways. The SUV, on the other hand, is supposed to allow the buyer to pretend that he or she doesn't have a family, that he or she is still a kind of rugged loner without suburban entrapments.
Well, let me see... if Keith Bradsher is correct my nephew's wife doesn't really like her kids and wants to pretend she's a rugged loner. That she wants a new Hummer means the marriage is in trouble. I don't think so.
Gladwell adds that the most important other issue right now is the question of fashion: that, at the moment, certain kinds of SUVs (like the Cadillac Escalade) are simply considered cool, in the way that Corvettes were cool twenty-five years ago. Maybe that's it.
And then there is the safety thing. These things are simply bigger than anything else on the road. If someone is going to die in a traffic accident, it won't be you. Let someone else drive their little Mini or SLK. You'll survive and win - even financially:If every car on the road was a Mini, then the cost of an accident would be quite small: if you are in a Mini and you hit a Mini, you aren't going to be that bad off. So, in the old days, the premium on active safety wasn't so large. On the other hand, if every car on the road is an SUV, the cost of an accident grows substantially. When a Ford Explorer hits a Chevy TrailBlazer, both parties suffer enormously. And, if a Ford Explorer hits a Mini, the Mini driver is a dead man. ... As a non-SUV owner, I simply cannot afford to get into any accident at all these days.
Interesting. Last month my little SLK was clobbered by a fifteen-year-old Toyota sedan. The total cost of repairs was almost four grand. The insurance company was not happy at all. Had I been clobbered by a Hummer? Well, not much would be left. And I probably wouldn't be here.
My nephew's wife may have a point. If someone's going to die, let it be someone else. Gladwell understands:I don't think we can easily cure people of their desire to feel safe - even if that desire does not correlate with actual safety. But what we can do - and ought to do - is limit the damage that that obsession does to others. The important thing to remember is that the harm that SUVs do to other vehicles is not a simple function of their excessive weight. In other words, if a five-thousand-pound SUV hits you, you aren't automatically dead. Cars are so beautifully designed these days that they can safely absorb tremendous forces in an accident. (I always think of the fact that the bodyguard in the front seat of Princess Diana's Mercedes survived that crash, which was into a concrete pillar reportedly at a speed in excess of ninety miles per hour. That's how good car safety has become.) But all those safety mechanisms usually work if the car is hit squarely (or, at least, on the same plane) by the opposing vehicle. That's what is not happening now. SUVs are so tall that cars simply submarine them. The kind of redesign that the automakers are talking about - making SUVs less "aggressive" in their accident posture and reducing the risks of that kind of submarining - is critically important. Of course, it would be better if every car on the road was the same weight. But that's not going to happen.
I guess I'm in trouble. When I win the lottery I'll buy each of us our very own Hummer H1 - and we'll all be fine.
Topic: Election Notes
Truth in Advertising: Do NOT Drive a Volvo!
Much has been said in the last day or two about the MoveOn.org anti-Bush advertisements that have Bush morphing into Hitler and all that. But that was two of thirty "draft" advertisements, none broadcast, and those two were withdrawn with an apology for their "poor taste."
What about actual advertisements that got on air?
See Conservatives launch TV attack ad on Dean
Ralph Z. Hallow, The Washington Times, Tuesday, January 06, 2004
Here's the skinny:A conservative advocacy group will begin running a TV ad in Iowa against Democratic presidential candidate Howard Dean, in a move questioned by some of President Bush's supporters.
The Club for Growth Political Action Committee said the 30-second spot against the former Vermont governor will begin running in Des Moines today -- two weeks before the Iowa Democratic caucuses.
In the ad, a farmer says he thinks that "Howard Dean should take his tax-hiking, government-expanding, latte-drinking, sushi-eating, Volvo-driving, New York Times-reading ..." before the farmer's wife then finishes the sentence: "... Hollywood-loving, left-wing freak show back to Vermont, where it belongs."
...The Club for Growth was founded in 1999 to elect what it calls "pro-economic growth fiscal conservatives." Mr. Moore said the club and its members raised or donated more than $10 million to help elect 17 new members to Congress in the 2002 election cycle.
Mr. Moore said his PAC will announce next week a $4 million campaign to counter the expected, massive ad campaign by what he calls "left-wing groups" largely funded by liberal activists and businessmen such as George Soros and Peter Lewis.
Well, not one latte for me now. Never liked latte that much, anyway.
And even the Republicans think this advertisement is not exactly useful.
Over at the Atrios-Eschaton blog one finds this:Imagine if I ran an ad which went something like "George Bush should take his negro-lynching, anti-intellectual, pig- feet eating, sister-screwing, wife-beating..." before the farmer's wife then finishes the sentence: "... KKK-loving, right-wing freak show back to Texas where it belongs."
Mine's slightly more over the top than the actual Club for Growth ad, but it's no more incorrect. For some reason it's perfectly valid to make just about any regional stereotype about the Hollywood and Northeastern "elite," (which, we should remember, was just code for "JOOs and Negro-lovers"), but people get all sensitive when one stereotypes the South and Texas. I don't think such regional stereotypes are particularly enlightening or useful, but nor do I think their invocation should provoke the kind of outrage that genuine racism should. But why the double standard?
Of course, the amusing thing about the Club for Growth ad is how wrong it is - Vermont is not part of the "elite Northeast" to the extent that it exists, it's a small rural farm state. And for the record, Vermont has precisely two Starbucks for all those latte drinkers to go to.
Just for the record, David Frum, Bush's former speechwriter and the man who gave us the "axis of evil" concept, has a minor criminal record - he did beat up his wife a few times. The rest about lynchings, pig-feet, and anti-intellectual tendencies you can work out on your own.
Oh well.
Say, are there really regional stereotypes about the Hollywood?
Of course, and they all have much truth to them.
Are we all looking forward to the upcoming campaign? We're well beyond Willie Horton and the revolving prison door.
Monday, 5 January 2004
Topic: Iraq
Democracy: Necessary and Sufficient Conditions
Those libertarian guys over at the Cato Institute are tons of fun.
See Can Iraq Be Democratic?
by Patrick Basham, January 5, 2004
Patrick Basham is a senior fellow with the Center for Representative Government of the Cato Institute.
Here's the core of what Pat says:Is Iraq capable of moving smoothly from dictatorship to democracy? This paper contends that the White House will be gravely disappointed with the result of its effort to establish a stable liberal democracy in Iraq, or any other nation home to a large population of Muslims or Arabs, at least in the short to medium term.
Not good.The building blocks of a modern democratic political culture are not institutional in nature. The building blocks are not elections, parties, and legislatures. Rather, the building blocks of democracy are supportive cultural values - the long-term survival of democratic institutions requires a particular political culture.
Four cultural factors play an essential, collective role in stimulating and reinforcing a stable democratic political system. The first is political trust. The second factor is social tolerance. The third is a widespread recognition of the importance of basic political liberties. The fourth is popular support for gender equality.
It seems getting a secular, free-market capitalist representative democracy up and running by mid-summer over in those parts might be a stretch.
Heck, it's a getting to be a stretch over here.
Political trust? Not a whole lot of that going around these days here at home.
Social tolerance? We say pretty things about that. And, we really will accept you - heck, we're tolerant of all kinds of folks like you - if you accept Jesus as your personal savior, and you think Britney Spears' twelve-hour marriage was far more moral than any "gay marriage" ever could be, and you think abortion is murder and assassinating doctors who perform them is justified, and you think everyone who uses illegal drugs should be executed, except for Rush Limbaugh, and that Bill Bennett knows how we all should act - just as Martha Stewart knows which chafing dish is correct. Yeah, we're tolerant. As long as you don't talk down George. He knows best.
Basic political liberties? Here? As long as you watch what you say, and where you say it. And as long as you don't get all uppity about you so-called "right to privacy." There's a war on, remember?
Gender equality? As Phyllis Schlafly. Gender equality is code for those anti-Christian New York types who flaunt God's law about women's holy obedience to their male sovereign. She knows about happy marriages. Ask her.
Yep, we're doing fine.
Topic: The Law
Your Police State at Work Protecting You. Secret Court Proceedings Make Us All Safe
I came across this at TalkLeft.com and found it odd. But perhaps it is only of interest to the two lawyers I know who sometimes log on here.
Mohamed Kamel Bellahouel was secretly jailed after the Sept. 11 attacks. His court case was kept secret. It's now before the Supreme Court. According to The Washington Post the Bush Administration has filed a request to continue to keep his case secret. More than 20 media organizations have filed requests to open the proceedings.
According to the Post:Justices sometimes are asked to keep parts of cases private because of information sensitive for national security or other reasons, but it's unusual for an entire filing to be kept secret.
Lucy A. Dalglish, executive director of The Reporters Committee for Freedom of the Press, said she was disappointed by the government's request. "The idea that there is nothing that could be filed publicly is really ridiculous," she said. "It just emphasizes our point that we're living in frightening times. People can be arrested, thrown in jail and have secret court proceedings, and we know absolutely nothing about it."
Behind the Homefront: The Reporters Committee for Freedom of the Press has much more on the case.
The case is The case is M.K.B. v. Warden, 03-6747.
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