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Nanette Lepore's Sneetch Problem
The impeccably dressed Julian Sanchez unmasks the Design Piracy Prohibition Act:
Thorny as these problems may be, a deeper question is whether it’s even proper to frame the debate as being about “piracy,” which implicitly suggests an analogy with illicit copying of software, music, and movies.One way “piracy” rhetoric has clouded the issue is by obscuring the difference between knockoffs and counterfeits. A press release from the office of Virginia Republican Bob Goodlatte, a sponsor of the House version of the bill, invokes Customs and Border Protection statistics showing that “counterfeiting merchandise, as a whole, is responsible for the loss of 750,000 American jobs” and “between $200 and $250 billion in sales.” But counterfeits are illegal under current law, and banning imitations by legitimate retailers may drive consumers, not to the designer originals, but to the black-market bags and blouses that have been linked with funding terrorism.
There are also important differences between the way copying works in fashion and the way it works in other industries. A bootleg copy of a CD or a computer program is a near-perfect substitute for the genuine article: Sony and Microsoft worry about piracy because they fear the copies will directly displace sales. Designers, however, seem at least as concerned about dilution as displacement: They worry couture consumers will flee goods that lose their aura of exclusivity, like Sneetches rubbing the stars from their bellies.
Julian invokes the horror of Burberry-covered chavs. I'm reminded of this Grant McCracken post on brand management:
A couple of days ago, I was in a mall in Connecticut and I saw a 10 year old girl, the very picture of suburban privilege, whistle past in an "I [heart] hip hop" t-shirt...For many trends, this is the kiss of death.
Terrifying. Hip-hop ought to fear girls in pigtails, Burberry ought to fear chav weddings, and Marc Jacobs ought to fear the plus size section in the back of Dress Barn. This is certainly not news, but designers seem to be using the vocabulary of piracy--something they feel empowered to legislate against--to describe the inevitable process of dilution.
Fluffy|9.17.07 @ 5:44PM|#
The problem I have with the proposal is that trademarks are already protected. If you're Louis Vuitton and make tacky shit covered with your trademark over and over, you don't need any additional protection. You only need "design protection" if you're Kate Spade and make, say, a black handbag. Sorry Kate, there's already lots of prior art for black handbags. Once you move beyond trademarks, there is no potential intellectual property in design for housewares and clothes that doesn't have more prior art than you can limply shake a measuring tape at.
|9.17.07 @ 5:46PM|#
Wednesday is Talk Like A Pirate day. That will separate brand-diluters from true scallywags.
|9.17.07 @ 5:50PM|#
This is a terrible, terrible attempt to extend an already
overextended copyright law.
Fair Use, by the way, returned
$4.5 Trillion to the US economy. No wonder they want to stamp
out freedom. It creates wealth.
|9.17.07 @ 6:11PM|#
Looking into my crystal ball I see ...
Lots of lawyers getting paid, nobody else benefitting.
I could be wrong, the bill might not become law. If it is enacted,
my crystal ball reading will come true.
JMR|9.17.07 @ 6:22PM|#
Thorny as these problems may be, a deeper question is
whether it's even proper to frame the debate as being about
"piracy," which implicitly suggests an analogy with illicit copying
of software, music, and movies.
Of course, as Richard Stallman tells us (whether anyone is
listening is another story), using the word "piracy" to refer to
copying of software, music and movies also
makes some bad implicit assumptions.
|9.17.07 @ 6:38PM|#
Wednesday is Talk Like A Pirate day. That will separate
brand-diluters from true scallywags.
Is that a Halston knock-off yer wearin', ye scurvy dog?!
|9.17.07 @ 7:08PM|#
As many of you know, I've long been a supporter of all things piratical. So you can believe me when I say that Isildur should be heeded when he mentions anything piracy-related.
|9.17.07 @ 7:09PM|#
This is stupid.
Copyright for an industry that basically recycles fashions and
trends every decade or so seems futile.
And I am no expert on copyright and stuff, but hasn't most stuff
already been designed? Aren't 99% of clothes being produced already
derivative works of previously existing designs? Isn't there a
restriction on copyrighting something that has been previously done
by others?
No designer will be able to copyright anything that has already
been designed or any derivative works.
I agree, the only people who will realize any benefit are the
lawyers.
|9.17.07 @ 8:18PM|#
I might have to turn in my decoder ring, but I'm really not up
to personing the barricades on this issue. People who actually
choose what to wear based on what's hot in fashion these days are
going to be the first up against the wall when the revolution
comes, if I have anything to say about it.
They can take my pointy-collared shirts from my cold, dead
hands.
|9.17.07 @ 8:27PM|#
ChicagoTom is right, for one obvious reason: there's only so
many ways to cover the human body with cloth and have it be
functional. I mean, "skirt" is a tube. It can be longer, shorter,
wide, or narrow, but it's only going to be a tube of cloth. A shirt
is a couple of panels with tubes (sleeves are tubes too.) Pants are
two tubes joined at the top. I suppose designers could start adding
extra legs or arms, or one-legged pants (not for the winter), but I
don't see that catching on.
And that's the problem with extending intellectual property
protection to clothing design: there's no real innovation.
Copyright protects inarguably new stuff, not small changes to old
ones. If they pass this stupid law, I hope the surviving members of
the Bryn Mawr class of 1949 sue Ralph Lauren into penury for
copying their clothes.
Ray G|9.17.07 @ 9:33PM|#
I'm happy to say that I have no idea what chav means,
though I will research it right after I post this.
What I saw was fearful enough, and I'm guessing that chav has
something to do with white trash, and the rising standard of living
that allows even these people to buy something besides WalMart
brand blue jeans.
And if "I heart hip-hop" will kill the genre, I'll personally start
handing boxes of them out at the mall every weekend until it is
sufficiently dead.
|9.17.07 @ 10:37PM|#
Ugh.
Seeing that chav wedding...too many white, pasty ladies showing off
too much mid-riff...
AT A FREAKIN' Wedding! What a bunch of tramps...
I'm no high class man myself, but if I see anyone wearing something
that shows mid-riff at my wedding, I'll personally kick their ass
out!
|9.17.07 @ 10:40PM|#
Actually I was wrong, it's not the fat ladies wearing
mid-riffless stuff...
But almost every lady was wearing a skirt that was too damn short
or one shade of Easter Egg too loud...
The Wine Commonsewer|9.18.07 @ 1:13AM|#
Clicked the link and saw Julian impeccably dressed in a, well, dress. Boy Howdy, Julian looks good in a dress, too. Or whatever slinky little thing that is. Don't make me a fag boy neither.
The Wine Commonsewer|9.18.07 @ 1:22AM|#
too many white, pasty ladies showing off too much
mid-riff...
TWC rule # 6: The clothes do NOT make the woman, the woman makes
the clothes.
Frank, those chicks were just ghastly, eh?
|9.18.07 @ 7:15AM|#
Since this thread is almost done, let me say that whenever I see Virginia Republican Bob Goodlatte's name, I think of Starbucks.
Dave Woycechowsky|9.18.07 @ 10:07AM|#
Copyright for an industry that basically recycles fashions
and trends every decade or so seems futile.
And I am no expert on copyright and stuff, but hasn't most stuff
already been designed?
The other side of that coin is that a clothing manufacturer can
stay in a safe harbor by copying old designs and not recent
ones.
If the new designs add so little to the storehouse of aesthetic
functionality then nothing is really lost when the law forbids
people from copying them, and encourages them to directly copy
older designs by defunct manufacturers instead.
OTOH, if manufacturers still insist on copying newer designs, then
it suggests that the newer designs do have substantial intellectual
property type value.
To briefly address HnR's angle on this interesting story:
yes, the pirate talk is dumb. Whoopty ding dong!
|9.18.07 @ 1:08PM|#
"If the new designs add so little to the storehouse of
aesthetic functionality then nothing is really lost when the law
forbids people from copying them"
Except, you know, Constitutionally-guaranteed freedoms and
liberty.
"OTOH, if manufacturers still insist on copying newer designs,
then it suggests that the newer designs do have substantial
intellectual property type value."
Not really. It merely reflects the fact that markets want fresh
merchandise. Surely you aren't making the argument that clothing
designs should be protected by copyright because budget
manufacturers update their product lines every year.
The fact is that there should be a heightened standard for any
legislation that takes away our Constitutional freedoms. Getting
more money into the pockets of fashion designers is no where near
sufficient. It's just another subsidy to an industry crying
wolf.
|9.18.07 @ 2:27PM|#
As a patent agent thinking about getting a law degree, I have to
say this is one of the silliest pieces of legislation to come down
the pike that will only benefit people like me. Go ahead, be
stupid.
Aside from anything else:
1) How long do you think it takes for something to get through the
maze of getting registered? Trademark: 6 months to 2 years.
Patents: 2 years before your first office action, and that's if
you're lucky.
And you want to...ummm...have a bona-fide registration of your
wonderful fashion design in an area of the economy that has a
turnover rate of designs how often? "Sorry, you'll have to submit
your designs 5 years in advance..."
2) Prior art. Yup, this is going to be the hilarious bit. At least
it should cause the wedding gown industry to collapse, since half
of them are copying 1890s stuff from France and the other half are
copying US stuff from the 1930s.
And can't you see this all getting played out in court, with two
teams of $400/hr lawyers screaming at each other whether THIS
sleeve was derived from THAT sleeve while the experts helpfully
provide "prior evidence" dating back to 1526?
Pass the popcorn, and I guess I should start eyeing that new yacht,
no?
Dave Woycechowsky|9.18.07 @ 3:46PM|#
How long do you think it takes for something to get through
the maze of getting registered? Trademark: 6 months to 2 years.
Patents: 2 years before your first office action, and that's if
you're lucky.
And you want to...ummm...have a bona-fide registration of your
wonderful fashion design in an area of the economy that has a
turnover rate of designs how often? "Sorry, you'll have to submit
your designs 5 years in advance..."
Actually, if you read the Bill (which can be accessed via a a link
in the linked article) then you will see that the examination is
being handled the same as traditional vessel hull registration. My
knowledge of vessel hull rights are limited to having read Bonito
v. Thundercraft a long time ago, so I am not sure how long federal
vessel hall registration applications take. However, examination is
to be "on the face" of the application which I take to mean that
the registration authorities would not be searching the
prior art. Therefore, there is little reason to believe that the
applications would take as long as patent and trademark
applications where the prior art is searched.
Also, if you have such a low opinion of the difficulty and utility
of what lawyers do, then maybe law school is not the correct career
path for you. Just a thought. Lawyers are usually expected to read
the actual Bill before harshing too hard on its mellow.
Dave Woycechowsky|9.18.07 @ 3:52PM|#
Not really. It merely reflects the fact that markets want
fresh merchandise.
No, if markets wanted fresh merchandise, then copying would not be
a problem. I guess I should have mentioned that there are really
two safe harbors here: (i) one for manufacturers who copy
unregistered designs; and (ii) another for manufacturers who do not
copy at all. Given those safe harbors, I have trouble seeing any
damage that this new law can do. It may turn out that those safe
harbors turn out to be so big that nobody ends up enforcing their
design registration right. If so, then so what?
It's just another subsidy . . .
No, this is not a subsidy or even particularly like a subsidy.
|9.19.07 @ 9:58AM|#
"No, if markets wanted fresh merchandise, then copying would
not be a problem."
This makes absolutely no sense. Please elaborate. Markets quite
clearly do want fresh merchandise which is attested to by
the fact that new lines come out all the time and the major fashion
houses constantly recycle (i.e., copy copy copy) old
fashions.
"two safe harbors here: (i) one for manufacturers who copy
unregistered designs; and (ii) another for manufacturers who do not
copy at all"
There is no manufacturer in the world who doesn't copy to some
extent. It seems the value here is in the registration. Why not
register every design you ever saw in a fashion magazines from 1930
to present. You'd own all of fashion.
"this is not a subsidy or even particularly like a
subsidy."
Hmm, the government is going to pass laws that create value where
there was none, and the government is directing this value towards
one particular industry. So, perhaps you want to review your "not
even particularly like a subsidy" argument for validity.
I've got an idea, why don't you post an actual counter-argument
instead of unfounded, one sentence nonsense.
Dave Woycechowsky|9.19.07 @ 10:24AM|#
Geez, crankyboots:
Please elaborate.
Recycled fashion is not fresh fashion.
Why not register every design you ever saw in a fashion
magazines from 1930 to present.
Because you would quickly be exposed and a fraud and sanctioned. I
mean the fact that paper currency can be easily stolen and carried
away in large amounts is an argument against paper currency of
sorts, but not a good one. The fact that someone can file
fraudulent design registrations is similarly an argument against
the design registration system of sorts, but not a very good one.
If the design is easy to find then the fraud is quickly exposed.
OTOH, if the design is so obscure that no one can find it easily
except the registrant then maybe the registrant has added something
of value.
Once again, the rule of thumb is: if you are going to copy, then
copy old stuff (and keep a copy of your old source for evidence).
That way when you get that c & d letter, you can just show the
registrant your old source and make the registrant go away fast. No
fuss, no muss, no lawyers. The registrant has accrued legal cost,
and you have not and the sitch therefore works to your competitive
advantage.
Hmm, the government is going to pass laws that create value
where there was none . . .
You mean like they do when they print paper currency or set up
stock markets or build roads and damns? If your definition of
subsidy is this broad, then: (i) yeah, design registration is a
subsidy; and (ii) the wors "subsidy" loses is stigma.
|9.19.07 @ 11:37AM|#
"Recycled fashion is not fresh fashion."
ALL fashion is recycled fashion. Learn to live with the facts. ALL
fashion is recycled, copied, retreaded, etc. You'd have to be a
real couture fashion snob to not admit that.
"Because you would quickly be exposed a[s] a fraud and
sanctioned."
Pursuant to which section? Sanctions require legal authority, and
there is none in this bill. Also, there are companies that do
nothing but hold patents, why wouldn't there be fashion design
holding companies? It wouldn't be sanctioned, it would probably
make decent money.
"I mean the fact that paper currency can be easily stolen and
carried away in large amounts is an argument against paper currency
of sorts, but not a good one."
Are you kidding? There are billion dollar industries built around
reducing the use of paper money. Banking, checks, credit cards,
money orders, wire transfers, traveler's cheques, Paypal, etc.
There are numerous transactions that simply can't be done with
paper money, and the list is growing daily.
"if the design is so obscure that no one can find it easily
except the registrant then maybe the registrant has added something
of value."
Or, more likely, the registrant copied everything they saw in the
thrift store, and by happenstance, one or two of the items were
more obscure than the others.
"That way when you get that c & d letter, you can just show
the registrant your old source and make the registrant go away
fast."
This is not how lawyers work. Lawsuits never go away just by
showing the lawyer papers. Unless you ban lawyers from practicing
in this area, there will be lawyers involved. You can't just wish
these problems away.
"You mean like they do when they print paper currency or set up
stock markets or build roads and damns?"
Uhh, no, not at all. The value of paper money goes down when they
print more and stock markets are privately owned.
Streets and dams, on the other hand, are a different story. Let's
say you own a business located at point X. Assume it costs $10
million to build a road from A to B. If it costs $20 million to
build that same road from A to X to B, then you have received some
government cheese to the tune of $10 million in free roads out to
your business, wouldn't you say?
But why use a fancy hypothetical? Just listen to the words of the
politicians selling the law: "Imitation may be the sincerest form
of flattery, but it's bad for our fashion industry here in New
York," said Schumer, D-N.Y.
It's pure protectionism. Sounds to me like Schumer wants to carve
some value out of our protected freedoms and give it to fashion
designers.
|9.19.07 @ 11:52AM|#
Speaking of the retread industries, how much copyright protection should I get for this?
Crosley Bendix|9.19.07 @ 12:29PM|#
ANNOUNCER: And now, Crosley Bendix, cultural reviewer and
director of stylistic premonitions for the Universal Media Netweb,
with today's Arts Review.
SAMPLE: < It's crazy; it's dangerous; it is almost stupid. It's
crazy; it's dangerous.>
CROSLEY BENDIX: Good hello, again. While browsing through an
automated cassette dispenser at a Czechoslovakian airport recently,
I suddenly noticed a name I recognized among the wares-mine!
There it was, Crosley Bendix. The title was, ah, uh, "This Affects
you," or something to that effect. And a closer inspection showed
this to be a bootleg cassette of some of my broadcasts. I suppose
they're out there right now, huddled around a squawking
international shortwave receiver in some filthy hut on Taiwan,
taping everything I'm saying on a low-end Payless cassette for
volume two.
Well, even though I'm not getting a cent for the sales of those
bootlegs, the rules of this show don't allow me to complain. Yes,
for better or worse, this radio program, Over The Edge, and every
form of distorted sound it contains, always has been, and always
will be, in the public domain. Copyright free. Raw material for
your reuse.
Here it is, week after week, available for duplication, remixing,
or editing of any kind, by anyone, for any reason. If you can find
a way to make a buck off anything you can capture off this radio
show, go right ahead, it's all yours, or anyone else's! No
permission or clearance of any kind is necessary, to do anything
you want with Over The Edge broadcasts. I hope that's clear. Of
course, you just can't beat the studio air check compilations of
Over The Edge that Negativland puts out, but, go ahead and try!
There's just way too much for them to ever get to, anyway.
So, here we are, a tiny but persistent island of free noise, with
unrestricted exploitation encouraged, in a vast salt sea of culture
now so choked and inhibited by copyright protections that the very
idea of mass culture is now primarily propelled by economic gain
and the rewards of ownership.
The lawyers behind the managers behind the artists have succeeded
in mining every possible vein of opportunity when it comes to the
monetary potential of art properties. And nowhere is this American
obsession for all-encompassing private ownership more perverse in
its effect on culture than in music.
True folk music, for instance, no longer exists. The original folk
music process of actually incorporating previous melodies and
lyrics as it evolved through time is no longer possible in modern
societies, where melodies and lyrics are privately owned.
Ah, yes, return with me now to those thrilling days of yesteryear,
before the present overabundance of law school graduates began
promoting more laws to entangle more people in order to pay their
upscale consumer bills. Before the practice of sharing in the use
of our culture became bought by corporations or withheld in private
hands. Before we went off the gold standard. Before Atlantis sank
and the survivors went to Egypt... No, that's too far. That would
throw me right into the incredibility of a different cultural
review we just don't have time for now. Well, never mind. Come back
to the present and let's start over. And that would be my
suggestion to Congress, as well.
And here is another thing I would suggest to Congress: It is now
time to drastically revise the outmoded copyright laws,
particularly with regard to the content of electronic media-meaning
anything that is experienced via reproducing equipment the public
possesses.
The revision of copyright protections is now necessary, because
media artists of every variety have long since left Congressional
intentions of cultural ownership in the rear view mirror. This, I
believe, is as it should be. But, in doing so, today's artists are
driving their sporty little art illegally. They can be pulled over
and sent to debtor's prison because their only license is an
artistic one.
Yet these vehicles of appropriation present no menace of any kind
to the general population. The only supposed threat is to the
unsatisfiable greed of an extreme minority of private cultural
owners. The reason for today's repressive cultural traffic laws is
based purely on economic control, and, as such, serves to keep many
artists off roads they need to be exploring. The significant urge
to incorporate found sound into contemporary music, for instance,
is now in virtual gridlock-on the way to a drawbridge that's always
up. We should be giving our artists a wide open freeway through an
environment full of media influences, but this route is being
aggressively denied by "art cops" working for the self-serving
marketing system that has imposed itself on culture.
What am I driving at? The undeniable wisdom of letting artists --
not business interests -- determine what art will consist of. The
need for various arts of appropriation should be obvious. Artists
have always seen the entire world around them as both inspiration
to act and as raw material to mold and remold. For most of this
century, artists, like everyone else, have been subject to a
growing media environment. Today, we are surrounded with canned
ideas, images, and sounds. My television set told me that seventy
to eighty percent of the population now gets most of their
information about the world from their television set! Large
increments of our daily perceptions are not supplied by the
physical reality around us but by the media that saturates it. Both
the content and the programming techniques of electronic media have
inspired the current art trends of appropriation, but it's nothing
new.
Any serious observer of modern music can cite a multitude of
examples-from Buchanan and Goodman's humorous collages of song
fragments in the fifties to today's canonization of James Brown
samples-wherein artists have incorporated the actual property of
others into their own unique creations. The whole histories of folk
music and the blues are typified by creative theft. Jazz and rock
are full of this, too. In the visual arts, there is a long-standing
tradition of found image collage, from Schwitters and Braque to
Rauschenberg and Warhol. This is a twentieth century mode of
artistic operation that is now nothing short of dramatic in its
proliferation, in spite of all the marketplace laws designed to
prohibit it.
It is important to note that this mode of operation has continued
to grow in artistic relevance as its major source of
inspiration-the media environment-has continued to grow.
Appropriation isn't limited to any medium, and it doesn't fade away
as mere styles do. Appropriation's major jump from visual work to
audio work in recent years only underlines the emotional relevance
of the technique. What's going on here? I believe it has to do with
deep stuff like media saturation and the opportunity for
self-defense against media coercion that appropriation engenders.
It also has to do with the Surrealist/ Dada concept of
detournement. In modern terms, appropriation is often about culture
jamming-capturing the corporately-controlled subjects of the
one-way media barrage, reorganizing them to be a comment upon
themselves, and spitting them back into the barrage for cultural
consideration. A sometimes nasty (but wholly appropriate) response
to a society in decline and denial.
At the very least, appropriators are claiming the right to create
with mirrors.
Corporate culture is trying to reach the end of this century
maintaining their skewed view that there is something wrong with
all this. But, perceptually and philosophically, it is an
uncomfortable wrenching of common sense to deny that once something
hits the airwaves, it is literally in the public domain. The fact
that the owners of culture and its material distribution are able
to claim this isn't true is a tribute to their ability to
restructure common sense for maximum profit.
But art is what artists do, and we can only hope for laws that
recognize this. Just as the dictionary recognizes new words-even
slang-that come into common usage. Until then, we are stuck with
copyright laws which were designed solely by publishing interests
and cultural manufacturers who maintain virtually unopposed
lobbyists in Congress to ensure that their present stranglehold on
the reuse of culture will remain intact. These cultural
representors claim to be upholding the interests of artists in the
marketplace. And Congress-with no exposure to an alternative point
of view-always accommodates them.
A more generous and enlightened approach to copyright law would
have it prohibit straight-across bootlegging, provide cover version
royalties, and practically nothing else. Virtually all the volumes
of statutes which now go far beyond this are not only unnecessary,
but counter-productive to the now common practice of piecemeal
appropriation in the creation of new work. The crucial difference
between simply bootlegging entire works in order to profit from
someone else's creativity and the creation of new work which
incorporates elements of existing work for the referential or
commentary effects thus produced must be made clear to lawmakers.
The present "broad brush" of copyright law is acting to censor what
artists want to do. Not a desirable role for government.
Culture is more than commerce. The law should begin to acknowledge
the artistic domain of various creative techniques which may
actually conflict with what others claim to be their economic
domain. Art needs to acquire an equal footing with marketers in
court. The question that must rise to the surface of legal
consciousness now is: At what point in the process of found
fragment appropriation does the new creation possess its own unique
identity, which supersedes the sum of its parts, thus gaining its
own right to legally exist?
The media and electronic publishing industry's argument that
appropriation equals rip-off is truly irrelevant. Unlike
bootlegging,appropriation in no way prevents an artist from
profiting from his or her own work through every form of sale which
would normally occur. Beyond that, it is only greed and opportunism
which assumes that others' partial or fragmented use of that
work-being no part of the original artist's efforts-should
additionally profit that artist. It is simply unearned gravy,
existing only because of another's efforts to begin with.
A revamping of copyright laws envisions a more free-wheeling and
referentially unconstricted art world. This, of course, would be a
lawyer's nightmare of lost work and layoffs. But for the culture at
large, it would be a vast improvement. For instance: if you are
making a movie and want to use a section of a song in the
soundtrack, you wouldn't need to clear it and you wouldn't need to
pay the artist. You would be free to put that fragment in your work
whether it appears to be a favorable context to the publisher or
the artist or not. However, if you wanted to use the entire song in
your movie-a complete self-contained creation by another-or put out
a soundtrack album with the complete song on it, then you would
need to clear it with the artist and pay royalties. The difference
between referencing a fragment of a publicly available cultural
artifact, and presenting that artifact as a complete and
self-contained performance should be the defining guideline for
artist profit.
In such a world, when an artist releases his or her work for public
consumption, they would not only receive the benefit of public
sales; they would also give up what now amounts to undeserved
control over all forms of public use of that material. If they want
to operate in the "public domain," those would be the
consequences.
To say that artists and their companies and their companies'
lawyers would suffer some kind of devastating economic hardship by
the loss of all this second-hand, uninitiated income from outside
sources is no longer tolerable when our very process of cultural
evolution is now so straight jacketed by opportunistic claims of
ownership that it amounts to censorship. Art is not defined as a
business. Let me repeat that: Art is not defined as a business. The
reuse of culture should be encouraged, not inhibited and
litigated.
Today, our entrenched copyright, publishing, and cultural property
laws stand as a monument to private greed. They need to be brought,
kicking and screaming, into our real world of modern capturing
technology and find a comfortable accord with the artist's healthy
and inevitable impulse to incorporate public influences.
Well, by now you're probably saying, "Wait a minute, Mr. B! This
thing has turned into some kind of totally serious manifesto, grant
proposal sort of thing. I didn't pay top dollar for this bootleg in
order to get a lecture. Aren't you supposed to be funny, sort
of?"
Well, I am, sort of. And that's my very next point. Appropriation,
by its very nature, often results in something funny. And funny can
be just as important in life and culture and art as all that
serious stuff that will get you ideological followers or a grant.
Let's find out by putting aside all this theoretical rhetoric, and
turning to the experiential reality of what I may or may not be
describing. I have here a, ah, a demonstration tape. An example of
found sound appropriation and transformation. And here it is:
[4'48" of assorted cut-together pieces of tape deleted]
Okay, that's it. I call this a razor tape, because it's made with
only a razor blade. Quite laborious, sort of interesting. Eh, not
the greatest thing you've ever heard, maybe, but kind of funny in a
confused sort of way. Ha. Maybe it's not finished, I really can't
tell. It seems to be made out of, ah-commercials? Yes, but they're
all mixed up and it's no longer selling anything. So what's it
about now? Anything? Of course! It's about all the things I've been
talking about. But how? What's the purpose? Well, I purposely chose
this tape because it lacks any obvious pretensions to social
significance. This tape is not going to deflect our national
obsession with the worship of consumerism, even though it's a twist
on some of the prayers; it's not going to inspire any moral
revelations among corporate policy makers, investment bankers, or
politicians; it's not going to put an enthusiasm for the democratic
process back into our population. But, maybe even this little
effort at nonsense is worthwhile in some less-definable way, and
deserves to exist for less predictable reasons. Yet, this little
razor tape is entirely illegal and is not supposed to exist at all,
without the permission of the people who made the original
ads.
Do you think they would have given their permission to do this with
their material? Do you think the creators of the original ads
should be paid, again, by me, for what I did with their work? Do
you think you could have heard it today if I had to find them and
wait for their clearance before I could play it? Do you think you
could hear it by next year? The year after that?
The answer to all these questions is: "No." There is no way to make
this humorous little tape-edit legally. And there is no way for you
to hear it legally. Yet, I did, and you did. I think no harm was
done. What do you think?
There are so many musicians and audio artists who are now actively
engaged in various degrees of found sound appropriation that it
would run me right off the end of this tape to name them all. Oh,
let's see, just one group that comes to the top of my mind is, ah,
Negativland, perhaps you've heard of them? But, ah, anyway, it's
obvious that appropriation is here to stay, as the ranks of outlaws
continues to grow. The composing of found sound materials will
continue-outside existing law-regardless of threats and lawsuits
and corporate attorneys' retainers, because, it is, of all things,
just plain interesting. And for artists, the power of interesting
will not be denied.
On behalf of all these creative spirits-the pirate guardians of
what's left of public consciousness -- this is Crosley Bendix,
urging you, whether you make art, or are in the position of
protecting it-please-ignore unreasonably restrictive copyright
protections. Because, if the owners of culture do not see the need
to encourage a creative climate in which artists are free to do
whatever interests them, America's epitaph will probably be
chiseled in legalese.
SAMPLE: What do you want on your Tombstone?
Man: I wrote those ads. Another man: Mm-hmm. Man: I wrote
them.
Yet another man: And the picture of me was not a picture I gave
them, it was a violation of copyright laws, because they copied it
on their VCR machine, with an off-air feed, it appears...
ANNOUNCER: You've been listening to cultural reviewer and social
critic Crosley Bendix.
----Transcript ends.-----
|9.19.07 @ 12:48PM|#
They're not going to do any searching of prior art and expect
any of these registrations-on-the-spot to have any validity? This
is ridiculous. Either they're a) going for a first-to-file system
(possible--expect a lot of screaming from everyone who feels his ox
is getting gored plus getting slapped down by WIPO), or b) first to
invent, which then gets into the question of prior art.
Expect everything to get tied up in law courts for years for
ANYTHING.
The more I hear about this the dumber is sounds. More $$ for me! (I
have nothing against making money off of stupidity--pain is the
only way that people learn how not to be stupid.)
|9.19.07 @ 1:01PM|#
Dave, I just went and read the text of the bill--this is even
more mind-boggingly stupid than I originally thought. Try to adapt
marine hull design legislation for fashion design regulation in a
common law country. Uh-huh.
You also have a naive view of why a lot of us get into law. No
one's paying me to be a Roman law jurist (which is what my present
legal background is in) so I'm finding something else to pay the
bills.
David Woycechowsky|9.19.07 @ 1:41PM|#
Expect everything to get tied up in law courts for years for
ANYTHING.
Like I said: you counsel your fashion designer clients to copy only
from "safe" sources and to save a copy of the safe sources they
copy from.
It is highly unlikely that the ones who listen will be tied up in
court for years.
For the ones who don't listen it is the only way they will learn to
listen and a valuable lesson.+
|9.19.07 @ 1:55PM|#
"Like I said: you counsel your fashion designer clients to
copy only from "safe" sources and to save a copy of the safe
sources they copy from."
Then the other designer who copies from the same safe source but
registers the new design first has the $400 hour lawyer sue you.
Maybe the judge buys into your "safe source" theory, maybe he
thinks you copied from the registrant and are using the "safe
source" as a cheap cover story. It isn't as simple as putting
papers in a safe, as I said very clearly before. You don't pay a
lawyer $400 an hour to just give up because somebody has papers in
a safe.
And you didn't even bother to address my suggestion that there will
be fashion design trolls just like there are patent trolls. I am
seriously thinking some cash could be made from the overwhelming
inadequacies of this bill.
|9.19.07 @ 3:10PM|#
grumpy realist: Other than incorporating, what would it take to set up a fashion design troll business? Any idea how patent troll companies work?
David Woycechowsky|9.19.07 @ 3:32PM|#
Then the other designer who copies from the same safe source
but registers the new design first has the $400 hour lawyer sue
you. Maybe the judge buys into your "safe source" theory, maybe he
thinks you copied from the registrant and are using the "safe
source" as a cheap cover story.
I don't understand how this would work. You make a design a put a
written and dated note in the file (perhaps an email) to say: "Re:
new dress design number xxx, attached is a copy of the design we
copied, as published in xxx magazine in 19xx."
If that ever gets before a judge, the other side will be very
sorry. The judge isn't going to inexplicably rule for the other
side -- rather he is going to award you attorney fees. Your
criticism seems to depends on judges being totally irrational. They
are not and any fashion design "troll"* who can afford a lawyer is
going to realize that.
* as I understand the "troll" term in the ip context it refers to
someone who owns intellectual property and does not make a
corresponding product. I am not even sure the Bill allows people to
register designs they do not offer for sale, which, if true, would
make it impossible to be a troll here.
|9.19.07 @ 4:15PM|#
"The judge isn't going to inexplicably rule for the other
side."
(1) You've (obviously) never been to court, I have about a million
times. This kind of thing happens regularly. You just don't know
what you're talking about here.
(2) Ruling against you wouldn't be "inexplicable" or irrational.
The judge would decide that you copied from the registrant (who
holds the presumption) and not xxx magazine on 19xx. The judge will
find something in common between the two newer designs, declare it
material (the legal term) and rule against your ass. Maybe you can
appeal it, but more likely an appeal will be a waste of
resources.
(3) I've been a lawyer for years, I represent multi-million dollar
businesses and I am telling you that your version of rational and a
judge's version of rational are not likely the same. Somebody rich
enough to put together a fashion troll business will find a lawyer
who knows how this works and can exploit the system.
(4) There is nothing in the bill that requires use in commerce
(which is a trademark concept anyway).
(5) From the bill: "In the case of a fashion design, a design
shall not be deemed to have been copied from a protected design if
it is original and not closely and substantially similar in overall
visual appearance to a protected design."
You're going to tell me that lawyers aren't going to have a field
day with such poorly drafted legislation? There is nothing
objective in the description of infringing goods, and a judge can
very easily say that your design is substantially similar to the
protected design. You can blather on about papers in your safe from
1933, etc. You still lose and are in for a lot of money.
Heck, you might win, and still owe your lawyers a lot of money.
Dave Woycechowsky|9.19.07 @ 7:23PM|#
(1) You've (obviously) never been to court, I have about a
million times. This kind of thing happens regularly. You just don't
know what you're talking about here.
As my torts law professor used to say, your argument proves too
much.
|9.19.07 @ 7:47PM|#
"As my torts law professor used to say, your argument proves
too much."
As the judge I used to clerk for said "this is a well written
opinion, just change the winner to the plaintiff and you're
done."
Dave Woycechowsky|9.20.07 @ 7:46AM|#
Like I said. Did your judge have more patent cases or contract cases?
|9.20.07 @ 9:43AM|#
ha ha ha ha ha ha ha ha ha ha ha.......
You're citing to Patent Law as the standard of rationality? We
already know for a fact that patent trolls win regularly and the
system is easily gamed. You're conceding my argument that these
things are easily gamed? Yes yes?
Patent law is insane with irrational theories that judges uphold
slavishly. The Patent office approves software Patents (which carry
a presumption of validity) but doesn't employ enough software
engineers to understand what they are approving. This is your idea
of rational?
Patent law has expanded so much that many companies are using
Patent
Law as a weapon to sue other companies into submission.
If you are using patent law as the foundation for your argument
that IP laws, judges and lawyers are a rational mix, Lamar wins.
Speaking of experience, your torts professor prosecuted how many
patents? Just curious.
Your 'keep the papers stashed in a safe theory' makes you sound
like one of those garage band guys who says, "don't worry about
registering a copyright, we'll just mail a copy of our CD to
ourselves and have a date stamp." How could lawyers possibly get
involved?!!
David Woycechowsky|9.20.07 @ 12:27PM|#
You're citing to Patent Law as the standard of
rationality?
No. I am making the point that if the problem is irrational judges,
then the sensible answer to that problem isn't to cut back on ip
law. That is what I mean when I say your argument proves too much.
Your argument, if taken srsly, would have us ditch contract,
property law, the whole enchilada. I have been known to be critical
of patent law judges myself on occasion, although I think I may
have a somewhat more favorable opinion of them than you do:
http://fedcirpatentcaseblurbs.blogspot.com/
|9.20.07 @ 1:50PM|#
"Your argument, if taken srsly, would have us ditch
contract, property law, the whole enchilada."
I think you mean "if taken to its logical extreme" and not "srsly"
for, how can one take such extremism seriously? I think we both
know that foisting upon judges poorly worded and ill-conceived
industry-protection legislation is a recipe for irrational
decisions and lawyerly lucre.
Don't try to cloak my arguments about the inability of the judicial
system to handle such cases as an argument that the judicial system
can't handle any cases. That's your spin.
You have an entire blog dedicated to lawyers making money and
judges making judgment calls and the PTO flat out making stuff
up....and yet you would have us believe that adding more copyright
laws to the web will involve fewer lawyers?
And no, I won't hide my contempt for the PTO or the judges who have
to enforce the PTO's errors.
|9.20.07 @ 1:52PM|#
....and you apparently make your living off of the very slop I'm saying should be limited, right?
David Woycechowsky|9.20.07 @ 4:19PM|#
Don't try to cloak my arguments about the inability of the
judicial system to handle such cases as an argument that the
judicial system can't handle any cases. That's your
spin.
You are right. I didn't understand that the argument you were
making is that judges are sufficiently reasonable to handle
contract cases, but not sufficiently reasonable to handle ip cases.
That seems pretty wrong to me because most business contracts seem
like more difficult subject matter than fashion design, but if
judges did have some kind of ip-specific insanity, then I have to
admit that that particular problem would call for cutting back
ip.
....and you apparently make your living off of the very slop
I'm saying should be limited, right?
For the last few years my work was primarily general business
contract work. That was one reason I started that blog -- because I
missed patent law. Now I am doing patent law again and business
seems to be booming. Sometimes it is and sometimes its not. As far
as my financial incentives go:
(1) I have thought, for over a decade, patents should be cut back
using (better) obviousness law in the PTO and the courts. This has
not always made me popular with other patent lawyers. Nevertheless,
patents do, in 2007, seem to be in the process of being cut back
with obviousness law in the PTO and in the courts. It is nice that
what I have long wanted to happen is happening, even if it means I
will have to go back to contract law at some point. For a patent
lawyer, I am relatively open to the idea that patents, as a whole,
are bad for the economy, but I think a lot of people make this
assertion recklessly and emotionally (which I don't find very
persuasive).
(2) I don't think this fashion design will help me or any of my
friends make more money. I am unlikely to try for or get that work.
It also may end up like sui generis mask protection or vessel hull
design protection, where there is not much work there to begin
with.
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