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.
Editor's Note: As of February 29, 2024, commenting privileges on reason.com posts are limited to Reason Plus subscribers. Past commenters are grandfathered in for a temporary period. Subscribe here to preserve your ability to comment. Your Reason Plus subscription also gives you an ad-free version of reason.com, along with full access to the digital edition and archives of Reason magazine. We request that comments be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of reason.com or Reason Foundation. We reserve the right to delete any comment and ban commenters for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
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.
Wednesday is Talk Like A Pirate day. That will separate brand-diluters from true scallywags.
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.
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.
J sub D is right.
Those 750,000 jobs, all lawyers.
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.
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?!
Thanks for the heads-up, isildur!
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.
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.
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.
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.
...Burberry ought to fear chav weddings...
We all need to fear chav weddings.
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.
Ray G - think 'urban British trailer trash', if that makes any sense.
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!
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...
ah so:
"chav" is british for "guido"
i see. this explains much.
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.
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?
Since this thread is almost done, let me say that whenever I see Virginia Republican Bob Goodlatte's name, I think of Starbucks.
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!
"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.
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?
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.
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.
"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.
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.
"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.
Speaking of the retread industries, how much copyright protection should I get for this?
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.-----
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.)
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.
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.+
"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.
grumpy realist: Other than incorporating, what would it take to set up a fashion design troll business? Any idea how patent troll companies work?
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.
"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.
(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.
"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."
Like I said. Did your judge have more patent cases or contract cases?
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?!!
Like I noted above: Fair Use $4.5 trillion.
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/
"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.
....and you apparently make your living off of the very slop I'm saying should be limited, right?
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.