Showing posts with label attribution. Show all posts
Showing posts with label attribution. Show all posts

Friday, August 11, 2017

IPSC Breakout Session IV

Copyright Enforcement 

Protecting Copyright Integrity – Shyamkrishna Balganesh & Gideon Parchomovsky
Dominant theory: © is about value. Additional assumption: w/every exclusive right comes important limitations. Every grant of power is also clear placing of limits on scope of that power. Classify them as those internal to the grant, based on its very structure (originality, fixation); prerequisites for enforcement for right (substantial similarity); defenses or exceptions (first sale, fair use).  Broad approach to limitations.

© has a clear enforcement asymmetry b/c rights owners have a clear mechanism of enforcing rights, but there’s no mechanism for public rights. Implemented if at all through litigation predicated on actual or threatened action. If you want the limits independently enforced, you want a clear sense of scope, there’s no cost-effective mechanism to know the parameters. §505 is the closest, but not clear how it will be applied—is prevailing party parity even possible after Kirtsaeng? This feeds into risk aversion on the side of users, but not of owner-claimants.

Concept: integrity violations.  The way in which common law develops incrementally is by identifying principles that fit within the present system and can be justified by present principles.  Integrity—building on existing system—idea is “fit” and justification, like a chain novel.  Where a © owner makes a claim that can’t be fit to current © doctrine or can’t be justified by current © principles, a P should be able to challenge it.  “Fit” is a doctrinal concept, while justification is about the underlying principle—a Dworkinian approach.  Doctrine is black letter, while justification is about development of rules.  © owners should be able to determine the boundaries, so we don’t want them to be deterred from bringing claims as such, only from bringing overbroad claims.

Components: Substantive integrity violation.  Procedural: qui tam structure (addressing fraud on the public, misuse of a state grant).  There would need to be a formal claim via litigation or otherwise—C&D would suffice.  Would not fit with existing © doctrine—not merely that it’s uncharted territory.  Cannot be justified using copyright principles as an attempted expansion of doctrine. Courts do a pretty good job of this in the common law generally.

Paradigmatic situation: Paramount v. Axanar: crowdfunded fan film.  Claim to own Klingon language as a whole was the integrity violation (though the claim based on derivative works was “on the wall”).  Paradigmatic lack of integrity violation: Kirtsaeng—the distribution right was an area of ambiguity, which could be justifiable in © principles.

Standing: structure similar to False Claims Act: protection of public domain.  Remedial teeth: instead of waiting for declaratory relief, create an incentive for 3d party enforcement—reverse statutory damages.  Aggrieved P can get statutory damages w/o proving actual harm.  Statutory minimum for successful claim; alternative actual damages where P is directly affected.  Equitable relief as well.

Lemley: I understand what overbreadth means in a claim-based system like patent, and I know what overenforcement looks like in © but I don’t know what ex ante violation looks like in © where you might assert rights against a fair use or against a not-fair use.

A: Has to be a formal claim of some sort.  A simple statement w/o enough proof of overbroad claim: P’s claim would fail.  P has incentive to wait until the breadth of the statement becomes clear. 

Lemley: then you lose the advantage of solving the in terrorem effect.

Deterring Copyright Extortion: A Consumer Protection Approach – Ben Depoorter & Peter S. Menell
Perfect storm: digital age, Napster, increased statutory damages; RIAA et al. ended up targeting individual users.  Bittorrent used for porn movies; created a nice little business model, identifying people who’d be embarrassed to be named in a suit; make a deal w/© owner; get lots of people in one swarm and send lots of threatening letters; profit.  No cases are litigated all the way through; seamy side of P’s bar.  Many ISPs comply w/these subpoenas.  The Prenda letter got a lot of a notice—people like you have been subject to large awards; go through the history in a somewhat misleading way, mentioning default judgment of $1.5 million dollars (but that’s a seeder, not a downloader).  Doing harm to © system.  Only 2 adjudicated cases where someone in this situation gets held to be an infringer.

Motions to quash: improper joinder, undue burden, lack of personal jurisdiction; 1A right to anonymity.  Advice for those who shared files: (1) don’t hire Charles Nesson; what happened to Tenenbaum, who thought he could discharge damage in bankruptcy but was wrong, was bad. (2) Default judgment risk is serious; the cost of doing business is about $3000—you’ll pay that much for a lawyer to fight or to settle. (3) Don’t lie. (4) Might be able to avoid liability on a technicality; Matt Sag’s article gives good advice to lawyers, but you’re paying either way. (5) Clearly $150,000 is not what you will pay. You should probably settle, but the number to put in is not clear.  Sag uses about $1500; he thinks that’s a good starting offer but not guaranteed.  We’re not looking at this from a socially optimal perspective, but private cost/benefit analysis.  (6) Get a subscription service.

If you didn’t share files, the unfortunate truth is that the advice is somewhat similar.  Still a disruptive experience.  This is the price of a civil society that uses litigation and doesn’t fee shift by default.

© Office could provide objective advice, though he’s not confident they’d do it; many of their patrons are committed to statutory damages.  Try to put what’s almost ½ of all filings into some kind of small claims/UDRP system—judges would very much like this off their dockets.  Fed courts have many costs v. a modest process that is a slap on the wrist—but should also make it easier for © owners to find out who these people are. 

Hard to solve w/o recalibrating statutory damages.

Taking Intellectual Property into Their Own Hands – Amy Adler & Jeanne Fromer
Not a new problem, but perhaps growing—high profile examples.  GucciGhost—artist using Gucci logo on clothes. They hire him to design part of their line.  Big hits, sold out for $.  Gucci elements w/own take—lots of positive critical attention. Success at coopting him.  Gucci claims street cred as “essence of the Gucci brand.”  Playing w/theme of authenticity—using Guccy on elements.  Contrast: Gucci put a piece forward w/puffy sleeves w/Gucci logo, which looks a lot like Dapper Dan’s work (Harlem based tailor who bought actual products and made new clothes out of them).  Not such a clean-cut story. Not everything that’s reappropriated is critically acclaimed.

Aquazzura and Ivanka Trump: straight up social shaming in the media.

Richard Prince’s New Portraits & appropriating appropriation: new portrait series taken from Instagram.  Portraits “curated” from Instagram, sold for $90,000; 4 people have sued, while one target, the Suicide Girls, an alternative porn collective, chose to appropriate the appropriator—they got a lot of what litigation would have afforded, but they got it overnight on the cheap.  They sold his work for $90.  Internet loved it; they made money (for charity).

Drake and James Turrell, an iconic light artist.  Drake loved Turrell’s work and created Hotline Bling using sets that were copies of Turrell’s installations.  Rap IP diss songs: Tupac Shakur’s Hit ‘Em Up v. Young Jeezy’s Stay Strapped.  Accusing people of taking other things, and they reappropriate and rework what was taken and call the taker out.  Tupac adapts the beat of Get Money by Junior Mafia and raps Take Money.  Reworks a hook from another song and delivers it w/same melody and turns it violent.  Lots of accusations of stealing, copying, beat biting, taking—taking samples that he knew Tupac was using. 

Working outside the law to (1) get financial compensation, (2) get attribution, (3) avoid misattribution of who’s the appropriator.  It’s cheaper, but there are no procedural protections; it’s very easy to call someone out for copying, even in a way the law might not recognize as a cognizable taking.  Effects on IP law’s goals?  Do we get more or better creativity when people create art in response to a taking instead of filing a lawsuit?  Do we get better branding (Gucci)/claims of authenticity?  Does it create more or less risk aversion on the part of appropriators?

Q: Greg Mandel’s empirical work suggests people view IP as an attribution law. Your project suggests that this is the heartland of what people believe the law to be—they think they aren’t acting outside the law but enforcing it.

Lunney: take a broader view on self-help, which has fallen into disrepute in other areas—landlord-tenant repossession; cars.  [I really like Steve Clowney’s article on this.] Drug territories and how those are maintained through self-help. Don’t treat this in isolation.

A: we haven’t decided this is all good.

Sheff: focus on distinguishing TM/©.  Attribution and control are distinct. Reappropriating something that’s been appropriated, for a brand, means collaborating in cultural creation of meaning. If you hire the guy that’s different from appropriating a street artist’s work. Tiger by the tail: can come back to bite you when alcohol brands, fashion brands are trying to appropriate youthful energy, and then youthful energy starts riots.  Doesn’t seem as much of a problem in ©.

Laura Heymann: Feedback loop—does it communicate anything to the community about what the law is?  Suicide Girls action didn’t deter Richard Prince.  He wasn’t required to disgorge any $.

A: yes, it’s odd to get relief w/o the appropriator having to pay—you get $, but not from Richard Prince; you get attribution w/o his involvement. So what are the incentive/deterrent effects w/o some other reputational harm?

Copyright Irrelevance in Architecture – Kevin E. Collins
Lots of protection overlaps, but architects aren’t using any of them. Underenforcement (not normative judgment but vs. broad protection that is available).  Irrelevant in architecture based on what theory? Incentive to create?  Enabling transactions?  © is irrelevant for custom designs, but not for stock designs (where it is licensed to many). Almost all non-residential design is custom, and stock designs dominate residential communities. There are few licensed architects in stock design world, where most of the designers are “registered designers” not licensed architects.  Licensed architects have contempt and embarrassment for registered architects who design stock houses—“ambulance chasers.”

Suits against transactional partners—employees who leave firms, or people who fall out w/builders or clients—those are different kinds of enforcement. Enforcement against transactional strangers is where © is necessary to go out on the market; enforcement against transactional partners is different.  © isn’t relevant for bolstering exclusivity, but for other purposes.  Relevant to help architects get paid, but not the ordinary “incentive to create” story.  Almost all suits in custom design are against partners; almost all suits in stock design are against strangers.  Sometimes suits in the custom space are owners of homes who are pissed off at copying of their houses.

Of 3 custom design nonresidential cases against strangers, two are industrial designs.  All © trolling is in stock design.

Q: different transaction costs exist in each case (strangers v. transactional partners).

A: True. Custom side ends up w/ a lot of suits against clients; both sides have about the same # of suits against departing employees.

Lunney: consider legal work—custom legal brief is generally not copied, tailored to fit facts of your case; you’re paying for professional judgment.


A: true, demands of clients and sites are different; that just may affect substantial similarity. Different projects can end up looking quite similar!

Friday, November 07, 2014

The Eureka Myth: Reputation

Fourth Session: Reputation and Policy Take-Aways

Abraham Drassinower: what does thinking about misalignment tell us how to think about IP?  Move from debunking eureka myth to debunking the myth of progress.  Misalignment of IP with its own justifications, needs of its creators. Whatever IP is, it’s not an instrument of progress.  Realign it with its own progressive purpose?

Because you’re talking about misalignment b/t interview data and progress, you’re not talking about whether progress should be the focus of our attention.  Quantity is the wrong metric.  Social engineer with balances can’t figure it out.  The concept of value, and circulation of value, can’t provide sufficient foundation for the specifically legal concept of IP.  Like Holmes in INS v. AP who tells us that property is a social category.  But will qualitative approach answer the question either? If the problem is indeterminacy, then lived experience may not help answer the question of value.  Then IP remains unjustified as instrument of progress.

One conclusion: strong IP/maximalism is not correlated with progress.  Correction of mistake: gather more data but the justificatory mechanism remains collecting data to achieve progress.  But it seems at least as plausible to ask whether your empirical observation that IP doesn’t align with progress doesn’t mean that IP isn’t an instrument of progress.  Maybe it’s about something else.  Hard to say in the US though. 

More subtly: it’s the meaning of progress, rather than the nature of evidence to be deployed, that requires interrogation. But that seems to require not a recalibration of IP but rather a reassessment of what it means to gather data when you’re trying to justify something.  It’s very hard to get rid of the incentive story by looking at evidence.

Questions: (1) What is progress? (2) Is progress the same for all three cardinal branches of IP?  (3) How can data collection answer normative/legal justification questions? Not saying it doesn’t, just saying it’s not self-evident.

Joe Bauer: Difference between individual and corporate aims: corporation aims at maximizing rewards. But corporation is a legal fiction. IP is directed towards wealth for owners.  Are we as a society acting at our peril if a reduction in those rewards significantly reduces willingness to invest in IP.  (Well, how are the relative returns?)  Also, corporations aren’t one size fits all—financial rewards may play greater or lesser role.  Significant investment/unclear payoff may be different: movies; pharmaceuticals.

Should we fine-tune the rules to differ across types of work, authors, inventors, owners?  Should we give more attribution rights, and if so is the European model appropriate or some American version?  Copyright and patent are exclusive; is the implication of your analysis that compulsory licensing would be better?

Barton Beebe: IP as enabling rather than incentivizing—a key insight.  Creating conditions for play—connection w/Julie Cohen’s work.  How that relates to process over product: good IP facilitates the process and doesn’t allow incentivization imperative to destroy facilitation. Facilitation applies to second-generation artists; importance of derivative works comes out.

Shifting away from process into trademark law: is trademark law the same as attribution and reputation?  Not quite. Open source communities is very anti-IP but get very fussy if you don’t honor attribution rights.  Creators (note it’s a charged term) accept less money if you offer them autonomy and attribution.  Unalienated labor can be had more cheaply; they also want connections with consumers.  Make the market human to them; you can pay them less.

Book reports overreach; people become aggressive and fussy whereas underenforcement prevails in the rest of the book.  Human attribution is dangerous in the corporate context—the whole point of TM these days is not to indicate source but to obscure it—no, this shoe was not made in the Phillippines by an underpaid child, it was made by Nike.  Branding as authenticating source—old strict source theory of TM law has been replaced by anonymous source rule.  Book shows that everyday TM law isn’t about branding or persuasion but defamation/right of integrity.  A name is a creative act (Laura Heymann). 

(1) Star systems/mere mortals.  (2) What about those who don’t rise to the level of pro paid artist or who give up?  Adolescents’ views?  (3) Concept of the romantic author and how it might fit in. Romantic author as solitary voice/artist struggling in face of massification and speaks ex nihilo, creating something out of nothing.  A concept created in response to new material conditions of industrial production—secularization of Protestant tradition per Martha Woodmansee.  Never actually bought this as explaining copyright law.  We use the trope of the author creating ex nihilo to justify IP rights—if the author didn’t create out of a community, then he deserves all this money.  Silbey’s book creates image of people opposed to the market, working for other reasons, in opposition to industrial capitalism, but is that opposition really as opposed as all that? 

Market aspect to reputation: people who get to construct themselves as playwrights/novelists while being supported by spouses—if they’re wealthy that’s cool, if not we judge them horribly.

Mark McKenna: very few people wanted to talk about reputation here.  Hard to figure out what to say.  Merges’ reaction: this book fully justifies a strong attribution right overruling Dastar. But reputation is used in a number of different senses throughout the book by interviewees. Some talk about their reputation as scientists/artists—for being creative/innovative. Others talk about reputation in business world/ability to get deals done. Then there’s reputation as source.  Reductionist move to either talk about TM or right of attribution. But different uses may have little to do either w/TM or ©.  Attribution right would do no work for most of these reputational issues—the things that bothered artists most were some of the things they had the least justified claim to control, and giving control over those things to the artists might well be unconstitutional.

The more you see in TM law, the more you should worry about a free floating right of attribution. What counts as a “work” deserving attribution?  A piece? Whatever the author says? Who gets to say who’s a source?  Experience w/TM law is not promising.  

Why is the impulse to provide an attribution right to an artist and not to the people who stitch the shoes, who are also vital to the creation and might care a lot too.

If you were designing a legal system to deal with all these kinds of reputation, would want to think more about harm. In some cases the harms might have economic consequences but in others they might be purely emotional. Under what circumstances are those harms real? Or are they just idiosyncratic harms to the author?  Might see inverse relationship between most significant dignitary harm and greatest willingness to provide rights; thus his deep suspicion of attribution. Reputation is not one thing.

Nicole Garnett:  Some people respond to incentives and the Q is whether they’re producing what we want.  Decide what the “more” is and then investigate how the incentive works. 

Overreach/leakiness—all about optimal enforcement.  Book seems to give sense that level of enforcement is not optimal, but we never want 100% enforcement of the law. Fact of exclusion rights enables community; owner can tolerate intrusion on lawn because that won’t actually dispossess her.  What’s optimal level of leakiness?  Especially in communities where norms do more work than law.

Loren: Likes Traffix because court is clear that it’s concerned with harassment value of IP right: default rules that don’t allow quick dismissal can harm competitors for lawful behavior.  It’s that harassment value that is the overreach. Twiqbal has helped dismissal for ridiculous copyright claims.  What’s the harassment suit value of an attribution claim? That’s what makes her nervous.

Garnett: rights always raise possibility of harassment suits. Is it particularly bad here?

McKenna: tied to the remedy. If there were statutory damages available there’d be nuisance value to suits.

Loren: harassment value used to be much higher because of possibility of preliminary injunction.

Golden: making inequalities worse through just providing attribution? 

RT: Carol Rose: rights are means of communicating.  If they aren’t clear or are misunderstood, trouble can arise. Or different communities w/different norms intersect and clash.

Silbey: could be very hard to understand what interviewees meant by reputation. It’s a category that didn’t make sense as a whole.  [RT: could see it as a cluster of concepts/prototypes.] Point about blowback of attribution right—agrees with McKenna’s assessment.

Said: underenforcement—we have no duty to police ©.

Silbey: may have given them the category by asking; there are still multiple issues w/ meaning.

Kelly: culture and habits; mixed motivation could be consistent w/law and econ, but here’s one place where assumptions miss the boat by starting w/individual instead of more social view of the person, in context/social setting.

Loren: © and patent as driving different types of innovation than trade secrets, live performance, etc. As long as there’s sufficient respect for the distribution models chosen, it can work. Price discrimination/arbitrage: if it avoids a chosen distribution model then maybe it’s not justified.

Drassinower: legal construct of moral rights limits their scope: not a general defamation protection.  Did interviewees have a defined sense of what a reputation was?

Beebe: we didn’t talk much about the chapter on lawyers.  Lawyers aren’t the talent; they’re a cost center, as one interviewee says.  Was there a class division?

Silbey: trying to be helpful to people who don’t think they need you but they do.

Schwartz: litigators are problem solvers—may be seen differently than transactional lawyers.

Silbey: necessary evil (litigators). In-house tended to be more transactional, but many had moved between roles over time, except for patent specialists who only drafted patents or did audits.  Even young ones generally had varied experience.

Golden: reputation among informed peers/reputation among consuming public might differ.  Lawyers drafting patents have to avoid becoming inventors themselves.  Lawyers can also have involvement w/designing around.

DiCola: one bit in the lawyer chapter that he really liked was a music agent convincing an artist to take the money for a 30-second spot.  That’s a representative story—there was a moment when VW started licensing indie rock and it became ok because VW was cool; shift from “don’t sell out” to “I need the money.” 

Cohen: IP lawyers have a choice: discipline the talent by normalizing output that can be monetized, or they’re mediating between creators and firms, taking into account that firm’s demands can’t just be ignored but that talent has demands as well.  The people whose stories seem happy are those who are mediating.  When we teach IP, are we teaching a hermetically sealed causality story or teaching the need to mediate?  We can do the latter.

Professional responsibility questions: the Model Rules are litigation focused; don’t get at this delicate negotiation at all.  Institution-building as a goal.  Contrast: MERS and professional responsibility—people are going in to foreclose with no evidence, and now it’s a professional responsibility issue at the individual foreclosure level.  But nobody in power is saying that Covington did this incredibly unethical thing by building this powerful institution, MERS, at the behest of the top banks, even when it was absolutely foreseeable from day 1 that it would screw up the real property system.  Lawyers build stuff: they built Spotify; they built Aereo. That’s a kind of mediation too.

Golden: see constant demand by clients for noninfringement/invalidity opinions in patent; some lawyers seem willing to provide those.  You might orally communicate your opinion if it’s unfavorable; they might shop around.  That’s a product that comes from the lawyers, though of course it’s to overcome a problem created by lawyers elsewhere.

Saturday, February 08, 2014

The ecstasy of influence

The Way We Live Now by David Brooks, by Jody Rosen.  Violation of the moral right of attribution?  Does this flunk Rogers v. Grimaldi?  Is it protected against trademark claims anyway?  Transformative work of the day? (Maybe not. I've got another one coming.)  Bonus: Jonathan Lethem's The Ecstasy of Influence.

Wednesday, November 28, 2012

Okay, very obvious joke

... but Nicholas Taleb appears to be a bit fragile.  I'm sad that the blogger didn't just add a big disclaimer at the top of the parody post (or even tell Taleb and his publisher to pound sand, but that's a personal decision).  I'm sure that now that the parody is gone, no one will accuse Taleb of egomania.

Monday, November 05, 2012

Appropriation, artist

The very interesting The New Inquiry has a forthcoming article (presently subscribers-only), Being Damien Hirst, an interview by Jesse Darling of Slovenian Damien Hirst, who tweets and has other social media presences.  The whole thing is worth reading, especially for people interested in trademarks, authenticity, and attribution.  Some highlights:

I did consider Jeff Koons, but because I wanted to appropriate the very spirit of contemporary art, it really had to be Hirst.

… The point of Paris Hilton is that she’s famous for being famous. This is the same logic that defines contemporary art, in that the art of Damien Hirst is expensive for being expensive. The point of my project is to shake the balance of this logic. What happens if people start believing that the cheap and meaningless art I make is created by the greatest artist of our time just because I appropriated his name?

… The highest sum I ever got for a single piece was €100. Of course I realized right away that something was wrong, so I contacted the buyer and asked him if he actually knew what he paid for. Obviously he didn’t; he thought he bought an “original” Damien Hirst, even if that “original” Damien Hirst was just a scribble on a piece of notepaper. He was too embarrassed to ask for a refund once I’d explained things to him, but he got the money back anyway because I am not a scam or a fraud or anything like that, and I don’t care about money.

… The disclaimers are because too many people seem to believe I am the British Damien Hirst, despite the fact that the art I do looks like crap, and is crap. I got sick of explaining this to everyone, plus it made me feel guilty, even though it isn’t my fault if people get fooled.

But it doesn’t seem to help all that much, since people still want to believe I am the British Damien Hirst. I don’t know if it’s because people don’t read what’s written, or because people don’t believe what’s written; it annoys me how people can’t seem to see the difference when it’s so obvious, but if you can’t see the difference between the crap Slovenian Damien Hirst makes and the “great art” British Damien Hirst makes, just because they share a name, then this only goes to prove my point.

… I contacted [Hirst’s gallery] some years back and asked them directly if they would approve what I was doing. They said no. At that point I considered giving up on everything. But then I thought they were such hypocrites—warning me that what I was doing was a trademark infringement, while also knowing that one of Damien Hirst’s major works was a much more severe case of trademark infringement, and defending it for being an artwork. They had a different opinion of what I’m doing, because it’s against their interests. But then I realized they’re just running a profitable business, so why should I care what they think about my art since they don’t give a damn about art in the first place?

… I sincerely consider Damien Hirst to be the best artist of our time. I don’t have anything against Damien Hirst and even if I did, I don’t think I could do anything to damage his brand. Quite the opposite: by doing what I’m doing I am helping his brand gain relevance. For me Damien Hirst is just the paint I use to create my paintings.

Sunday, October 28, 2012

What does "counterfeit" mean for books?

This story of two reports, one allegedly an "addendum" to the first but from an entirely different source, with the same cover art, “key message” sections, chapter heads, fonts and footnotes, raises a number of interesting IP questions alongside the political/propaganda ones.  It reminds me of the pro-slavery "sequels" to Uncle Tom's Cabin by people who weren't Stowe, among other things.  The label "counterfeit" applied by one professor is about authenticity, not authorization.

Similarities such as "Both reports dedicate a chapter to transportation. Both illustrate key points with a photograph of a big rig, shot low to the ground from the driver's side" couldn't support a copyright claim, since the original is a work of the federal government.  And it's unlikely that many concepts of authors' rights/personhood/attribution rights would cover the government, though I suppose they could.  But does "addendum" (plus the other similarities, if they can properly be considered) communicate a false message that it comes from an official source in a way that would survive a Rogers v. Grimaldi examination?

Saturday, May 05, 2012

Roflcon Keynote: Supercuts


Panelists: Rich Juzwiak (Fourfour / “I’m Not Here To Make Friends”), Aaron Valdez (Wreck & Salvage), Duncan Robson (“Let’s Enhance”/“Tumbleweeds”), Andy Baio (mod – Waxy.org)
Baio: Supercuts are a labor of love because of how much work they require finding all instances of an event, phrase, etc. in some set of materials.  (Sounds a wee bit like vidding; interesting what kinds of claims to labor producing value get made.)
Aaron Valdez: Bill Clinton, master auctioneer, saying numbers (I don’t know why this is funny, but it surely is).  Done on real video at university.  Nonlinear video editing equipment was still very expensive, so he used 60mm found footage, e.g., a compilation of dissolves from educational films.  I’m Bruce: Bruce Willis.  Was able to monetize a Sarah Palin supercut and pay for hosting fees.
Rich Juzwiak: Primarily a writer, but the great thing about the internet is that you can express yourself in the appropriate medium if you figure it out.  Again one of the things I noticed about his description was the similarity to vidding, here in terms of serendipity/in-process revisions: once he figured out he was making a supercut, he had to go back and do a lot more work to reconstitute the thing he now figured out he was making.  I’m Not Here to Make Friends” is not comprehensive, though people think it is—there were a bunch of instances of the phrase left out!  Not in Kansas any more cliché: inherently a reference to something else, but no one quotes the line as it was said in the film.  He discussed his struggle for credit when mainstream media copied the cellphone service supercut; the ombudsman thought he was just some random guy from the internet, and he thought it was insulting that they couldn’t be bothered to click on his YouTube username to see who he was.  Based on feedback, thinks his audience likes multiple sources instead of something just from one show (or maybe they just hate Paris Hilton).
Duncan Robson: Visual effects background, motion capture & crowd simulation.  Got asked to make a supercut of tumbleweeds for an art exhibition.  Tumbleweeds: very different audience than the internet audience.  Couldn’t actually find the “iconic” tumbleweed shot of a tumbleweed rolling across the screen in an empty town; don’t see them in spaghetti westerns.  (I really would like to know the “got asked” background—the creation of social/intellectual capital is very interesting and fraught.  I also love the tumbleweed itself; the video looks like a single tumbleweed journeying through a huge number of movies, a sort of travelling gnome.)
Baio: what makes a good supercut?  (Note that I’m only about 80% confident of attributions here, since my facial recognition skills are minimal.)
Juzwiak: a good supercut has to be comprehensively researched, esp. if you’re making it for fans.  Aspect ratios and editing are very important. 
Valdez: good to make a statement, instead of pointing out something that people just say and aren’t cliches particular to cinema/TV. You could cut together people saying “How are you?” but that doesn’t tell you anything.  Also doesn’t like montage (best Hollywood kisses, best putdowns)—not even supercuts because there’s no chance of being comprehensive and it’s so general; go on forever.  (Compare his other statements about how you just need to throw enough at people that they think it’s comprehensive.)
Robson: people are using their own limited DVD collections, and what he enjoys is going over new movies/shows.  Uses TVTropes and IMDB to collect stuff, but you have to look for alternative sources.  (Ah, the politics of collecting—and always underneath, the gendering of creativity.)
Baio: most are done by fans, Dr. Who, Star Trek, My Little Pony (he says there are some amazing MLP ones; I presume by bronies?).  Pointing out lazy screenwriting and tropes.  People may not even realize they’re behaving the same way as everyone else when put in the same reality TV situation.  Showed a video of Obama cut to show every time he said “spending”—interested in seeing if this starts getting used by actual political teams.  (I thought that already happened?)
Valdez: Republicans are bad at remix.  He gets comments suggesting that he should make one for Republicans and he says “that’s not my politics, you do it!” but no one does.
Baio: Clocks supercut lasts 24 hours; has to be seen in person; not available online.  Are supercuts art?
Valdez: they can be.  More compilation/fan videos; being art was not necessarily the goal.  As experimental filmmaker, had trouble injecting humor into work, and on the internet he could be himself/not need to be serious and put total meaning behind all his work.
Juzwiak: thinks of his work as criticism.
Valdez: The boundaries are so limited: where can it go?
There was a supercut of Big Lebowski (basically all the cursing), Valdez did a supercut of the porn version of the Big Lebowski (also cursing, limited naughty bits).
Valdez: teens are remaking someone else’s supercut, aware that it’s been done before but want to try themselves. Used as entry point to get into remix.
Debut of Robson’s Three Point Landing, which shows a lot of people landing on one knee with one hand on the ground.
Q: do you ever get a sense someone’s copying your style?
Valdez: no, the form is so specific.  How would you steal the style?  Some people have claimed that I stole their style—George Bush without all the words.  There are dozens of these; there are natural responses, and limited choices of what you can do with one video source.  Sarah Palin: someone did a similar video.  If you’re making remix, you can’t complain about emulation.
Juzwiak: only has a problem when someone has taken his statement/concept—or Jay Leno copying Taylor Swift looking surprised when she won awards without attribution.  He’d used YT source and they needed HD quality sources, so they found them and edited them to match his. Leno says “we put this thing together,” which was totally true and yet false at the same time.  The controversy was actually great because it got a lot more exposure.

Sunday, October 03, 2010

Variances in attribution norms

The New York Times on a controversy over whether a recent article was properly credited.  Of note: (1) The author denies even reading the allegedly similarly structured pieces, but the article proceeds mostly as if he did, or might have.  (2) The similarities are pretty clearly what copyright calls scenes a faire; the question is whether norms of attribution were violated, not copyright.  But the author's defenders argue that such norms were not violated because the topics are scenes a faire, such that any treatment of the subject--the effect of linguistic differences on thought--would cover the same ground.  (3) The norms of scholarship are not the norms of journalism; journalists treat citation as minimally required for aesthetic reasons.  Should aesthetics weigh against attribution in this way, as Zahr Stauffer argues it should weigh against disclosure of commercial sponsorship in many cases?  (Aesthetic here means readability, but then don't aesthetic claims often really mean "not as many people will like/watch this if I do it differently?)  (4) The article concludes that web versions of articles can do better in giving credit--which in this specific case would bring us back to question (1), whether the author had read the other scholar's work.


HT: Francesca Coppa.

Thursday, December 17, 2009

A different take on the attention economy

I've written about attribution and credit before; Terri Senft has a very interesting essay excerpt up about how those concepts play out for teens, especially teen girls.

Wednesday, September 30, 2009

Authenticating Warhol

The NY Review of Books has a very interesting article on this perhaps paradoxical endeavor, including a review of documents in the lawsuit against the Warhol Foundation. The dispute raises questions at the heart of Warhol's endeavor to separate art from authenticity. (There's also a cute piece on David Hockney's use of the iPhone to create and share new art, but despite the promise in the print edition I can't find it up on the website yet.)

Sunday, June 21, 2009

A fire station of unknown origin

Pacheco Ross Architects, P.C. v. Mitchell Associates Architects, 2009 WL 1606066 (N.D.N.Y.)

The parties, who had worked together in a previous incarnation and apparently ended up in a nasty split, fought over advertising claims related to sixteen architectural designs shown at industry trade shows, in general marketing/PR materials, and on the internet. They compete in a specialized industry, the design of fire houses; each project is worth six or seven figures. Advertising that a company has received an architectural award and that it has performed previous architectural work are useful ways to attract new clients. A large percentage of new business comes from the handful of trade shows each year that are attended by fire chiefs, commissioners, and other fire personnel. These customers are likely to be confused if two different firms claim to have received the same award or performed the same work.

The court reviewed §43(a)(1)(A) and (a)(1)(B). (I bet you’re thinking, correctly, that Dastar precludes an (a)(1)(A) claim, but stick around—(a)(1)(A) will retain relevance.) The opinion identified three ways of proving deceptiveness under (a)(1)(B): survey evidence, evidence of actual confusion, and “argument based on an inference arising from a judicial comparison of the claims and the context of their use in the marketplace.” A welcome result, but not one that’s very common, to say the least!

Here, there was neither survey evidence nor actual confusion evidence, but the court nonetheless went on to consider “whether the ordinary, prudent customer in the marketplace would likely be confused,” using the Polaroid factors. The court said these factors were “well-known and need not be recited in their entirety here,” and “can be enlarged or diminished depending on the facts of the particular case” because the court’s evaluation is not mechanical, but should focus on the ultimate question of confusion. (Notice how not reciting the factors helps obscure that the factors are designed to assess trademark infringement, not false advertising in general!) I like how the court thinks; I am increasingly of the opinion that the multifactor confusion test, though it has its weaknesses, is superior to the rigid and ultimately insupportable falsity/misleadingness distinction.

Applying this method, the court found that the Polaroid factors favored a finding of likely confusion for 14 designs, which the court proceeded to order credited in particular ways. The confusion with which the court was concerned covered primary responsibility for designing the architectural works and/or receiving architectural awards. The modified Polaroid factors played out as follows: The parties’ products are similar in quality and consumers are relatively sophisticated. However, the other factors outweighed these considerations: the strength “of the moving party’s claim to be responsible, or largely responsible, for the architectural design and/or award in question”; the close similarity between the parties’ representations that they were responsible for the designs/awards; the identity of services and advertising channels; the parties’ intent to continue making the same claims; the testimony of both principals that confusion was likely; and the parties’ lack of good faith. (While the strength of the claims makes some sense, comparing mark strength to the degree to which the claim at issue is clearly false, the similarity of the parties’ representations will rarely be relevant in a false advertising case. Applied to false advertising, the exact Polaroid factors will often be poor fits—as the court partly acknowledged by modifying them.)

The court required attributions to be conspicuously placed near the relevant claims, in a typeface at least as large as the claims, with no additional language or competing attribution (including claims by one party to have been part of the “design team,” claims to have been “in charge of design,” or references to “the firm he founded”). The attributions had to disclose the architect of record, though in some cases that had to be accompanied by “now known as.”

Friday, April 10, 2009

Too much attribution?

This discussion of a Dow Jones site's reuse of other blog content suggests that over-attribution, though accurate, was the source of bloggers' protest: by using pictures and bylines for the bloggers, the site seemed to imply that the bloggers were actually working with the site. Would a Lanham Act claim be barred by Dastar? I think not (though I wouldn't advise bringing the claim or think it ought to be won), but there are cases out there that suggest otherwise.

Wednesday, May 21, 2008

Reverse passing off claim fails as false advertising

Landrau v. Solis-Betancourt, -- F.Supp.2d --, 2008 WL 2091125 (D.Puerto Rico)

Some background here. The court found that the homeowners initially contracted with Solis-Betancourt to design a renovation, then decided to build a new house. The homeowners gave defendant Solis a “rough conceptual sketch” of the configuration of the new house, and then they worked together to refine it. After that was done, the homeowners hired Landrau and her firm. The homeowners gave Landrau a sketch of the new home, though there’s a factual dispute over whether Landrau was aware of Solis-Betancourt’s involvement at this point.

More basically, the parties disputed who was the “creative force” behind the architectural design. Solis maintained that Landrau was only hired to provide “technical working drawings” necessary to get building permits. There was evidence that Solis reviewed and modified Landrau’s drafts; modified the building authority-approved plan; and continued working on the project after the permits were issued, whereas Landrau did not. Landrau, however, introduced evidence that both she and the construction manager believed that Solis was only responsible for interior design or decoration, not architecture, and that the design changes during construction were merely “cosmetic.” (These details of the factual dispute make clear that Dastar precludes this claim under §43(a)(1)(A). The “creative force” question is precisely the kind of reverse passing off claim the Court meant to preclude unless it could successfully be pled as a false advertising claim.)

As is often the case, the practicalities of business trumped legal certainty: Landrau didn’t have a signed written contract. She sent the homeowners a letter with a fee proposal and an attached American Institute of Architects form contract which discussed architectural services. But the homeowners didn’t sign the fee proposal or the form contract. The parties dispute whether there was an oral agreement to the contract.

The court first asked whether this was a §43(a)(1)(A) or §43(a)(1)(B) claim, because the plaintiffs’ arguments were ambiguous. (a)(1)(A) covers “false representations concerning the origin, association or endorsement of goods or services (‘false association’ or ‘false designation of origin’); and (a)(1)(B) covers false advertising. Plaintiffs didn’t specify, but did call their claim one for “reverse palming off.” This, the court concluded, occurs “almost exclusively” under (a)(1)(A). In addition, plaintiffs failed to allege that the reverse passing off occurred in commercial advertising or promotion, as required for (a)(1)(B). The court declined to credit plaintiffs’ “revisionist history” in which they’d implicitly alleged that the Architectural Digest article was commercial advertising. Nonetheless, it analyzed the false advertising claim on the merits, as plaintiffs desired (plaintiffs having presumably realized their unsurmountable Dastar problem with respect to (a)(1)(A)).

The unsurmountable problem with a false advertising claim here was different: commercial advertising or promotion. The Architectural Digest article was not commercial speech. It proposed no commercial transaction. Solis-Betancourt didn’t pay AD for the article. Though a partner in Solis-Betancourt proposed that AD do an article on the house, and Solis-Betancourt may have hoped to attract clients (and may have succeeded in doing so) as a result of the article, that’s not enough to make the article commercial speech. The court quoted Croton Watch Co., Inc. v. National Jeweler, 2006 WL 2254818 (S.D.N.Y. Aug.7, 2006): “A plaintiff cannot adequately plead a violation of the Lanham Act by simply alleging that defendant caused a journalist to write the article, the content of which plaintiff finds objectionable.”