Friday, August 07, 2009

IPSC: Mixed IP

Zvi Rosen

The Unwanted Copyrights: Commercial Prints and Labels 1874 - 1940

This is a neat bit of history that probably benefits from reading the paper, given compressed presentation times. Labels before 1870 were registered as copyrights. Then Congress was persuaded to move registration of prints and labels to the PTO, but the law created huge problems. Removed from copyright law explicitly, but not explicitly put back. Were labels and prints subject to formalities? If they weren’t copyrights, what were prints and labels? The act said, definitionally, that they’d be registered not as trademarks. Wasn’t clear that a label could be registered if it had a label on it. Patent Office made things even worse by refusing to register commercial prints (like ad signs) 1874-1893.

Cases held that the formalities were still required, so people lost copyright protection. Then the TM Cases held the federal TM law unconstitutional: so was label protection unconstitutional?

In the end, the SCt ruled that copyright wasn’t the right subject matter for (uncreative) labels. Label registrations came to a complete halt, though the Copyright Office recognized in theory that artful enough labels were registrable. Continuing confusion over whether labels could have trademarks—and of course most labels did have trademarks on them. When the Commissioner finally reversed course on this point, allowing registration of labels with TMs on them, there was a flood of registrations.

1909 Act did not explicitly repeal the separate registration provisions, so confusion continued. After several tries, Rep. Lanham managed to pass a repeal that became effective in 1940. The label files are now at the National Archives.

1874 Act represented an attempt to deal with mixed IP. People thought that copyright was limited to artistic productions. The label law was partially a result of that, but also a result of a constitutional theory.

Pam Samuelson: Interested in this from the Baker v. Selden tradition. She’s read the label cases in connection with that case. Her impression was that courts were resisting label copyright because they were concerned that copyright in the label would be used to thwart competition for the attached goods. Part of what Baker did was to say that exclusive rights to products had to come from patent system; copyright is about explanation/illustration. The time period you’re talking about saw a refinement of conceptions of the proper subject matter/boundaries of copyright, patent, and TM. That also helps to explain why some of the early decisions were also hostile to copyright in commercial ads—ads were often just a reproduction of the label.

A: Yes. Another consideration: Copyright was $1, TMs were a lot more expensive at $25—a lot of suspicion that people were trying to avoid paying registration fees.

Samuelson: Courts were more focused on the competition issue; the registering entity may have been concerned about fee channeling, but that doesn’t explain what was going on with the courts. Bently & Sherman on the making of modern IP law has a good treatment of the historical conception of IP—we today rarely understand just how muddy the conceptual structure was during 17th-19th centuries.

A: That muddiness is part of the article he’s writing—nobody had any idea what these things were. Judges showed lots of confusion.

Rebecca Tushnet

Uncanny Valley: Mixed Media and the Law

Introductory question: why is nonrepresentational art protected by the First Amendment? I hope to suggest that the reason this is a tough question is connected to the reason that it is hard for courts to explain why one image infringes, or does not infringe, another.

Our IP doctrines, which have largely rejected ideas that there are fundamental distinctions between media—ontological categories, in the words of Justice Breyer—nonetheless have trouble moving from medium to medium. Easy to see cases involving both text and image, because courts have theories about texts and theories about images that are incompatible.

Not surprising because IP does no better with aesthetic theories of how different media work than the law in general, and law does no better than society at large. Moreover, core copyright and trademark doctrines developed during the early 20th century, when legal culture and visual culture didn’t much overlap. Quick examples: idea/expression—the core test or non-test was articulated by Learned Hand with respect to the text of a play. But now we try to apply it to the appearance of live-action puppets like HR Pufnstuf, and it doesn’t work well. You can’t remove layers as in Photoshop to get rid of the ideas, nor can you even use words to describe the pictures in useful ways as courts have tried to do with written works. From trademark, the Abercrombie spectrum: self consciously about words; courts try to analogize when dealing with other visual symbols or sounds, or throw up their hands and say never mind, secondary meaning is required.

Those are examples of collapse between media that don’t work well, but there are also instances in which lay theories of differences between media intervene, almost out of the blue—when a court says that images are different, the statements tend to have an “everybody knows” flavor about them, which makes the underlying assumptions very hard to interrogate. So images sometimes get treated as mystical in their operation on human minds.

Thus in Whorley, a recent 4th Circuit child porn case, the dissenter objected that text-only emails shouldn’t be prosecutable as obscene because of First Amendment principles, but reasoned separately on images, relying on statutory interpretation to exclude anime from the scope of the statute. The dissenter said, “[t]he ability to consider and transmit thoughts and ideas through the medium of the written word is an attribute unique to humans.” Of course this is also true of representational art!

“Imagining” and “fantasy” were words the dissent used about the texts, but those terms are equally applicable to drawings; giving them different levels of First Amendment protection needs some other justification. Visual art, I suspect, seems to many people be more than fantasy, closer to an act.

Consider the famous illustration: Magritte’s Ceci n'est pas une pipe. Show someone an image of that painting and ask what it is. At the very least, we would expect a child to say “pipe,” not “picture or a pipe,” and readily accept the former answer from an adult as well.

Thus: The image is the thing. But the word is only the sign of the thing. Contrast Potter Stewart’s definition of obscenity: “I know it when I see it” to Brandeis defending the value of free speech: “Men feared witches and burnt women.” Sight is trustworthy; interpretation of words is not. (Though what burning women has to do with suppressing speech remains somewhat unclear.) So, in McEwen, the Australian case about Simpsons porn, the judge concluded that “all persons depicted in written works are necessarily imaginary” because their images exist only in the reader’s mind, whereas an image can present an actual person or an imaginary one. This collapses images of people (whether on paper or in the viewer’s mind) into the real people themselves.

This magic-spell quality of images is a major component of obscenity law, but it’s also apparent in copyright discussions of substantial similarity. Substantial similarity in the visual field just is; there is no way to break it down or describe it. Similar things happen in music, but it seems that courts are much more willing to accept testimony about musical components than about visual components. And this is related to the second reaction: treating images as, fundamentally, less important than words, because their impact is gestalt-like, irreducible to words. Again, obscenity is a good example, but I think copyright’s willingness to tell artists to express themselves differently is also implicated here: there’s no sense that there is an expressive harm in telling an artist that s/he has to do something significantly different from Steinberg’s New Yorker’s eye view of the world.

Related problem in copyright has to do with performance: Tina Fey & William Shatner delivering Sarah Palin’s words verbatim: widely recognized as having a parodic as well as satirical point. But why? The effect is intangible, irreducible to words. (It’s about the body, the changes created by having different bodies use the same words.) Performance is the stepchild of real copyrights, formally so in many other countries. Nathan Burkan, attempting to prove copyright infringement in Charlie Chaplin’s performance, insisted that only playing the film could show what elements of Chaplin’s performance were protectable, because words couldn’t describe him.

Trademark has its own issues with images: what is confusing similarity? The TTAB throws up its hands: can’t be explained, can only be perceived. Side note: trademark really gets confused when it comes to incontestability of a descriptive term that was registered in a particular form, like a particular font—do you focus on the similarity to the mark as specifically displayed, or do you look at the similarity of the word component of the mark, which it’s possible to abstract from the mark? Second Circuit and the Ninth Circuit have divided on this.

Final set of examples: false advertising law.

Think of standard persuasive advertising. David Vaver has put it this way: “advertisers use images rather than words to convey … messages [that would be inane if stated in words, like ‘if you use this product, attractive women will be attractive to you’]”: images, like hips, don’t lie. The viewer generates the message, to the extent that there is a message, for herself. A picture may be worth a thousand words, but those words differ for each person.

S.C. Johnson & Son, Inc. v. Clorox Co., the defendant’s humorous ads showed two animated goldfish suspended in upside-down plastic storage bags, one safe and sound in its Glad-Lock bag and the other threatened by a leaky Ziploc

Found: false because most bags didn’t leak even though Ziploc leaked at a greater rate than Glad-Lock, and at fairly high percentages too—over 1/3, though they didn’t leak all that fast.

What did the unmoving, single image convey about leakage rates or frequency? How can we know?

Time Warner Cable, Inc. v. DIRECTV, Inc.—another kind of static, shown on one TV allegedly illustrating the difference between cable quality and DirecTV quality

Standard definitions of puffery as broad, unfalsifiable claims, which depend on words, couldn’t be applied because images, unlike words, “cannot be vague or broad,” are generally “‘specific and measurable,’ and can therefore ‘be proven either true or false.”’ The court of appeals held that no reasonable consumer could mistake the heavily pixilated image in DirecTV’s ad for a distorted television screen because the distortion more closely resembled a photograph that was enlarged too much.

Notice the disconnect here: falsifiability and believability are different, but the court says images are falsifiable, so we’ll look at believability.

If it wasn’t believable, why did DirecTV use it? More to the point, why wasn’t the leaking bag in the Glad-Lock case also something on which no reasonable consumer would rely? What would it take to falsify the image in the Glad-Lock case? Underlying theoretical incoherence about what it means for an image to be false: back to Magritte.

The persistent problem: do we need to train judges to be art critics? We expect them to analyze product design in tort cases and understand complex economic theories. Paradoxically the ease of naïve interpretations of images may fool us into thinking that no cultural or aesthetic theory is required to understand claims about the legal effect of images.

Could write a similar paper about music: writing about music is like dancing about architecture. So what are the solutions? Experts don’t seem to do the trick in music.

Wendy Gordon: why is there 1A protection for nonrepresentational art?

I tried to answer this, but it’s really hard because it’s almost, by definition, impossible to articulate what the message of such art is; on the other hand, we tend to feel that it has such a message, people have gone to jail for it, etc. Also through later discussion I’ve been convinced that “representational” is not a useful term in this context, especially given that I want to focus on IP.

Zahr Stauffer: can we trust what we see? We associate “trick” with photography—see also the verb “to photoshop.” We need aesthetic theories to decode images—appropriation art caselaw tracks learning curve. So judges can be trained.

Marc Greenberg

Comics, Courts and Controversy: The Cases of the Comic Book Legal Defense Fund

Parody and obscenity have been drivers of CBLDF cases. Example: Free Comic Book Day, with excerpt from The Salon, set in Paris 1907 with Pablo Picasso discovering a stash of secret blue absinthe, which allows viewers to move in and out of paintings; it may allow them to solve the problem of a monster coming out of paintings and killing modernist artists. One of the pages has full-frontal Picasso, interrupted while masturbating—you can see his penis. One kid received the adult sampler by accident and Lee (the bookstore owner) apologized, but he was arrested and charged with distributing obscenity to a minor.

CBLDF got involved. Exposure: 21 years in jail. May 2005: filed motion to dismiss felony charges; prosecution voluntarily dropped the felony counts and two misdemeanor counts. On the eve of trial the prosecution dismisses all the counts and refiles based on the fact that they’d named the wrong kid. Then the prosecution dismissed because of failure to empanel a grand jury. Nov. 2007: the prosecution gets underway; motion in limine to exclude prior conviction for selling adult comic to adult, which was granted. Prosecution immediately mentions the prior conviction; mistrial granted. Finally, in 2008, charges dropped. This is why we need CBLDF.

Latest battle: Christopher Handley and the PROTECT Act: big anime/manga collector. Got mail from Japan. A postal inspector opened it and he was arrested for obscenity. Often young girls in manga are depicted being attacked by monsters: no real people involved, but images. Court throws out two portions of the PROTECT Act but upholds two sections, allowing the case to go to trial.

Stanley v. Georgia issue: it’s not illegal to possess this material in your own home, but distribution can be made illegal. So how does the material get to your home? CBLDF felt that Handley had some good arguments, but in May he accepted a plea bargain: pled guilty to possession of obscene material featuring the sexual abuse of children and mailing obscene material—faces a long prison sentences, a big fine, and a lot of supervised release.

Concern: high sentences coerce defendants with valid First Amendment defenses to plead guilty. When no actual children are involved, is this acceptable? Why did Lee hang in there? Answer: he was ornery and angry—also he was a paralegal. What’s the value of criminalizing this kind of material? What if we thought about civil sanctions—fines, loss of business—instead?

Is there literature about a cause/effect relationship between criminalizing obscenity and deterrence/reduction in frequency?

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