Challenges to "natural"/"organic" labels survive motion to dismiss

Jones v. ConAgra Foods, Inc., 2012 WL 6569393 (N.D. Cal.)

Plaintiffs filed a class action suit against ConAgra alleging that its website and numerous products, including PAM cooking spray, Hunt's canned tomato products, and Swiss Miss cocoa, contain deceptive and misleading labeling information.  The allegedly deceptive practices include: labeling food products as 100% natural, when they contain petrochemicals or chemical preservatives, synthetic chemicals, added artificial color and other artificial ingredients; labeling food products as “organic” or “certified organic,” when they contain disqualifying ingredients; falsely representing food products to be “free of artificial ingredients and preservatives;” making unlawful nutrient content claims; falsely representing foods to be fresh or have a “fresh taste;” and making unlawful health claims.  Plaintiffs alleged reasonable reliance and actual deception, such that they wouldn’t have bought the products absent the mislabeling, and paid an unwarranted premium for them.  They alleged the usual California claims and violation of the Magnuson-Moss Act.

ConAgra argued that the claims were preempted by the Organic Foods Product Act, the National Labeling and Education Act, and the FDCA.  First, as to the organic labeling claims, In re Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation, 621 F.3d 781 (8th Cir. 2010), found claims that retailers were selling a product as organic when it wasn’t in fact organic were preempted by OFPA.  But that was when the source had organic certification under OFPA.  OFPA preempts state certification requirements, but doesn’t preempt broadly.  The claims here were exactly the type of state claims that other courts have said would be preserved.  California law adopts OFPA standards, so claims based on violation of those standards aren’t conflict preempted.  Merely adding another source of enforcement doesn’t count as an additional state-law requirement.

Similarly, plaintiffs’ claims weren’t preempted by the NLEA to the extent that state law only paralleled or mirrored the relevant federal requirements.  This preserved their antioxidant and other ingredient list/propellant claims, since California has incorporated the NLEA by reference. Some of the claims raised factual disputes: ConAgra argued that plaintiffs’ rosemary extract claims were preempted because they sought to require rosemary extract to be labeled as a preservative, when the relevant regulation states that chemical preservatives do not include “spices, or oils extracted from spices.”  However, plaintiffs argued that rosemary extract was neither a spice nor an oil extracted from a spice, and that created a factual dispute.  Likewise, ConAgra argued that plaintiffs’ claims that it should have identified citric acid and calcium chloride as “preservatives” were preempted because the FDA has never required those ingredients to be identified as such. But the federal regulations require a food label to disclose ingredients being used as preservatives, and the complaint alleged that was happening in this case.

ConAgra then tried the primary jurisdiction doctrine, but no dice: ConAgra didn’t show that there was a need for uniformity or for the FDA’s expertise.  As for “natural” claims, “various parties have repeatedly asked the FDA to adopt formal rulemaking to define the word natural and the FDA has declined to do so because it is not a priority and the FDA has limited resources. Further, when the FDA considered the term ‘natural,’ ‘it was aware of and had reviewed state regulation of the use of the term, yet it made no mention of the need for uniformity.’”  The continued inaction on the term implies that the FDA doesn’t believe that uniformity is required.  (In a footnote, the court distinguished Astiana v. The Hain Celestial Group, Inc., because that was about cosmetics.)

“Notwithstanding Defendant's discussion at the motion hearing of preservatives and firming agents, the Court concludes that this case is far less about science than it is about whether a label is misleading.”  Deceptiveness can be resolved by courts.

ConAgra then argued that plaintiffs failed to state a claim.  Generally, deceptiveness is a question of fact, but courts can sometimes consider the viability of a claim by reviewing the product packaging.  The court found that plaintiffs successfully pled falsity as to the antioxidant claims.  They alleged that ConAgra’s improper use of the term falsely asserted that the products met the minimum nutritional thresholds for such claims.  Also, the “freshness” claims presented factual questions that couldn’t be addressed on a motion to dismiss. However, plaintiffs didn’t sufficiently allege that ConAgra’s website health claims were false or that a reasonable consumer would be deceived by them, only that they were in fact deceived.

ConAgra argued that plaintiffs couldn’t allege reliance on the “natural” claims because the allegedly unnatural claims were disclosed in the ingredient list.  The Ninth Circuit has already rejected this argument:

We disagree ... that reasonable consumers should be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.... We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.

In addition, plaintiffs alleged that the ingredients themselves were mislabeled.

ConAgra then argued that the FDA has recently stated that citric acid is natural, defeating plaintiffs’ argument that products containing it and calcium chloride weren’t “natural.”  But that ignored the calcium chloride aspect, and also the FDA’s letter said that “naturally-derived citric acid” was consistent with labeling a product “natural,” but there wasn’t evidence that ConAgra’s products included the permissible citric acid.

Swiss Miss stated that “Natural Antioxidants Are Found in Cocoa,” while Hunt's tomato products stated that “The Antioxidants Vitamin C & Lycopene are found naturally in tomatoes.”  Plaintiffs alleged that they were deceived by the implicit misrepresentation that the tomato and cocoa products that they were purchasing met the minimum nutritional threshold to make such antioxidant claims.  ConAgra argued that reasonable consumers wouldn’t know what those minimum thresholds were, since that’s a matter of detailed FDA regulation.  But this wasn’t a case where the court could conclude that as a matter of law that the antioxidant claims weren’t deceptive—perhaps because, while consumers might not know detailed numbers, they would expect ConAgra products to comply with the rules, meaning that they’d expect that antioxidant claims to be similar to those found on other (compliant) products.

Then, ConAgra argued that plaintiffs didn’t satisfy Rule 9(b) because they didn’t allege specific dates of purchase.  That’s not required because plaintiffs alleged that they’d bought the products through the class period, except with respect to PAM products where the label didn’t make the same representation throughout the class period; ConAgra recently changed the label to include “(preservative)” after rosemary extract.  Also, the plaintiffs failed to provide details of exactly which products they purchased: they alleged that they bought “Hunt's Petite Diced Tomatoes in a 14.5 oz can and other Hunt's canned tomato products such as its tomato paste in an 8 oz. can,” but “other Hunt’s canned tomato products” wasn’t specific enough.  Nor did they plead with specificity which Hunt’s products contained citric acid and/or calcium chloride, except for the Diced Tomatoes.  They didn’t allege whether the Hunt's tomato paste in an 8 oz. can that they purchased contained only citric acid, or both citric acid and calcium chloride. “This information is necessary because Defendant has submitted a copy of labels from Hunt's tomato paste and Hunt's tomato sauce that do not contain calcium chloride.”  These claims were dismissed with leave to amend.

The warranty claims were dismissed without leave to amend.  Product descriptions, such as “all natural” labels, do not constitute warranties against a product defect.  These products were also excluded as “consumables” under California’s Song-Beverly Act.

Casual empiricism replaces casual historicism

Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. Florida Priory of Knights Hospitallers of Sovereign Order of Saint John of Jerusalem, Knights of Malta, Ecumenical Order, --- F.3d ----, 2012 WL 6582565 (11^th Cir.)

The court of appeals sua sponte vacated its original opinion.  What I said then:

Quick review of complicated terminology: the plaintiff Order “is a religious order of the Roman Catholic Church that undertakes charitable work internationally.”  The defendant Florida Priory is an ecumenical charitable organization, associated with a parent (the Ecumenical Order) incorporated in the US in 1911.  The infringement claim is obvious; the false advertising claim is related, as the Order alleged that the Florida Priory, through its parent, falsely claimed a historic affiliation with Plaintiff Order going back to the eleventh century.  I won’t recite the history according to the parties; I’m going to skip to the legal analysis, though it should be remembered that the analysis depends in significant part on the testimony about the history.  The Order’s historical testimony came largely from its representative Geoffrey Gamble and Dr. Theresa Vann, a professor of history at the College of St. Benedict/St. John’s University specializing in medieval history.  The Florida Priory’s historical testimony came largely from the current Prince Grand Master of the parent Ecumenical Order, Nicholas Papanicolaou.  His account diverged around 1798.

The court of appeals didn’t change its earlier reasoning: the district court erred in finding fraud on the PTO and invalidating certain registrations, including word marks, because the declarant didn’t have subjective intent to defraud, even if the organization as a whole knew of the existence of the Ecumenical Order and its potentially conflicting claims.  The court also reversed the dismissal of the trademark claims, because the district court erred in focusing solely on visual dissimilarities in the design elements of the marks.

The false advertising claim was where the analysis changed.  The Plaintiff Order claimed false advertising because, it contended, the Florida Priory didn’t share any history with and had no connection to the historic Order of Malta.  “In assessing this claim, the district court was faced with the monumental task of adjudicating the accuracy of two competing versions of late-eighteenth-to-early-nineteenth century history.”  Plaintiff Order’s witnesses testified that there had never been a split in its organization.  The Florida Priory’s witnesses testified that, when Napoleon invaded Malta in 1798, some Knights of Malta fled to Russia, where the original Order of Malta essentially ceased to exist, but related non-Catholic and Catholic Orders emerged.

The district court essentially agreed with the Florida Priory.  The Plaintiff Order argued that the court got the history wrong because it relied on the testimony of Papanicolaou, who did not hold himself out to be an expert in history, over the testimonies of the Plaintiff Order’s witnesses, only one of whom was qualified as an expert in the history of the Order of Malta.  This time, the court of appeals found that the district court abused its discretion in considering Papanicolaou’s testimony, but that the error was harmless.

It was abuse of discretion to permit a lay witness to testify about historical matters.  But the district court made two discrete factual determinations, each of which independently supported its holding: first, that the two organizations shared a history until 1798, and second, that the Florida Priory expressly associated itself with the Ecumenical Order, a non-Catholic organization that couldn’t cause any confusion.  The second finding was sufficient, because it meant that the alleged deception was unlikely to influence any purchasing decision (though the court didn’t indicate what the relevant purchasing decision would be). “The trial record abounds with references to The Florida Priory's interdenominational nature. And of course, by its very name, the Ecumenical Order is an interdenominational organization.”  (Implicit here seems to be a finding that people would only want to buy [whatever] from the Plaintiff Order, not the Ecumenical Order, on grounds of Catholicism, and that centuries-long continuity with the pre-1798 group isn’t important to selling whatever it is that the Ecumenical Order has to sell.  This is the casual empiricism I mentioned in the headline.)

The state-law trademark claims were also reversed.

Reading List: The Late Age of Print

Ted Striphas, The Late Age of Print: Everyday Book Culture from Consumerism to Control (2012)

The basic message: the present state of books and how we got here is complicated, but it’s essentially about control (and somewhat less about resistance to that control) by capitalist structures seeking to move all surplus away from the consumer.  Striphas argues that book publishing was on the forefront of large-scale rationalization and standardization in mass production.  Among other things, printers were among the first to adopt standard hourly wages, and books were mass-marketed Christmas presents when commercialized Christmas was new; publishers were among the first to adopt universal product codes in the form of the ISBN.

Along the way, booksellers touted physical accumulation of books as a class marker, which meant a proliferation of copies that latterly has come to be seen as “hindering the task of expanding capitalist accumulation” as compared to licensing.  Even in the 1930s, publishers didn’t like that people could lend or give away books, and PR specialist Edward Bernays searched for a pejorative term for “the book borrower, the wretch who raised hell with book sales and deprived authors of earned royalties” (in the words of Bernays’ institute).  I particularly liked “greader,” though the winner was “book sneak.”  This was even less successful than the more recent defining down of “piracy,” but e-books now appear to offer publishers their dreamed-of state of complete control, at least if no one violates the DMCA.

Modern ideologies of writing and reading both require and conflict with mass-marketization: “Many publishers and booksellers have persisted in the belief that books ought to sell primarily on the basis of the qualities particular to individual titles, and that relying on exogenous factors to move them somehow diminishes the worth of these goods. Yet the rapid growth and extraordinary success of superstores reveal just how much built environments and other factors related yet extrinsic to specific titles can make or break the selling of books and bookselling.…”  Superstores then led to labor force downsizing behind the scenes, before Amazon even entered the field with its even greater speedups and pressure on labor. 

Striphas also considers the way in which at least one television program promoted book culture: Oprah’s book club.  Functioning as a brand, the book club designation acted as an assurance of fitness for purpose that convinced otherwise reluctant customers that Oprah’s books were likely to reward the investment in finding the book and carving out time to read—material barriers that many intellectuals, used to reading constantly, downplay.  In language that Landes and Posner would recognize, Striphas contends that “Branding permits publishing firms partially to sidestep the time-consuming, costly, and often haphazard work of identifying or creating a unique audience for each and every title in their catalogs.”   Oprah also explicitly gave suggestions to women about how to fit in reading time; here Striphas references Janice Radway’s work on how romance reading served as an assertion of the self in otherwise other-directed lives.  The content of Oprah’s books is therefore strongly linked to their functions within readers’ lives: a book is “valuable to the extent that it demonstrates a clear connection with life, or that it resonates with their everyday interests, personal experiences, and concerns.”  Thus Jonathan Franzen’s initial rejection of his selection, because he was a snob, didn’t pose an existential threat to the book club, whereas James Frey’s dissimulations did.

As to Franzen, Striphas argues that his dispute with Oprah was really about attribution and branding: His publisher put the book back in print when it was selected, with a new edition featuring Oprah’s insignia prominently on the cover.  Franzen felt that this was a violation of the tradition that hardcover fiction was free of advertising, and that the logo implied “corporate ownership” of his work.  As Striphas notes, though, the fact that Franzen’s publisher was a giant media company didn’t seem to bother him—one example of the way in which authorial preferences/incentives are a lot more complicated than the usual rhetoric surrounding moral rights allows.

Striphas then turns to Harry Potter as global phenomenon, focusing on the extensive, technologically enabled precautions the publishers took to release the later books simultaneously worldwide and their struggles against unauthorized versions in various countries.  While simultaneous release seems like an artifact of globalization, Striphas points out that the purpose of the release was precisely to avoid people in one country from getting their copies from another country; the endeavor was aimed at maintaining territorial distinctions so that each publisher could profit to the maximum within its contractually guaranteed footprint.  The massive scale of the simultaneous release, and its inevitable failures, brought IP and even security and logistics to the forefront of the Harry Potter phenomenon, such that newspapers were reporting on the embargo (since they didn’t have review copies to review). 

Fans were recruited to go along with the ideology of control:  “Those who obtained and subsequently returned early Potter book releases have tended to do so in good faith, believing that their principled acts uphold egalitarian conditions of access to stories that have enthralled millions of readers.”  He doesn’t think that’s wrong, even though they serve the publishers’ own purposes, “laboring to produce the very conditions of scarcity that, from an economic standpoint, might well be contrary to their own interests.”  Striphas only considers, however, commercial appropriations such as purported Chinese sequels and Tanya Grotter; he doesn’t discuss transformative fandom except to mention a German translation group that attempted to get the books translated into German faster than the commercial publishers could.  When it comes to commercial, cross-cultural reworkings, he argues,

Bricolage, indigenization, parody, and other forms of appropriation are frequently perceived by Western journalists, intellectual property rights holders, and others to be insufficiently or inappropriately transfigurative acts. This perception, in turn, places those who have assumed the task of development in an impossible position. On the one hand, they’re charged with repeating foreign values, styles, and culture, while, on the other, they are condemned for having done so under existing economic and infrastructural conditions. Despite their complaints, Western authorities tend not to admit their part—our part—in both creating and sustaining the conditions leading to book piracy and other forms of intellectual property piracy on the world scene.

All these examples lead Striphas to conclude that books are one site of struggle over a transition to “controlled consumption” in which large producers have the power to dictate what consumers can do and what they must pay, diminishing their control from the earlier “consumers’ republic” despite a continued rhetoric of choice.  This transition is contested, but in my view it sure looks pretty good for the producers right now.  Striphas sometimes overgeneralizes—does the experience of one Barnes & Noble in Durham really tell us a lot about the relationship between big box bookstores and larger urban/racial equity issues?—and sometimes just leaves things at “it’s complicated,” but on the microlevel there is much to appreciate about the way the book connects various threads that together bind up books.

Not that this has ever happened to me

Major media outlet receives review copy; along with the review, invites online readers to read an excerpt; it has permission to offer an excerpt.  Through inadvertence, though the file is called “excerpt.pdf,” it is in fact the entire book.  (Assume the inadvertence is on the part of the major media outlet, not the publisher, though it could easily be the latter, especially if the publisher was given the choice of what excerpt it wanted to share.)  The media outlet posts its review online, with the not-excerpt hosted on its servers; now the book is out in the open.  Given strict liability, is the media outlet liable for copyright infringement?  What happens to the reader who only wanted to read an excerpt in order to decide whether to purchase the full book but downloaded what turned out to be the full book—is she an infringer?  Ignorance is no excuse, and the download was volitional, but how about mistake of fact?  Can we distinguish between “I mistakenly think my conduct is authorized” (whether by operation of law or by a license) and “I mistakenly think my conduct will result in a different copy than it does”?  Separately: If the publisher is at least partly responsible, does the author have a cause of action against the publisher for something like waste?

Merely alleging use for commercial purposes insufficient for TM claim

E Clampus Vitus v. Steiner, 2012 WL 6608612 (E.D. Cal.)

Plaintiff ECV sued defendants for trademark infringement/unfair competition based on defendants’ alleged misuse of ECV’s trademarks.  Defendants moved to strike and dismiss the complaint.  The anti-SLAPP motion was denied, but the motion to dismiss was granted.

ECV alleged that it had valid marks, including registrations, for E Clampus Vitus, ECV, and Clampers marks.  The marks were used to indicate membership in its fraternal organization and for related purposes.  ECV also used them for goods such as pins, hats, and shirts.

ECV alleged that defendants “participated in the 2010 City of Woodland Christmas parade as a member of the Joseph Zumwalt Chapter,” and that they used ECV’s marks “for commercial purposes” and “caused confusion by using and alleging that they had the right to use the trademark rights.”  They also allegedly conducted a March 2011 event called the 4–SKIN DOINS, “in which the trademarks of Plaintiff were used for commercial purposes,” and participated in the annual Georgetown Founders Day Celebration using ECV’s marks “for commercial purposes, causing public confusion, and alleging that they had the right to use E Clampus Vitus, ECV, and Clampers.”  The sale of hot dogs at Founders Day in the name of ECV Georgetown allegedly infringed ECV’s marks.  Further, they alleged that defendants “will be auctioning off a motorcycle under the name Joseph Zumwalt ECV.”

The defendants moved to dismiss under the anti-SLAPP statute, arguing that the gravamen of the complaint was that “defendants marched together in a parade as Clampers, engaged in various charitable works together as Clampers, and held themselves out publicly to be Clampers .... This is unequivocally protected speech the whole purpose of which is to raise public awareness and financial assistance for community and social issues and needs.”  But the court decided that the statements/conduct at issue didn’t concern a “public issue” or “issue of public interest” as required by the relevant provisions of the anti-SLAPP statute.  An issue that is of interest only to a definable portion of the public and that’s not in the context of an ongoing controversy, dispute or discussion isn’t enough to trigger the statute.  The issue here was only of interest to a definable portion of the public—members and/or supporters of ECV—and defendants didn’t allege that their conduct occurred in the context of an ongoing controversy, dispute, or discussion.

However, ECV’s complaint flunked the pleading standards.  Defendants argued that ECV failed to plead any specific facts indicating likely confusion according to the multifactor confusion test.  Merely alleging that the plaintiff had a registered mark and that the defendant used it with respect to goods and services not covered by the registration was insufficient to plead that confusion was likely.  Allegations that defendants used the “trademarks of Plaintiff” for “commercial purposes” were conclusory and didn’t indicate which marks were used or the manner in which defendants used them. As to the alleged sale of hot dogs and auction of a motorcycle, ECV didn’t allege sufficient facts from which a reasonable inference could be drawn that these items were related to ECV’s pins, shirts, and headgear that Plaintiff allegedly sells.  Thus, the state and federal trademark infringement/unfair competition claims were dismissed.

As for the state law false advertising claim under California Business & Professions Code section 17500, it was subject to Rule 9(b).  The allegations that “Defendants have further violated [section 17500], committing false advertising, by selling goods and services, misrepresenting their identity, and signing up new ‘members', who think they are joining E Clampus Vitus, but in actuality, are not” were too conclusory to provide the specificity required by Rule 9(b).  They didn’t identify any allegedly false statements or state how any such statement was misleading.   Complaint dismissed with leave to amend.

The hazards of off-label promotion

An off-label medical device promotion that killed.  The story points out that, atypically, patients were denied even the appearance of informed consent—though one has to wonder whether many patients can do more than go along with their doctors’ advice even when they know the use is off-label.

One particularly interesting portion from the Forbes piece, which seems to be online only:

The culture of orthopedic surgeons is particularly aggressive. Predominantly male, "orthopods" are the jocks of the surgical world. Sales representatives tell stories of doctors playing loud rock music in the operating room and throwing instruments at the wall when they get frustrated. Several surgeons tell Fortune they simply don't have time to pore over labels. Lambert offers a blunt appraisal: "'Off-label' is not at all a pejorative term -- it's almost the opposite. Reading the label is for people who read labels."

Surgeons don't always listen to the FDA, but they do heed the young sales representatives who bring them devices and routinely watch them operate. "It sounds ridiculous, because here's a guy who went to medical school and did his residency, and he's listening to some guy in the back of the room," says one former Synthes salesperson. Another adds: "It's not uncommon to have a surgeon with a drill in his hand, about to drill a hole, looking over his shoulder at you saying, 'Is this right?'"

The story also provides insights into why the market doesn’t constrain false or unproven claims, despite huge potential back-end liability in cases like this one: firms are made of people, and individual people both have different incentives than the firm as a whole and, not unrelatedly, deep capacities to read evidence optimistically even as patients are dying.  Indeed, one of two case examples in a brochure given to surgeons promoting the product came from a woman who’d died on the operating table—though the brochure didn’t say that.

One difference between marketers and trademark lawyers

Marketers like ubiquity and recognize that top-of-mind status is not the same as true genericity.  Bill Morris, Explosion of Brands and Erosion of Soul:

[T]he Independence Bowl became the Poulan/Weed Eater Independence Bowl, lovingly known as the Weed Whacker Bowl. ... “Over all, it was a net benefit,” Evin Ellis, the company’s marketing communications manager, [said]. “We consider Weed Eater the Kleenex of weed whacking.” . . . Corporations are now willing to shell out up to $5 million a year to have their name attached to a college football bowl game because they want the brand to become so common and recognizable that it enters the language as the thing itself. The dream is to become ... generic.

Last ellipsis in original.  See also:

 

Trademark question of the day

This truck sign seemed a little familiar:

What do you think the Washington Capitals might say?

Bigger end of year news: copyright reform

The UK government’s copyright modernization plans: “Modernising copyright - a modern, robust and flexible framework.”  Of particular note to me: like everyone sensible, and like the US before Justice Souter sent us on an unfortunate detour, the UK government proposes to treat parody, satire and pastiche together.  Still, it’s a far cry from full-fledged transformativeness, though there’s separate treatment for data mining by noncommercial entities and several other important exceptions.  The UK also proposes to prevent contracts from overriding these rights to the extent allowed by EU law.  Also, while the US tries to keep international obligations on disability limited to print, the UK government proposes to offer exceptions for every form of work and for every form of disability, because that’s the right thing to do.

End of year news

I am 1/2 of one of the top ten most influential fans of 2012, according to the Daily Dot.

Transformation, commerce, and medium

Here's an art show full of visual work inspired by premium cable.  You can buy prints etc. for varying three-figure sums.  More traditional fan art, too, is often sold at fan conventions.  And I don't expect these folks to get sued.  Why is the anti-commercialization norm so strong with fan fiction and video, but not with fan art, and why have copyright owners seemingly tolerated so much more commercialization in the visual field?  (This is far from the only example of transformative visual works for sale I've seen; it's just the one I saw today.)  Is it the lingering mystique of the unique art object, such that the "original" drawing/painting/etc. seems to have so much more labor value than the "original" copy of a text or vid that a sale of the former is justified?

Also there is no accounting for taste; while my kindergartender couldn't produce any of these, I think my friends do far better work, and for free.  Though I liked this Alternate Ending exhibit better, alternate endings being a staple of traditional fanworks, it does seem to me that traditional fan cultures focus more on classic aesthetics--creating beautiful art objects that are also transformative works--than these producers.  Intriguingly, the artist who in my opinion does the most polished work in the second exhibit has a Kickstarter for a poster of every Wile E. Coyote ACME purchase during the classic cartoons, and its more widespread success--these ACME posters aren't limited editions of small numbers, like most of the works in the exhibits linked above--suggests that the current art world aesthetic has something to do with avoiding mass appeal.  That's not a new insight, but in the context of transformative works specifically I wonder: does beauty make it harder to see transformativeness, or easier?  I know in the DMCA hearings we constantly had to say that it was important to vidders as artists to convey their messages in aesthetically rich ways, and some people seemed to have trouble hearing that, even though we ordinarily accept that attractive, seductive, well-put-together art is more effective art.

Of course, I support bad transformative works too!  Quality isn't the standard for transformativeness; also you don't get good transformative works without a lot of space for bad ones.  But when classical portraiture techniques risk liability for seeming too exploitative of the subject, there's something weird going on about the intersection of art and transformation.

I predict, therefore I am copyrightable

A brief note on two copyright cases from the last week, a comparison of which suggests that copyright doctrine has fetishized quantifiability over other forms of knowledge-making.  In one, a court (rightly) denies protection to huge amounts of factual matter, while in the other, a court (wrongly) grants protection to single letter grades because they’re the product of skill and judgment.  Eric Goldman has more to say about National Football Scouting, Inc. v. Rang (W.D. Wash. Dec. 13, 2012), but the money quote from the opinion is: “National’s Player Grades, unlike telephone numbers, are not facts; they are ‘compilations of data chosen and weighed with creativity and judgment.’ The Player Grades represent National’s opinion, based on its data and its expertise, of a player’s likely success in the NFL.”  Justin Hughes on microworks and James Grimmelmann on rankings have written relevantly about what’s wrong with this statement as an endpoint and not a beginning of a real analysis of whether there’s enough copyrightable output regardless of the creativity that went into the grade.

Contrast Effie Film, LLC v. Pomerance (S.D.N.Y. Dec. 18, 2012), which granted summary judgment to the declaratory judgment plaintiff  because any similarities between the parties’ screenplays came from their basis in the same historical events.  Here’s what the Effie court has to say about the creative judgments involved in doing history:

Hoehling is not an opinion about historians’ lack of creativity. 

Indeed, the critique offered by Patry and sympathetic historians—insisting that historians put original work into producing facts and interpretations—essentially assumes a labor-desert theory of copyright law and argues that historians are entitled to more robust property protection because they are performing the requisite creative labor.  See Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 Va. L. Rev. 1745, 1753-56 (2012); cf. Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993).  But as its opening paragraph states, Hoehling is concerned primarily with the unique importance of maintaining a free flow of accessible historical information: “The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past.” To achieve that end, Hoehling prioritizes an instrumental conception of copyright law and concludes that weak copyright protections will best facilitate the creation and dissemination of new historical knowledge.

. . . Creativity in history may approximate the creative process of generating works of fiction, but is arguably of a different sort by virtue of historians’ goal of accurately representing past reality and the shared professional norms that discipline factual and interpretive adventurousness.  These differences, coupled with the special role that historical knowledge plays in democratic deliberation, may justify different treatment of originality doctrine with respect to historical facts and interpretation.  Further, incentive-based arguments may ultimately support Hoehling’s approach.  For instance, given the growth of a large professoriate motivated—professionally, personally, and financially—to generate new historical information even in the absence of strong copyright protections, weak protection may suffice to maximize production, or at least to push it above an independently specified floor.

These two cases accurately reflect a division in the case law: creative and effortful historical judgments: no protection.  Creative and effortful judgments about the future, though they are necessarily based on evidence from the past and are equally important to democratic deliberation: fully copyrightable, no matter how small!  This division strikes me as silly.

Transformative use of the day?

NASA Johnson style.

United States of Pop

OK, DJ Earworm's unlikely to beat his 2009 United States of Pop in my estimation, but the 2012 mashup is up, and this interview has some nice bits about the difference medium makes; the interviewer describes his work as "a musical equivalent of reading a really good essay about pop music that year," which seems exactly right to me: the juxtaposition of hits works as commentary on the hits and the zeitgeist they reflect.  The other thing that comes out of this interview is a sense of process and progress: the work gets better as it goes, which is why we shouldn't require all remix works to be awesome before they get legal protection: you don't get the best stuff in any form without allowing its practitioners to experiment, learn, and even sometimes fail:

I'm fascinated by pop music, and I'm fascinated by how it relates to culture, and how the little nuances of development in the pop-music landscape reflect often significant cultural developments. I mean, at first it was just an experiment, and then I realized that it could be something more. The first year [my attitude] was like, "Can this be done?" and even the second year I was like, "Well, I might do it again, we'll see if I can get it to work." But by the third year I thought, well, not only do I have to do it, but I realized what it could be. At that point I thought maybe we could be, from the ground up, telling a story that reflects our collective experience, but that also reflects the spirit of the new year, in a way — the passage of time, and renewal, and this idea of us all going through it together. That's when 2009 happened.... I feel like every year I learn a lesson from what I did right and what I did wrong ....

In this interview, he talks further about the ways in which music expresses emotion and conveys meaning, and how his editing choices emphasize particular aspects.  HT GK.

Copying as speech redux

This NYT article on the history of the paper trail includes a discussion of the expressive value of copying the Pentagon Papers:

Mr. Ellsberg obsessively made copies of his copies, even enlisting the help of his children in what she describes as an act of radical self-publishing. “Even though we think of copying now as perfunctorily ripping something off, he was expressing himself by Xeroxing,” [Professor Lisa Gitelman] said. ... The Pentagon Papers were a landmark, in her view, not just in the antiwar movement, but in a “Xerox revolution” that allowed citizens to seize hold of official documents, and official knowledge, and turn them to their own purposes as never before.