Author: Jason Mazzone


Shepard Fairey Meets Charles Darwin

I have been wondering how long it would take for Shepard Fairey’s Obama and change poster to “inspire” another work. This one is on Darwin and change. If Fairey loses his case against the AP, the AP would surely have no infringement claim against the creator of the Darwin image. If Fairey wins, however, does he have a claim against the creator of the Darwin image–or is it non-infringing parody?


Social Capital and the Obama Administration

In the late 1990s, while he was a member of the Illinois Senate, Barack Obama was also a member of the Saguaro Seminar — a brainstorming group organized by Robert Putnam on how to remedy the decline in social capital in the United States.

Social capital refers to the collective value of social networks: when people are embedded in networks and can draw upon the norms of cooperation and reciprocity the networks embody there are a variety of measurable benefits both to them and to the community as a whole. These benefits can include more effective government, faster economic growth, improved health, and increased happiness.

Putnam’s article and then book entitled Bowling Alone traced the decline of social capital during the past several decades and the effects of this decline. The Saguaro Seminar brought together a diverse group of individuals to think about what could be done to counteract this trend.

(Disclosure: I worked for Bob Putnam for several years and I was rapporteur to the Saguaro Seminar.)

Among the proposals of the Saguaro Seminar is for government, when it considers new policies, to conduct a Social Capital Impact Assessment. In essence, policymakers, in considering the benefits and downsides of any program, would be required to take account of the social capital impact. Ideally, government would then adopt an approach that helped to preserve or generate social capital. (To give a simple example: in choosing between two possible locations for a shopping mall, government would select the location that did not displace or disrupt an existing community.)

Over the years, Presidents have required executive personnel to measure and take account of the impact of regulatory choices on designated variables. President Reagan, for example, issued an Executive Order requiring executive personnel to examine the impact of federal programs on federalism and, where possible, to minimize the erosion of state authority. Congress can also require impact statements: one obvious example is Section 102 of the 1970 National Environmental Protection Act which required federal officials to prepare and distribute a detailed impact environmental impact statement for any federal policy or project significantly affecting the quality of the environment.

With a member of the Saguaro Seminar now in the White House, and there in large measure as a result of increased civic engagement, there is a reasonable chance that federal agencies will be required in the near future to take account of the impact of regulatory programs on levels of social capital.


Internet Safety

Republican lawmakers have introduced companion bills in the Senate and the House entitled the Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act–or the Internet Safety Act. Each Bill imposes the following requirement: “A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.” The Bills appear to impose record-keeping requirements not just on traditional ISPs but on anybody operating a wireless access point (whether protected by a password or not): homes, hotels, coffee places, libraries, corporations, and schools.


The Baby Subsidy

Since Nadya Suleman gave birth last month to octuplets, there has been a lot of attention to how the cost of birthing the babies and caring for them (along with the six children Suleman already had) falls to taxpayers. It’s unfair, commentators say, for the public to subsidize Suleman’s family. Perhaps. But let’s widen the lens a bit. Many babies are subsidized by other people. Workers with health insurance take for granted that their insurance plans will pick up the costs of the medical care required during pregnancy and delivery. Yet it isn’t obvious that insurance should cover pregnancy. Pregnancy isn’t an illness. The costs associated with pregnancy are more like those associated with an elective procedure. Insurance doesn’t typically pay for elective procedures (tummy tucks, LASIK, hair transplants, and so on) because there isn’t anything to insure against. From the perspective of somebody in the insurance pool who elects not to have babies, coverage for pregnancy isn’t far from the taxpayer’s coverage of Suleman’s bills. Paid parenting leave and other employee benefits further subsidize babies; employees who do not have children cannot normally ask for a Caribbean cruise instead. Perhaps the lesson is: people in subsidized houses shouldn’t cast stones.


Evolution’s Anniversary

Today, February 12, 2009, is the 200th anniversary of the birth of Abraham Lincoln and of Charles Darwin. Darwin studied evolution. Lincoln produced it.



I like advertising. I think Times Square at night is beautiful. And that the 1950s ad man was an artistic genius. I’m not so sure, though, about Disney Farm Fresh Eggs. These eggs come with Disney characters stamped on the shell. Disney also sells a mold so when you fry up your eggs they look like Mickey Mouse. No image of the battery farm chicken who laid the egg.


Did the AP Break the Law?

There is an interesting development in the dispute between artist Shepard Fairey and the Associated Press. The New York Times reports today that the photographer, Mannie Garcia, claims that under the terms of his contract with the AP, he, not the AP, owns the copyright in the photograph on which Fairey’s poster is based. We’ll have to see how this plays out. But this is a good opportunity to mention the little known (and rarely enforced) criminal provisions of section 506 of the Copyright Act.

506(c) says: “Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.” If the AP does not own the copyright, have AP employees violated this provision? In addition to the requisite intent and knowledge, we would need to know whether AP versions of Garcia’s photo carry a copyright notice attributing ownership to the AP (or words to that effect).

Section 506(e) says: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” Here, we would need to know first whether the AP has registered a copyright in the photograph. I tried searching the registration records at the Copyright Office to determine if there is a registration for the photograph but I was unable to narrow the search terms sufficiently. Perhaps somebody has the scoop?


Research Agendas

Candidates for law school faculty positions often present a “research agenda” in which they set out the projects they plan to undertake during their first years as a member of the faculty. Many of these research agendas are more heavy on agenda than on research. Candidates write things like this: “I plan to research how the political process systematically disadvantages members of minority racial groups and why voting laws need to be changed.” Or like this: “In this project, I will research how bloggers intimidate women and explain why the First Amendment should not protect certain kinds of blogging.” This isn’t research. It is a statement of a conclusion that has already been drawn without the benefit of research. It always surprises me when intelligent, educated people committed to an academic career have managed never to learn how to frame a research topic. One of the problems, of course, is that the JD isn’t a PhD. Graduate students in other fields of study learn the methodology of academic inquiry. Another problem is that our own profession often encourages the agenda over the research. The AALS Annual Meeting often has a theme that suggests an agenda. Last time I attended (two years ago in New York) the theme was something like “Reassessing Our Role in Light of Change.” More substantive national conferences also have themes. At Law and Society this year, the theme is “Law, Power, and Inequality in the 21st Century.” There will be plenty of great papers that don’t have anything to do with that issue but it’s too bad that participants are officially organized under this slogan. And it is little wonder that the prospective (or new) professor might get the message that promoting an agenda is what legal scholarship is about.


Don’t review this book

Amazon has launched Kindle 2. Stephen King has written a short story that is available exclusively to Kindle owners. Is the story any good? Unless you buy it, you might never know.

Under Amazon’s terms of use, digital content for Kindle is licensed.The license grants the licensee “the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for . . . personal, non-commercial use.” Further, the licensee “may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party.”

Arguably, these terms prohibit the Kindle user from excerpting text from digitally-delivered works for the purposes of writing a review. A review quoting text would be a “display” of the content in a form other than on the Kindle device and would be for a non-personal and possibly commercial use. The use of the text would also be a distribution to a third party.

If other authors make their works available exclusively to Amazon for digital distribution, and Amazon is able to enforce its licensing agreement with its subscribers, reviews of those works might not appear–or reviews might be limited to description of the work, without quotations from it.


Moreover, these circumstances make it more difficult to browse a work before purchasing it. Sometimes in bookstores, I come across a book that is sealed in plastic. I always remove the plastic so I can see if I like the book before I purchase it. Perhaps that isn’t what the publisher intended, but nothing has ever happened to me as a result. Amazon takes things further. Kindle users do not get to see an entire work before purchasing it. And forget about showing your digital content to a friend (who might be thinking about buying her own copy): the license agreement appears to prohibit that too.