Category: Intellectual Property


IP and Development


Greetings from Namibia! (Do I win the contest for posting from the most far flung place?) I am in Namibia (of Brad & Angelina fame) for a conference organized by IIPI on “IP Used in Support of Culture Based Industries.” The main question being addressed is whether IP (especially copyright & trademark) can help improve the markets for African art. The problem is that although the US is the major market for African art, US consumers are not willing to pay enough for the art in order to support the communities that create it. Beautiful, hand-crafted pieces made of indigenous materials using ancient techniques are sold at bargain prices that reflect tiny sums paid to the artisans that created them. We buy these pieces at places like World Market because they look nice, but we learn nothing about their origin and significance. If that’s all we value why not buy even cheaper versions made in China? These artisans are hopeful that they can stop that type of competition by asserting IP rights in the art. Many obstacles exist of course, including the current absence of appropriate legal mechanisms and the fact that much art is already in the public domain. namibian art.pngBut the audience and participants at this conference were optimistic and very creative. One idea: could certification marks be used to prevent others from appropriating the terms used to describe the places and techniques used to create the art? Of course that won’t prevent others from copying the works; it just prevents them from using the terminology. It’s a start, but it will only be effective where it is accompanied by an education campaign about the art. The hope is that consumers will come to value the authentic, once they know what it is.

Grimmelmann: “Is Fashion a Bad?”


I always enjoy James Grimmelmann’s blog and learn much from his articles. He combines a passion for precision with an unerring sense of the big picture. That’s evident today on the Picker MobBlog discussing Raustiala & Sprigman’s work on IP protections (or the lack thereof) in the fashion industry. Rather than engage the usual dialogue on innovation maximization, Grimmelmann asks flat out: is fashion a bad?

Sure, the fashion cycle may work for the fashion industry, but is that really something we should be glad about? . . . If low IP protection is good for the fashion industry because it enables rapid copying and a quick cycle of obsolescence, and if that cycle involves waste induced by conspicuous consumption, then isn’t a low IP regime a bad thing?

I’m sympathetic with Grimmelmann’s position, and this gap is symptomatic of a larger problem: “most economists believe that the core of economics can be developed with no assumptions at all about what an economy should aim to provide” (Dupre & Gagnier). But I also feel obliged to give the other side its due. And recently, one of the most enthusiastic exponents of laissez-faire here has been Virginia Postrel. Consider this encomium to style:

Even analysts who do not view luxury goods as waste do not [adequately] credit the goods’ intrinsic sensory appeal. . . . [They have] a hard time noticing any qualities beyond status badges and advertising-created brand personas. [But] more is going on. . . . People pet Armani clothes because the fabrics feel so good. Those clothes attract us as visual, tactile creatures, not because they are “rich in meaning” but because they are rich in pleasure. The garments’ utility includes the way they look and feel.

So the challenge for the latter-day Veblen is to disaggregate the “status-conferring” aspect of the fashion from its aesthetic, tactile, and expressive appeal (as Jeff Harrison notes). But as Veblen himself realized, this is an inquiry that has to share in both economic and humanistic approaches. And perhaps it even involves a bit of “norm entrepreneurship” in reinterpreting fashion . . .

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Matlock Needs CLE on IP

Andy%20Griffith%20wallpaper.jpgThe Washington Post has a story today about Andy Griffith suing a man who changed his name to Andy Griffith to run for sheriff. According to the Post (but one can never be sure because the press is always confusing IP laws), the famous Griffith is suing for trademark, copyright and right of privacy violations. Bad reporting or bad lawyering I say. Can’t see that any copyrights are involved. As to right of privacy, publicity seems a better choice. Privacy laws usually are more exacting in their requirement of use in advertising. But even right of publicity mandates commercial misappropriation. Assuming the candidate was advertising his candidacy and soliciting campaign contributions, does this use meet either threshold? Since his advertisements are not for a commercial venture and since his solicitation is not commercial in nature, I say no. This issue of whether or not a defendant’s use a trademark must be used commercially is currently hotly contested, with my vote and slightly more authority suggesting such a requirement. The one strong point the plaintiff has is the fact of a trademark in his name. I never did understand why a show about a sheriff named Andy Taylor was called “The Andy Griffith Show,” perhaps Griffith had prescient trademark lawyers at the time.

The Griffith formerly known as William Harold Fenrick admitted that he legally adopted the new name to create publicity to aid his race. The best laid plans…he came in third. Curiously, Andy of Mayberry in addition to damages and fees, is also asking the court to order the defendant’s name change. A court ordered “Opie” would sure send a message to would-be pirate sherrifs. Remedies experts, please weigh in.


Finally, Koons Won

blanch.jpg koons.jpg

Some of the most wrong-headed copyright law was developed by Post-Pop artist Jeff Koons–-by losing. It all started with Rogers v. Koons and Judge Haight (no relation & I’d deny it if there were just based on this opinion). In that case commercial photographer Art Rogers (yes, his name is Art with a capital A) sued Koons for copying his photograph of a seated couple holding numerous puppies on their laps. Koons sent the photo (he found it on a greeting card) to a art studio in Italy with instructions to reproduce it in a sculpture. Judge Haight easily ruled that this was copyright infringement and the 2d Circuit affirmed. In two subsequent SDNY cases, Koons had Judge Haight’s reasoning thrown back at him. (In these cases the photographer of “Boys with Pig” and the copyright owner of Odie were victorious.) Given Koons’ string of losses, photographer Andrea Blanch must have thought she won the jackpot when she saw her work reproduced in his collage painting “Niagra.” I don’t mean to comment on her motives, but the copyright lawyer she consulted probably envisioned attorneys fees.

There’s much to comment on here, including what the opinion does to fair use doctrine (especially transformative use & the parody/satire dichotomy) and what it does to the law’s treatment of appropriation art. But since I’ve written about these cases before, I’ll confine my post to an analysis of why the court reached a different conclusion in this case. As I read the opinion, I kept wondering why earlier Koons courts could not have taken the same approach. Let me first set out what’s the same in these cases. Koons has stuck with the same lawyer throughout, all the litigation has been in the 2d Circuit (SDNY), and this plaintiff’s profile is similar to Art Rogers’.

Now for the differences: 1) Here the plaintiff’s photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. In both the district court and 2d circuit opinion, plaintiff’s photograph is characterized as not being creative. (This affects the analysis under FU factors 2 & 3.) And as an advertisement, these courts are able to easily contrast it’s objective and message with Koons’ objective and message, thereby aiding Koons’ argument that his use is “transformative.” 2)The court “gets” Koons’ work. In the 1st Koons case, Judge Haight’s lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons’ 1st career was as a commodities trader & how he hires other artists to make his work.) After that, the 2d Circuit and subsequent SDNY courts replayed that assesment without any further opportunity for Koons to explain his work. The district court in this case produced a short opinion heavy on block quotes, including many from Koons’ affidavit. Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to “raw materials” such as Blanch’s photography.

In the end, justice was done here both to Jeff Koons and to the fair use doctrine. Unfortunately, the price of this legal success may be Koons’ status as bad boy of the art world. The doctrinal fit is so cosy that his work feels staid. It doesn’t push boundaries; it doesn’t piss off judges. His work is no longer illegal art, and, if we take him at his word that he’s created an entirely new work out of raw materials, it may not even be properly deemed appropriation art.


Crescat Sententia’s Exploited Domain Name


Recently, the blog Crescat Sententia’s domain was taken over by a company that snatches up any expired domain names of popular websites the minute the original owner fails to renew. The company then tries to exploit the Google Page Rank of the domain or tries to sell back the hijacked domain to the original owner for a hefty price.

Originally, the blog was at the URL If you visit that URL, you can see that the blog’s full contents remain. The new URL is At the new site, Will Baude writes:

In September, without my knowledge or consent, our old domain was purchased by a Search Engine Optimization firm that intends to make money by either reselling the domain for a pretty penny to somebody greedy for its pagerank, or by using that pagerank to sell links to sites eager to trick Google. The webpage up there now is not this blog (it’s an old cache that he will have to take down soon), and this blog is the current and future home of crescat.

Because of the switcheroo, I can’t post a notice over there telling everybody where we’ve gone, so we’re reliant on people updating their blogrolls, and on word of mouth. With your help, hopefully we can minimize the disruption this has already caused.

This practice just seems wrong, and I think that there’s at least a case for copyright infringement. What potential legal recourse could the folks at Crescat take? I’ll leave it to the cyberlaw and intellectual property experts to opine on the viability of any legal redress.

UPDATE: When Will Baude emailed the owner of the company that bought up his domain name, here’s the response he got in return:

Hi William,

Thanks for your email. The content on crescatsententia is not copyrighted nor is it revenue generating so there would be no issue with the domain in its current state. Obviously the site will not remain on the domain when we sell. We left the domain on the site while you backed up your files. We were not obliged in any way shape or form to contact you so that you could save your content.

Now you reply with this stupidity. Domain names have set registration periods. If you fail to register your domain out of stupidity or ignorance then it is made available to the general public. If the domain had not been purchased it would have been deleted and all work lost.

The sale of the domain will go ahead. The new owner will have the great privelege of utilising a pr7 established domain which registers thousands of visitors a day. As is customary for such idiots; the domain will most likely be converted into a gambling site, an adsense site or a site for the adult industry which will be a great waste. However, I am no longer in control of such things and the domain needs to show a return on our considerable investment.

Again; the content will stay up for now. It was requested to remain live by yourself and im sure taking it down would affect your readers. Perhaps you will be able to contact some of them before the sale goes through and give them the new address. You never know some reader may even buy it back for you.

Happy Blogging!


Whole Latte Trademark Trouble

Greetings from sunny Northwest DC! I’m a bit slow out of the gate as it’s taken me a couple of days to recover from Halloween. Here’s what I look like today; obviously slowly getting back to my old self.


I thought I’d make my first post about a story that combines two topics about which I am obsessed: trademarks & coffee. It seems there’s a controversy brewing between Starbucks & the gov’t of Ethiopia over the designations of certain Ethiopian coffee beans. The short version: apparently Starbucks, through the a trade association it dominates, is opposing Ethiopia’s US trademark applications for SIDAMO & HARAR. (Ethiopia’s earlier trademark for YIRGHACHEFFE must have escaped notice.) The story was brought to light by Oxfam who is bitter over the action, which it says blocks Ethiopia and it’s poor farmers from annual revenues of $88 million. The thinking here is that control of the intellectual property connected with these famous coffee beans translates into increased revenues. Presumably, Starbucks’ Sidamo beans, which now sell for $10.45 a pound, would cost a little more due to trademark license fees, which would be passed on to Ethiopian farmers by their government.

The piece that doesn’t make sense to me is why Ethiopia is seeking trademarks rather than certification marks. Although this may seem a technical point, it relates to a global battle over the protection of geographical indications (GIs). The European view is that GIs are an important form of IP that protects things like champagne & feta. The US stance is that basic trademark law is more than enough protection. The US has been promoting certification marks, a type of mark protected under federal law, amongst developing countries (mostly through Free Trade Agreements) as a counter to the European model. HARAR would work as either a GI or a certification mark since the distinctive beans are associated with the Harar region. But as a trademark it has trouble because it may be understood less as a brand than as a type of bean. Whether a trademark or a certification mark, Starbucks would still have to license the use the word. I note that in an earlier proceeding in which Ethiopia challenged a Starbucks’ mark including Sidamo, Ethiopia similarly claimed previous use as a mark (since 1929). (Starbucks voluntarily abandoned that mark.) The certification mark strategy might save Ethiopia from a challenge that the term is generic since even Starbucks admits that Sidamo is the “birthplace of coffee.”


I’ve put in a call to Ron Layton, founder of Light Years IP, who is advising Ethiopia on their strategy. I’ll report back any intelligence.

UPDATE 11/6/06

Today Starbucks has taken out a full-page ad in the New York Times defending itself from Oxfam’s attack. Last week Oxfam took out full-page ads in a few major west coast papers decrying Starbuck’s position on Ethiopia’s trademark strategy.

Levity and Danger

gootube.jpgAndrew Sullivan has been doing a very funny series on “Worst 80s videos;” I think “We Built This City” by Jefferson Starship (nee Airplane) wins, with a close second from Journey. Of course, everything’s coming from YouTube, whose potential copyright liability is a hot topic in the IP blawgosphere. But perhaps even more striking here is the potential liability of sites that link to infringing content on YouTube sites. The legal landscape is complex, and as Stacy Dogan has noted, there’s a wide range of ways courts may characterize the links when assessing secondary liability:

In the narrowest view, a link is no more than a citation, the relationship between linking and linked-to site no more significant than that between a scholar and the material that she cites. In the broadest view, the link achieves the “functional equivalent of transferring” the linked content, with the linker acting as a provider of the linked-to material. The choice between these competing views has obvious import in evaluating the legal responsibility of those who link. (from Infringement Once Removed: The Perils of Hyperlinking to Infringing Content, 87 Iowa Law Review 829 (2002))

It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a DMCA violation. [I had earlier, mistakenly, called this a criminal offense; see comments below.] The question after Grokster may well be whether a hyperlink to infringing content is a way of “inducing” infringement.

In any event, Google (which recently took over YouTube) doesn’t appear to want to take any chances. It’s a lot more willing to take on publishers than the big audiovisual content owners. Which raises one more interesting question: will the movie industry exert as much control over Google/YouTube as the music industry exercises over iTunes? And might it be a form of copyright misuse for big content owners to leverage control over copyrighted works into control over all sites that categorize or comment on (fragments of) their works?


Copyright pirates, they’re certainly no Boy Scouts

And if they were … well, I guess they wouldn’t be able to get this new activity badge, would they? The MSNBC story notes:

Boy Scouts in the Los Angeles area will now be able to earn a merit patch for learning about the evils of downloading pirated movies and music. . . .

The movie industry has developed the curriculum. “Working with the Boy Scouts of Los Angeles, we have a real opportunity to educate a new generation about how movies are made, why they are valuable, and hopefully change attitudes about intellectual property theft,” Dan Glickman, chairman of the Motion Picture Association of America, said in a statement Friday. Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen.

An interesting way to try to rein in the Young and the Lawless, no? There are obvious issues here — in particular, whether the Boy Scouts should be turning over instruction on a somewhat controversial issue to an advocacy group. On the other hand, if executed well, this could be a good idea. Given the widespread use of file sharing programs, and misunderstandings about law, I suspect that many Scout-age youth could use a sobering reminder that they can’t just copy anything and everything.


For the True IP Geek: Podcasts of IP Conferences

The Berkeley Center for Law & Technology has now made podcasts of its fabulous August IP conference available online here.

And the UC Davis Law Review has made our March “Intellectual Property and Social Justice” conference available as free podcasts on iTunes.

Putting audio of academic conferences online is a tremendous advance. It makes the leading scholarship available worldwide to those with access to the Internet. At the same time, it enables scholars who cannot attend multiple sessions occurring simultaneously to listen to what they missed–or to review sessions they found especially valuable.

Law Reviews should make this a standard practice.

The obvious next step: YouTube.

Net Neutrality: Law, Money, and Culture


Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

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