The Faculty Lounge

Cocky (TM) Situation Heats Up

I recently posted about a romance author who had registered the term "Cocky" for a series of books relating to the exploits of the Cocker Brothers. That registration garnered a lot of criticism from the publishing community. Both the Romance Writers of America (RWA) and the Authors Guild become involved in subsequent legal battles surrounding the mark. On June 1, the District Court of the Southern District of N.Y. struck down an application for a TRO and a preliminary injunction made by the registrant of the mark against the editor of a romance short story anthology entitled "Cocktales" and another romance author who used a similar term in his title. The court noted that it was a weak mark at best and that purchasers of romance titles were not likely to be confused by the similar terms used in different titles by different authors. The mark remains registered and several cancellation petitions are still pending, but at least the ruling has given competing authors some comfort. The Guardian covered the story here. 

(And I'm aware that any mention of this story opens the field for all kinds of puns, so have at it ...)

That "Cocky" Trademark

For anyone interested in the use of trademarks in the publishing industry, an interesting situation is emerging in the romance writers' area. This week romance author Faleena Hopkins was granted a registered trademark in a stylized version of the word "Cocky" for her romance series which includes the word in the title of each of her books. Apparently she then sent takedown notices to Amazon to ask them to remove from sale other romance books with the word in their titles and also sent letters to independent romance authors asking them to change their titles. The Romance Writers of America has apparently engaged an IP attorney to investigate the matter and there is at least one cancellation petition floating around at the moment. A number of legal issues are raised here including whether the registration should have been granted in the first place, although, in theory, there's no objection to registering a mark that relates to a book series, as opposed to a title of a single book. It's also important to understand that registration is not the same as owning the mark - it gives benefits to the registrant but it's of course possible to claim an unregistered mark as valid. So even if the registration is cancelled, there may be questions as to whether there's a valid unregistered mark in play. There's a useful summary of the situation and relevant legal issues here.

Morality Clauses in Publishing Agreements

Of possible interest to those concerned with free speech and free flow of ideas in publishing are recent moves in the  industry to insert "morality clauses" into publishing contracts to effectively allow publishers to cancel book contracts if the author includes content or engages in conduct deemed to be "immoral". The moves have largely come out of concerns associated with the #MeToo movement but also can cover speech considered to be politically unsuitable for publication. This recent Publishers Weekly piece outlines some of the measures being taken by publishers and associated concerns in the industry.

Monkeys and Copyright

For anyone who has been following the copyright litigation involving the infamous "monkey selfie", the 9th Circuit Court of Appeals this week seems to have brought the matter to a close for now, ruling (after relevant parties reached a settlement) that animals cannot hold copyrights under U.S. copyright law, a proposition that no copyright lawyer probably ever doubted.

PETA had been pursuing the action on behalf of the macaque monkey who had used freelance photographer David Slater's camera to take selfies which became an Internet sensation among other things.

Earlier chapters in the litigation had focused on whether Slater himself could claim copyright given that he was not the person who actually took the photographs, but the case took a turn into the more abstract question as to whether the monkey could claim copyright. That question seems for now to have been put to rest. It's certainly been an interesting case to follow, and it likely has ramifications for questions about digital technology in terms of claiming copyright in works made by machines and other technological devices. It's typically been accepted that U.S. copyright law requires the efforts of a human creator in order to claim copyright, but questions have arisen about whether machines programmed by humans meet that definition. Creations by animals have been regarded as a related issue.

A summary of this week's decision is available here.

Sometimes, you need to talk to an Artist to understand the law...

This week, a project that Colin Marks and I have been working on for about a year and a half was realized in its published form: a coloring book to help students understand Secured Transactions.  (By the way, Color Me Secured is available now at Amazon for $19.99 -- Prime eligible).  There are lots of reasons this makes sense, things I will share in future posts, such as how we talk about realism with students who don't have the first clue what the terms we are using mean?  At core, Color Me Secured is a translation tool, that helps bridge the gap between the language of security in personal property, and their experiences.   

But what I want to talk about today is the process of how this came about.  Around March of last year, I called up Colin and said "I've got a crazy idea.   What do you think about a coloring book for Secured Transactions."   I was a bit tepid on whether this was just a goofy idea I had in the middle of class one day or whether there was merit to the idea.   Colin without a moments hesitation exclaimed "Oh My god, that is great."  Over the next eight months or so, we sketched out on a word document various ideas about what it would look like, had research assistants read over it to see what their take on it was, and then started talking about how to make the art work.     

At the end of the day we hired an outstanding artist (as you'll see) Dave Spear  to take our rough sketch ramblings about what we thought should be on a page and create the beautiful work that is in Color Me Secured.  (Dave got it on the first take, almost without exception).    He expanded our story line to include more human elements of the interactions between the characters.   And this is where I would like to focus this post today.   Sometimes, we need to talk to an artist to understand the law. 

One of the things that makes Color Me Secured special, is it takes a dry, difficult subject like Secured Transactions, and humanizes it.   Our two characters Billie and Chadwick are friends in law school trying to sort out what Secured Transactions mean.   One gets it and the other doesn't and they explain the substance and nuance of secured transactions by tapping into experience, mnemonics, analogies, and other ways of translating the material.  
The humanness of seeing characters engaging in the activities of secured transactions was what we sought to explain.  How an account is more like a steak, rather than a pitcher, or how holding a place in line at a concert is similar to filing a financing statement.  The every day activities of students provide a wealth of information about how we communicate information.   Color Me Secured gives professors and students a handy way to tap into those things to explain some challenging content.  Color Me Secured also works by asking students to do something while they are working through secured transactions.  I tell my students each year that Secured Transactions is like algebra - its not hard but it does require you to do a bit each day.   Color Me Secured delivers small dose content with big ideas by drawing on images that students already understand.   And then slowly the images, language, and experiences begin to meld together to create an immersive experience.  What Color me Secured does is give students a different outlet to hear the same words and apply them to a different context.   

Lastly, Dave pointed out something to us that we had not realized.  The story needs an ending.   Too often, when we teach Secured Transactions, we assume the students know the ending.   In my class I repeat to students something Wilson Freyermuth told me many moons ago -- that Secured Transactions is like a circle and it doesn't matter where you start as long as you make it all the way around.   I think that is true, but what we often forget is that making it around the circle doesn't necessarily mean there has been an ending.  Dave, when he read the work and thought about it asked quite pointedly "So what grade did they get? How does it end?"  That's a pretty simple ask -- that stories need endings.   I think we are often so tied up in the complexities of how law plays out, we forget this basic human need for closure.  So Color Me Secured has that as well.   

I hope you consider purchasing a copy of Color Me Secured.  I think this is the type of project that is a nice supplement to traditional course work.   I'll be back later this week to discuss other things, like self publishing, realism, and future projects.  

Star Trek Copyright Infringement Claim Settles

I usually try to keep my geekery off the blog, but I've been watching the recent litigation involving the AXANAR (Star Trek fanfiction) film with interest in recent weeks. After the District Court for the Central District of California found on January 3 that the fanfiction film could not avail itself of the fair use defense to copyright infringement, the case went on to settle last week. The settlement reportedly includes the stipulation that the defendant adhere to a new set of fanfilm guidelines put forth by Paramount (which owns the relevant copyrights). These guidelines will likely affect future fanfilms. Presumably, if you adhere to the guidelines, you're working under a license from Paramount and won't have infringed copyright. The guidelines state that fanfilms have to be less than 15 minutes long and cannot use "Star Trek" in the title, among other things.

In some ways, it's actually helpful to fans when copyright holders set out guidelines like this, to make it clear precisely what fan activities are allowed with the copyright works. The Kindle Worlds program set up by Amazon a couple of years ago takes a similar approach to promulgating guidelines set out by the copyright holders of works included in the program to allow fans to make their own fanworks without infringing copyrights i.e., effectively under license from the copyright holders.

The downside is that it's possible, and indeed likely, that many of the guidelines now being put forth by copyright holders about fanfiction are actually more restrictive than, say, the fair use defense to copyright infringement might allow, but with the guidelines in place, many fans may take the path of least resistance (resistance is futile?) and comply with the guidelines for avoidance of doubt.

Creators of fanworks have not had much clear guidance from the law about when, and whether, their works are fair use - it's very difficult to make such determinations in the abstract and copyright law really requires these issues to be decided on a case by case basis. Several law professors (notably Rebecca Tushnet) have done a lot of extremely useful scholarly work over many years on fanfiction and copyright infringement, but we still have a long way to go in educating fan creators about their rights and obligations.

What kind of impact might the Star Trek infringement settlement have on the scope of fanfiction and fair use, if any? Or are we just seeing more of the same in the battle between content owners and fans?

Law Clerks, Confidentiality, and David Lat's "Supreme Ambitions"

Out here in the great Pacific NW, the Portland outpost of the Ninth Circuit Court of Appeals just had a fantastic book club discussion of David Lat's new novel, "Supreme Ambitions," hosted by none other than Judge Susan Graber.  As the Washington Post noted, "Supreme Ambitions" is "an engrossing page-turner that focuses on the ... subject of federal judges and their law clerks."  It's also a thriller, a love story, and tale about an ethical quandry--all wrapped up in one extremely diverting novel!

Among his other pursuits, Lat is founder and managing editor of Above the Law, and thus tightly plugged into the sturm und drung of being a newly graduated lawyer in the 21st century.    This, combined with a tremendous variety of ages and experience at the book club luncheon (ranging from fresh-faced law clerks to almost 30 years on the federal bench), made for a fascinating and wide-ranging discussion about the topics in the book.

So as not to give away the plot of the book (which I highly recommend), I wanted to focus on one topic that sparked a good discussion at the book club meeting:  the question of confidentiality.  Judicial clerkships are an interesting beast, yoking the appointed or elected judges to brand new law graduates, and giving these law clerks unprecedented access to confidential information and influence over how cases are decided.  How strong is the ethos of confidentiality in this atmosphere?   If there is potential wrongdoing by a judge, is it the law clerk's duty to report it?  Or are law clerks simply extensions of the judge, not authorized in their own right to do anything without the imprimatur of the court?

We've had law clerk confidentiality leaks before, of course.  Edward Lazarus, a former Blackmun clerk, famously--and controversially-- published an entire book about the "secrets" of the Supreme Court in Closed Chambers.  As the blurb for the book itself notes, this caused a "firestorm of controversy," with an argument about confidentiality and ethical violation pitted against an argument about openness and transparency in the justice system.

This last point, in my opinion, is why both lawyers and laymen have a constant fascination with what goes on inside the judiciary.  Much of American adjudication takes place behind closed doors.  Any  insider account is all the more thrilling because the general public knows so little about the machinations of decision-making.   This is particularly true in criminal justice, where we have gone from a system of jury trials to a system of plea bargains, shifting the adjudications from public to private.   The public simply desires to peer behind the alabaster columns and underneath their robes, whether it's the local judiciary or the Supreme Court (which still refuses to allow cameras for oral arguments!)

In any case, if you want to have a captivating read that also gives you the inside scoop on the exciting life of a 9th Circuit law clerk in glorious Pasadena, CA (home to my beloved judge A. Wallace Tashima) , be sure to pick up Supreme Ambitions!

RIP: Al Feldstein

I don't know how many other readers grew up on Mad, but I can still recall hitting the magazine stand at the Hyde Park Co-op each month, looking for the new issue.  Al Feldstein was the editor in those days and some of the key features - light Dave Berg's Lighter Side - were created on his watch.  

He died Tuesday at 88 - but for some of us, Feldstein's Mad creations live on pemanently in our funny bones.

Peter O'Toole Dies at 81

I know this isn't law related, but because "How to Steal a Million" with Peter O'Toole and Audrey Hepburn is one of my favorite films, I wanted to note O'Toole's passing. Story here.

Shelf Life Extended, Wal-Mart Makes Hostess Twinkies Fresh Longer

I k now.  It's been hours since I've discussed new developments in the Hostess rollout story.  But I hadn't focused on this incredible new feature of the Wal-Mart Hostess Twinkie: it lasts twenty days longer than the old version.  Apparently, the new spongy delight cake will stay fresh and delicious for 45 days now - up 20 days from its old 25 day shelf-life.  The twin evils of moisture release and mold growth were holding Hostess back in the old days.  Somehow, Wal-Mart put these demons in their place and brought forward a convenience food you can keep around the house for a full  month and a half.   That's long enough to send them with your kid to 6 weeks of overnight camp! (Oops.  It's a little too late for this summer.)

Hell...if you can double the number of transistors on an integrated circuit every 18 months,  technology should permit the doubling of a Twinkie's shelf-life every 83 years!  To think my great-grand-children might keep their Twinkies for a full three months.

 

Hostess Cupcakes Return To Walmart -- Early. Crack Open The Kim Crawford!

Just 48 hours ago, I was excited to let people know that Twinkies were back on the market as of this weekend.  Sadly, I reported, we'd have to wait until later in the summer for the chocolate tier of treats.  Well...those reports were flat wrong.  This very day, as I headed to my local Walmart Twinkie section, I came upon the crown jewel of the faux bakery collection: the delicious, creme filled chocoate cupcake.   

I'm thnking they'll go great with a splashy New Zealand Sauvignon Blanc.  

Image: MY cupcakes photographed on kitchen counter prior to breaking open the box.

Twinkies Are Back (at Wal-Mart); When Will Hostess Ho-Ho's, Suzy-Q's, Zingers, And Sno-Balls Return?

Hostess pastries are back, now as an in-house brand for Wal-Mart.  As of today, Twinkies hit the first Wal-Mart...and they'll be in thousands of stores by Sunday.  I trust that at least a few of our allegedly high-brow, locavoracious, Wal-Mart hating readers will make the pilgrimage to the House that Sam Built in the next few days to stock up on those death-encouraging, Kessler-enraging, artificially flavored, colored, and textured treats.

But what about those of us who were never really taken by the Twinkie?  Those of us who prefer chocolate style junk food treats?  Don't despair!  It appears that Ho-Ho's, Cupcakes, Zingers and Suzy-Q's will arrive later this summer.  With Sno-Balls coming in the fall, presumably in time to mock those disgusting, cold, and flavorless "genuine" snowballs.

Of course, Wal-Mart wasn't the inevitable caretaker of Hostess.  It could have gone to the nation's largest retailer of pastries, after all.  A Zinger and a tall Kati Kati anyone?

Image: Zingers from those halcyon days of Dolly Madison Bakery, before being acquired by Hostess.

Thinking About Plagiarism

I'm probably late to the party in noticing Richard Posner's book on plagiarism that was originally published in 2007, but it was an interesting read. I do have a bone to pick with calling it a "book" or even a "little book" as it's not much longer than a law review article and you can read it in an hour or two, but it was a fun hour or two on my part.  Posner doesn't answer many of the questions he raises about the nature of plagiarism, why it is considered a wrong, when it might not be a wrong, what are the appropriate sanctions etc. However, he raises great issues worth musing about, and it's a great survey of the different contexts in which we see conduct that may be described as plagiarism - including academia, judicial opinion writing, commercial fiction, historical literature, and art. While he talks about the significance of digital technology both in enabling plagiarism and in identifying instances of plagiarism, he doesn't come to any meaningful conclusions about whether plagiarism is qualitatively "different" in the digital world. However, he does look at how different economic models of literary production over the years impact on concepts of the wrongfulness of plagiarism over time. So if anyone is interested in thinking about the broad strokes of plagiarsm, the contexts in which it arises and how it differs from copyright infringement and fraud - and sometimes doesn't differ that much in practice - this is an interesting read.

Apple Loses E-Book Antitrust Litigation

Cross-posted from Madisonian.net ...

The District Court for the Southern District of New York today handed down its decision in the ongoing Apple e-book antitrust litigation holding that Apple violated antitrust law in its participation in (one might say orchestration of) a scheme to raise retail prices of e-books in 2009-2010 when it launched its iBookstore with the iPad. Story and judgment available here. And for anyone interested in the structure of the e-book industry, the recitation of the facts re how the industry works and how Apple sought to change the original model dominated by Amazon is very instructive and reads not unlike a Greek drama. It’s probably the most detailed account I’ve read explaining the distribution and price determination models within the industry.

Favorite Sci-Fi Terminology

As today's Google doodle memoralizes, today is the 66th anniversary of the Roswell incident, which got me thinking of all things sci-fi. I've been catching up on some sci-fi reading lately - particularly in light of the fact that the Ender's Game movie will finally be coming out later this year - and I started thinking about some of my favorite sci-fi terminology invented by authors in the genre. A current favorite is "glasstique" - a combination glass/plastic building material that I think was coined by Ann Aguirre in "Grimspace". Does anyone have others they'd like to share?

The Best High Tea In New York City? Afternoon Tea At The Hotel Lowell Pembroke Room

One of the great pleasures of a trip to NYC is a stop for afternoon tea.  No, it's not London.  But the city does have a number of wonderful places to stop for some afternoon relaxation.  Among the city's finer options is, of course, The Russian Tea Room.  But I don't think I've ever had a nicer trip back to 1948 than tea at the Hotel Lowell on the Upper East Side.  The dining room and the service both feel as if they'd been preserved from that moment, 65 years ago.  Sure, the tea was delicious.  The place was filled with grown ups when we were there, but our flock of three girls - ages 8-11 - were welcomed and felt entirely comfortable.  And when it turned out that  the restaurant had run out of Nutella (for about 10 minutes), the girls were treated to a mind boggling martini glass filled with candies.  Anything to keep their spirits up!

It's not just the restaurant.  The Hotel Lowell is a gem, through and through.  I've heard it said that it's best New York hotel you've never heard of.  

But I don't have to rely on hearsay when it comes to high tea.  The girls left the experienced awed.  We couldn't have asked for better.

Rawls! The Musical!

The O'Reilly Theater at Keble College, Oxford recently played host to a new show: John Rawls's A Theory of Justice: The Musical!  It was billed as "an all-singing, all-dancing romp through 2,500 years of political philosophy."

Here's a trailer from the show:

A Theory of Justice: The Musical - trailer from Tom Edkins Films on Vimeo.

 

Here's the official description from Vimeo:

In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a colourful cast of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and the objectivist seductress, Ayn Rand. Will Rawls achieve his goal of defining Justice as Fairness?

The world’s first feature-length musical about political philosophy showcases a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads.

Based on the ground-breaking philosophical book "A Theory of Justice" (1971), this exciting new musical was met with critical acclaim when it opened in Oxford in 2013. Philosopher Nigel Warburton called it "brilliant: hilarious witty and profound... I cried with laughter for most of two hours!"

A crisp student review of the show is here in Philosophy Now.  There are apparently plans to bring the show to the U.S., but those who don't want to wait can download the full production for $9.99 here.

Anyone working on Habermas: The Musical? Sunstein: The Musical?

Bloomberg, Big Soda and Micropaternalism

Mayor Bloomberg's NYC ban on selling super-size sugary sodas in certain venues has repeatedly been in the news lately, particularly after a NY Supreme Ct. judge imposed a judicial stay on the ban last week.  Since the ban has raised issues of paternalism, obesity, the "nanny" state, agency creativity, over-regulation, poverty, and race, there has understandably a huge kerfluffle,with the New York Times, the Huffington Post, Rick Hills and Ethan Leib at Prawfs, Aaron Saiger at Concurring Opinions, and Mark Bittman all weighing in.

But what best explains  the ban, the stay, and the furor, given the edict's limited reach?  A very interesting new article entitled MICROPATERNALISM , written by David Adam Friedman, provides a fascinating and original theory to explain why:

In this Article, I have created a theory of “micropaternalism” to capture the essence of a unique regulatory dynamic. As I define it, micropaternalism describes when policymakers paternalistically regulate a narrow area, thereby provoking public debate about the underlying controversial issues addressed by the regulation. The loss of autonomy, even in a narrow zone, can instigate a broad-ranging discussion that ultimately influences social norms.

For example, Mayor Michael Bloomberg’s attempt to limit the portion sizes of sugary drink servings in New York City started a legal fight and a loud social fight about public health and paternalism. The New York City Board of Health enacted a code that covered an extremely narrow piece of the obesity problem, but the public debate took place on a big stage. Discussions about obesity as a public health problem leapt from the policy sphere to the popular sphere. In the long run, the dialogue may have more of an impact on public attitudes and private behavior than the actual regulation—a regulation that may not even prove enforceable. By putting the issue before the public and raising awareness, the debate about overconsumption could potentially reset norms.

Best read and enjoyed with a Big Gulp. 

Addictive Junk Foods

The New York Times has a very provocative article coming out in tomorrow's magazine about the junk food industry.  It is definitely worth a read.  The author draws parallels between the big food industry tactics and big tobacco.  This is an analogy made earlier by Kelly Brownell  Rudd Center for Food Policy and Obesityand his co-author Kenneth Warner in this article "The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food"? The Perils of Ignoring History.  One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls "the bliss" point.  What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.

A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn't make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: "The targeting would hypothetically enable Coca-Cola to target to teenagers who've bought soda in the last month..."

I have long wondered why it doesn't bother people more than it seems to that so much money is spent pitching directly to kids,  since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example.  Is Ronald McDonald the New Joe Camel?

However, just as this issue is getting more attention (again - it saw a good run in the 1970s in the FTC's ill-fated  "Kid-Vid" investigation),  the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a "chilling effect."  See here and here . It appears it was the government not the marketers, which was "chilled." FTC weakens proposals.  The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the "Nanny state" a ban is arguably far more intrusive on liberty than a ban on marketing -- except the marketers' liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers' liberty, not advertisers. So this is a bit of a puzzle. 

Women and Men in Competitive Environments

A friend yesterday forwarded me this story from Salon magazine which contains some interesting recent studies on the kinds of competitive situations in which women versus men tend to thrive.  It suggests that women are less competitive and choose to take risks which are more likely to pay off than men, while men often take greater risk if there's a chance of greater reward.  There are also suggestions about the optimal schooling environments for girls versus boys.  Food for thought ...