Wednesday, March 04, 2015
By implying that the Old City of Jerusalem was recognized as being in Israel, rather than in occupied Palestinian territories. File under: having the First Amendment makes the US very different.
Monday, March 02, 2015
First Resort, Inc. v. Herrera, No. C 11-5534 (N.D. Cal. Feb. 20, 2015)
The court rejected a facial challenge to San Francisco’s Pregnancy Information Disclosure and Protection Ordinance, “aimed at ensuring that indigent women facing unexpected pregnancies are not harmed by false or misleading advertising by certain providers of pregnancy-related services that do not offer abortions or referrals for abortions.” First Resort is a non-profit corporation which operates a state-licensed community medical clinic in San Francisco. The clinic offers pregnancy testing, ultrasounds and counseling, but not abortions, emergency contraception, or referrals for same.
First Resort’s ads characterize it as a provider of medical care and counseling services for pregnant woman. Abortions and related resources are “featured prominently in its promotional materials.” Thus, its website has a heading “Abortion Counseling,” claiming to offer “abortion information, resources, and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion.” Another page discusses “Pregnancy Services and Abortion Services,” and claims to provide “pregnancy options counseling and many other services.” The website and ads make no mention of First Resort’s anti-abortion views or refusals to provide abortions or referrals. First Resort targets women considering abortion, and uses Adwords to show its paid ads when “San Francisco” and “abortion” or “emergency contraception” are used in combination. It considers keyword advertising “a means of competing with abortion providers for the attention of online viewers.”
First Resort relies on donations generated through fundraising. Members of First Resort’s senior management receive enhanced compensation based on the number of new clients brought in.
San Francisco passed the Ordinance because pregnancy clinics that oppose abortion—“crisis pregnancy centers”—have become common throughout California. While some centers readily acknowledge their anti-abortion stance, others don’t. The City found that some intentionally deceive women, causing them harm. The deception is especially harmful to poor women, for whom time is of the essence, “and even a few days delay in accessing emergency contraception or abortion services can render less invasive options unavailable.”
The ordinance therefore barred a “limited services pregnancy center” from making statements of fact related to their services that were “untrue or misleading, whether by statement or omission,” when the center knew or should reasonably know were untrue or misleading. In particular, it was unlawful to make statements “with the intent not to perform the services expressly or impliedly offered, as advertised.” After giving notice of a violation, the City Attorney could file a civil action, with injunctive relief available as well as civil penalties of $50-500.
Because First Resort brought a facial challenge, it had a heavy burden of showing unconstitutionality across the board. The City took the position that the Ordinance only regulated false and misleading conmmercial speech, which is unprotected. There was no dispute that only false and misleading speech was targeted, so the court asked only whether the Ordinance regulated commercial speech.
The Supreme Court has held that speech may be “characterized as commercial when (1) the speech is admittedly advertising, (2) the speech references a specific product, and (3) the speaker has an economic motive for engaging in the speech.” While “[t]he combination of all of these characteristics . . . provides strong support for the . . . conclusion that [the communication is] properly characterized as commercial speech,” it is not necessary that each of the characteristics “be present in order for speech to be commercial.” Factors (1) and (2) were true of First Resort’s ads here.
First Resort argued that its ads weren’t commercial speech because it didn’t engage in economic transactions with its clients and thus had no economic motive for its communications. But that wasn’t helpful for a facial challenge. In any event, failure to charge a fee wasn’t dispositive. The record strongly supported the conclusion that First Resort’s ads, in context, were economically motivated. First Resort paid for Adwords, and considered its ads a means of competing with abortion providers for online attention. “Notably, First Resort’s ability to attract clients to its clinic is critical to its fundraising efforts—which, in turn, are necessary to First Resort’s operations, including the provision of free services.” Thus, the ads were economically motivated, and even for First Resort the Ordinance targeted commercial speech.
True, fundraising per se isn’t commercial speech, but it was First Resort’s ads, not its fundraising activity, that was at issue; the fundraising just provided context to the economic motivation. First Resort also argued that its ads were inextricably intertwined with noncommercial exhortations to get free pregnancy counseling. But the Ordinance didn’t regulate any such solicitations—only the (unprotected) false advertising thereof.
Also, even if the First Amendment were implicated, the Ordinance was not impermissible content or viewpoint discrimination. The regulation depended on the services offered by a clinic, not its views; there were many reasons a clinic might not offer abortions that were unrelated to its views on abortion. First Resort and other clinics remained free to express their views. This reasoning also disposed of First Resort’s equal protection claim. First Resort argued that it was being discriminated against in violation of its right of conscience. But the Ordinance didn’t compel First Resort to support any particular belief about abortion; it just couldn’t defraud or mislead the public about the services it offered.
Finally, First Resort alleged that the Ordinance is preempted by Section 17500 on the grounds that they are “nearly identical and seek to regulate the exact same conduct—false and misleading advertising.” California state preemption of local regulation differs a bit from federal preemption because in theory it could preempt local rules that “duplicate” state law. But the case law indicated that what “duplicates” really meant was “creates double jeopardy” and this wasn’t a criminal law, so it didn’t create that problem. Other cases using the “duplicate” rule looked to interference with state law, and there was none here. Also, the Ordinance wasn’t coextensive with state law: it was narrower than the general false advertising law, but also broader in that it covered false advertising even when the services at issue weren’t offered for sale.
Williams v. Roberto Cavalli S.p.A., No. 14-cv-06659 (C.D. Cal. Feb. 12, 2015)
Plaintiffs Jason Williams, Victor Chapa, and Jeffrey Rubin sued the producers and distributors of Just Cavalli clothing, alleging copyright infringement, removal and alteration of copyright information (CMI) under §1202, unfair competition, and negligence. Some of the defendants moved to dismiss all claims but copyright infringement, and failed (even though it will ultimately be pretty hard to show that the distributors had the requisite knowledge under §1202 for CMI removal; a more targeted attack on that issue might’ve asked whether that knowledge was plausibly pled).
The plaintiffs alleged that they were well-known and respected graffiti artists who created a mural in San Francisco that contained signature elements identifying them as the creators. The mural depicted the stylized signatures of “Revok” and “Steel,” pseudonyms associated with two of the plaintiffs, against a background of “revolutions” imagery, allegedly publicly recognized as the third plaintiff’s signature style.
Defendants allegedly used high-resolution photography to obtain images of the mural and placed the images on a collection of Just Cavalli clothing. While the “revolutions” imagery was intact, the Revok and Steel signatures were rearranged and indiscernible.
On some items,
the brand name “Just Cavalli” was superimposed over images from the mural,
allegedly intentionally designed to “induce, enable, facilitate, or conceal”
|Examples of Just Cavalli clothing|
On the CMI claim, the court concluded that the artists’ signatures under their pseudonyms counted as CMI, even though they weren’t provided through a digital technological process. Further, it was sufficient to argue that defendants removed CMI by copying only part of the mural, so that “the signatures of Revok and Steel are chopped and rearranged to such an extent that they are not recognizable.”
Unfair competition: The third plaintiff, Chapa, alleged that his “revolutions” imagery functioned as “product packaging or logo.” Defendants argued that Dastar precluded this kind of claim, but the court concluded that Chapa’s claim alleged passing off, not reverse passing off, because he alleged that the use of his “revolutions” imagery created the “false and deceptive impression that the Just Cavalli garments and accessories are associated with and/or manufactured by [Chapa] and Plaintiffs.” Designs can be protected by both the Lanham Act and copyright law.
Because Chapa adequately pled his Lanham Act claim, his California statutory and common law claims also survived.
Hershey Co. v. Friends of Steve Hershey, 2015 WL 795841, No. WDQ–14–1825. (D. Md. Feb. 24, 2015)
Disappointing ruling on political speech and infringement now supplemented by flat-out wrong ruling on dilution. Hershey sued the Friends of Steve Hershey for political signs that looked too much like the Hershey trade dress, alleging infringement, dilution, and breach of a previous agreement to stop using the Hershey trade dress. Having previously granted Hershey’s motion for a preliminary injunction on infringement grounds, the court didn’t revisit that in its ruling on Friends of Steve Hershey’s motion to dismiss.
Defendants argued that Hershey failed to plead standing for false designation of origin because it failed to plead lost sales, per Lexmark. Hershey alleged that the “Defendant’s willful and deliberate acts ... have caused injury and damages to [the] Plaintiffs, [and] have caused irreparable injury to [the] Plaintiffs’ goodwill and reputation ....” Lexmark, the court here reasoned, was a false advertising case, serving only the Lanham Act purpose of “‘protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.’” Thus, to fall within the Act’s zone of interests, a false advertising plaintiff must allege an injury to a commercial interest in reputation or sales.”
False association is different because false association suits also serve the Act’s purpose “to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce” and “to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks.” Because Hershey was within the Act’s “zone of interest,” it didn’t have to plead withheld sales, though it was required to plead proximate cause: “economic or reputational injury flowing directly from” the defendants’ actions. The fact that Hershey pled damage to its goodwill and reputation was sufficient to survive a motion to dismiss. (Some courts might have called this a bare recitation of the legal elements; compare recent treatment of harm for irreparable harm purposes.)
Dilution is where it got ugly. As you know, Bob, § 1125(c) (3)(C) of the Act provides that “[a]ny noncommercial use of a mark” “shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection.” American Family Life Insurance v. Hagan, another political speech case, said that
[a]s courts have noted, the “noncommercial use” exemption codified at § 1125(c)(4)(B) “presents a bit of a conundrum because it seems at odds with the earlier requirement [recited at § 1125(c)(1) ] that the junior use be a ‘commercial use in commerce.’ If a use has to be commercial in order to be dilutive, how then can it also be noncommercial so as to satisfy the exception of section 1125(c)(4)(B)?” Mattel, 296 F.3d at 904. The answer to this question is that, when Congress passed the Federal Trademark Dilution Act (“FTDA”), it used the phrase “noncommercial use” as a somewhat inexact, shorthand reference to “speech protected by the First Amendment.”
Thus, the noncommercial use exemption could only apply if the defendants’ actions qualified as speech protected by the First Amendment. But the preliminary injunction ruling found that the campaign signs were infringing, and thus not protected speech. Motion to dismiss denied.
Comment: That’s just wrong, not least because the language discussed in Hagan is not the present statutory language, which got rid of the admittedly awkward “commercial use in commerce” predicate, replaced by “use … in commerce,” which is broader than “commercial speech,” followed by a specific “noncommercial use” exception. The present statutory language used by the TDRA more clearly gives effect to Judge Kozinski’s sensible interpretation of the FTDA in Mattel: the meaning of the exception is “speech that is noncommercial under the First Amendment definition of noncommercial”—which was what the Hagan court ultimately said. (The court here neglected to note that Hagan ended up rejecting the standard used here—the Hagan court was summarizing plaintiff’s argument, which the court here quotes as if it were the Hagan court’s conclusion. Rather, the Hagan court then disagreed, for largely the reasons I’m about to give.)
Although Steve Hershey’s speech may not be “protected” by the First Amendment for purposes of other causes of action, it is most certainly “First Amendment noncommercial” in that it is political speech, not speech proposing an economic transaction. (Arguably being a politician is in Steve Hershey’s economic interest given what politicians are allowed to accept from donors these days, but I still can’t imagine that fact making political speech into commercial speech.) The court’s understanding of “noncommercial use” makes the exception either completely redundant—if speech is protected by the First Amendment in that sense, no act of Congress can make it otherwise—or illogically dependent on the outcome of separate causes of action: suppose that Steve Hershey’s speech was defamatory and thus unprotected by the First Amendment for purposes of a defamation cause of action. Could it therefore also be dilutive? Trademark infringement is not dilution, so the fact that it’s not “protected” for infringement purposes should have no more effect on the dilution exception than defamation would.
Sigh. Anyhow, Maryland trademark infringement/unfair competition claims survived because the federal claims did. So did the breach of contract claim.
Mid-Continent Casualty Co. v. Kipp Flores Architects, L.L.C., No. 14-50649 (5th Cir. Feb. 26, 2015)
KFA, an architecture firm, got a judgment in a jury trial against a builder, Hallmark Design Homes, for copyright infringement for building hundreds of buildings from KFA’s designs without licensing them. KFA initially licensed Hallmark to build 11 different house designs once, but Hallmark built several hundred more copies without paying. Its complaint alleged that Hallmark used depictions of structures based on its works in promotional and advertising materials and “used the structures themselves to advertise their infringing structures.” Hallmark filed for bankruptcy, but the trial went forward because Hallmark was potentially covered by the policies at issue here. The jury found that Hallmark had infringed KFA’s copyrights and that KFA had an unsecured claim in Hallmark’s bankruptcy in the amount of $3,231,084 plus costs.
Hallmark’s insurer, Mid-Continent, sought a declaratory judgment that it had no duty to indemnify. Its policies excluded coverage for copyright infringement, but exempted advertising injury from that exclusion, and allowed the holder of a judgment against Hallmark to recover under the policies. The district court found coverage under the advertising injury provision of Hallmark’s policy, holding Mid-Continent liable in the amount of the prior judgment plus attorney’s fees. Mid-Continent appealed and the court of appeals affirmed.
Texas tries to give every policy term meaning as well as to give terms their ordinary meaning unless the policy itself shows intent to give a term a technical meaning. Ambiguity will be construed against the insurer. The “facts actually established in the underlying suit control the duty to indemnify.” The policies at issue defined “personal and advertising injury” as “injury . . . arising out of one or more of the following offenses: . . . infringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’” “Advertisement” was defined as “a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.” This included material on the internet or other electronic communications, as well as “only that part of a web- site that is about your goods, products or services for the purpose of attracting customers or supporters.”
Mid-Continent argued that the previous judgment never found there was an advertising injury. “The insurer’s duty to indemnify depends on the facts proven and whether the damages caused by the actions or omissions proven are covered by the terms of the policy. Evidence is usually necessary in the coverage litigation to establish or refute an insurer’s duty to indemnify.” However, a coverage suit often requires the parties to submit evidence of facts which were not specifically covered at the earlier trial, since issues relevant to the question of coverage can be irrelevant to the question of the insured’s liability. Thus, courts can make necessary factual findings related to such issues in coverage actions.
The issue of “advertising injury” was irrelevant to copyright infringement liability but essential to coverage under the policy. Because the jury determined that the houses themselves infringed KFA’s copyright, the key question here was whether the houses themselves were “advertisements.” The policy language, plus KFA’s “ample” evidence that Hallmark used the infringing houses for marketing purposes, showed that they were ads.
KFA presented evidence that the houses themselves were used to attract customers, in addition to evidence of website and print promotional materials; the houses themselves were Hallmark’s primary form of marketing. “One of Hallmark’s representatives testified in deposition in this suit that homebuyers never bought houses sight unseen, but rather would look at the model homes Hallmark built as well as elevations and floor plans in the sales office or on the website. In addition, Hallmark put up yard signs with its contact information on the sites of homes it built to attract customers.”
Mid-Continent argued that, regardless of these facts, a house could not be an “advertisement.” The policies defined an ad as “a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters,” and Mid-Continent argued that as a matter of common sense, a house can’t be a notice, nor can it be “broadcast or published.”
However, the policies never specified that “notice” must take any particular form and never excluded from the definition a physical object, nor did they define “broadcast” or “published.” “Notice” in the OED is defined sweepingly as the “act of imparting information” or “something which imparts information.” Case law had construed “notice” very broadly, and “publish” was comprehensively defined as “to make public or generally known” or “to make generally accessible or available for acceptance or use (a work of art, information, etc.); to present to or before the public.”
Texas law also recognized advertising as “call[ing] to the public attention by any means whatsoever” for purposes of the Texas Deceptive Trade Practices Act, or as a “marketing device designed to induce the public to patronize” a particular establishment, or “a public notice drawing attention to” the attributes of a business. This accorded with the “common understanding of the term as referring to a device for the solicitation of business.” Hallmark’s primary means of marketing its business to the public was through the use of the homes themselves, both through model homes and yard signs on the property of infringing homes it had built. Indeed, there was no evidence that Hallmark’s customers saw any marketing materials other than the houses themselves. “Under the undisputed facts, Hallmark’s use of the infringing houses satisfies not only the policies’ expansive definition of “advertisement” and Texas law’s similarly broad construction of the term but also common sense.” Thus, the infringing houses, as used by Hallmark, were “advertisements.” See also King v. Cont’l W. Ins. Co., 123 S.W.3d 259, 265 (Mo. Ct. App. 2003) (same result).
Mid-Continent argued that the policy excluded coverage for Hallmark’s marketing activities because advertising necessarily was an activity or item distinct from the product being advertised. The facts peculiar to Hallmark’s business—where the houses themselves were Hallmark’s primary means of marketing—and the broad policy language at issue justified rejection of this argument.
Next, the court agreed that Hallmark’s liability was “because of” a covered advertising injury. KFA did not have to prove that the infringing advertisement swayed a particular buyer’s decision. Nor was KFA barred from recovery because the damages award included non-covered damages for infringement in the construction and sale of the houses themselves. Even if infringement in construction and sale could be distinguished from infringement in Hallmark’s use of the houses as advertisements (how?), copyright law didn’t distinguish between those infringements for purposes of damages. Thus, KFA would have received a full recovery—here, actual damages—for any type of infringement, making the advertising injury damages separate and independent from other damages resulting from infringement by construction and sale.
Mid-Continent then failed to meet its burden of proving an exclusion applied. Mid-Continent argued that breach of contract was excluded (except implied contracts over advertising ideas), and that KFA and Hallmark entered into architectural services agreements. But KFA stated a claim only for copyright infringement, not breach of contract. Neither side ever argued that there’d been a breach: Hallmark argued unsuccessfully that KFA never terminated the agreements, so it had granted Hallmark an implied license to continue using KFA’s designs. Copyright infringement could only have occurred after Hallmark lost its license. All the damages in the suit were copyright damages, not contract damages. Thus, Mid-Continent failed to show that the prior judgment was related to breach of contract.
Mid-Continent also claimed that the cause of action came from pre-policy conduct, but the pre-policy conduct was when Hallmark had a valid license from KFA.
Moreover, Mid-Continent wasn’t allowed to argue that Hallmark’s use of KFA’s designs wasn’t infringement under 17 U.S.C. §120(a). Mid-Continent wasn’t allowed to relitigate facts established in the prior liability case, and the jury specifically found copyright infringement.
Finally, KFA got its attorney’s fees, based on a contingency fee agreement between KFA and its lawyers (minus a reduction for time spent not on the breach of insurance contract claim).
Friday, February 27, 2015
Moderator – Irene Calboli, Marquette Law School and National University of Singapore
Carys Craig, Osgoode Hall Law School, York University - Deconstructing Copyright’s Choreographer: the Power of Performance (and the Performance of Power)
Feminist approach to conceptualizing artistic creativity can shed light on choreography as engaged and embodied practice and demonstrate weaknesses of dominant conception of creativity (myth of romantic author). Relational approach to ©, reimagining creative practice/authorship.
Deconstructing copyright’s choreographer: the myth of independent creation; false binaries of mind/body, author/performer; reuse and transformation of choreographic works as cultural conversation. Unsettling core constructs of independent authorship, ownership/exclusion.
©’s liberal individualism versus choreography. Copyright’s author is liberalism’s human subject, depending on Enlightenment ideals of individuation, detachment, and unity. Establishes moral hierarchy: author as creative genius and everybody else, the mere copyist. Diminishes value of creative reuse. Gender of genius: conceptions of genius over time have changed to be whatever attributes are attributed to men: sometimes passion, sometimes rationality. Feminist theories of selfhood, agency, and creativity offer a way to reconstruct ©’s author and capture the situated nature of authorship and the dialogic nature of creativity.
Choreography exemplifies the mismatch between concepts and practices. Divergence between ideal of authorship and art of choreography is especially pronounced. In part b/c of fundamental culture of sharing entrenched in dance historically and today. Body is the instrument in dance—makes dance something experienced with and through others; necessarily social and communicative. Dynamically interactive.
The choreographer as creator: who qualifies as the author? Formerly choreography was treated as mere stepchild of drama. Dance seen as mere spectacle in 19th century—to call it dramatic composition “is an insult to the genius of the English drama.” Contributed nothing to art (exhibition of underdressed or undressed women). Loie Fuller’s Serpentine Dance was refused © on grounds it wasn’t a work but an idea that a “comely woman is illustrating the poetry of motion.” Poetry is expression when written, but not when moved. Finally, Balanchine: “ballet is woman”—“a garden of beautiful flowers, and man is the gardener.” Women as bearers of meaning under the male gaze; role of maker of meaning is reserved to man. Copyright’s ideal type: white male vision of choreographic production, with gendered and raced performative duties, enshrined as standard for copyrightability: Caroline Picard. Woman gives aesthetic pleasure but does not create it.
Choreographer as independent creator: as the limits of authorship are drawn, separating physicality from authorship. Values implicit in this artificial division are gendered. Balanchine says choreographer is sculptor—choreography is a solo endeavor; dancers are the putty/clay and his job is to get them to make real his desired vision. Compare Beiswanger, who says that the relation between choreographer and dancer is dynamically interacting; the molding of vision is mutually creative process. Dancer is filled w/human creative capacity, shared tradition. Only dynamics of power and privilege allow us to recast choreographer as sole author and dancer as raw material. Mirroring the mind/body duality. Textual is privileged over performed. Masculine over feminine.
Improvised dance: Moment of pure expressivity where mind and body merge: © struggles and recedes from view in the face of that ephemerality. Doctrinally difficult and practically irrelevant because process is key when it comes to improvised dance, and © prefers the product.
Dialogic nature of choreographic expression: Traditional ballet has heterosexual dynamic: masculine power, feminine weightlessness; strict division of duties in traditional ballet. Virginal/manipulative ballerinas and supportive/manipulative males. Jones and Zane quoted Balanchine but changed the gender of who was supported and who supported—angered lots of people. Choreographer reckons with who can give weight and who bears it, who initiates movement and who follows, who is passive and active, who is looked at and who looking.
Dance can challenge power—street culture (initially male-centered); rap videos—TLC gestures at sexuality but rebuffs male gaze (RT: see also Anaconda!). Madonna’s appropriation of voguing from LGBT community. J-Setting comes from historically black colleges with a marching band and auxilliary section in the front with the moves: gay men reproducing feminine movements: Prancing J-Settes.
Gender as performance, Judith Butler: think of choreography as gender performance and vice versa. Powerful strategy for transforming codes and conventions in dance: continue to exercise discursive agency through re-presentation and reimagining of established contexts.
Charles Colman, New York University School of Law – Patents and Perverts
Project started with investigation into fashion ©. Lots of issues around adornment/gender. Fashion has meant women since about the turn of the 19th century in Anglo-American culture. Effeminacy more broadly as a concern: often serves as a way to police patriarchy. Self-imposed restrictions. (RT: I think of Mary Anne Franks: How to Feel Like a Woman, or Why Punishment Is a Drag: “Law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women…. One could take the claim, as it were, on its face: It is terrible to be treated like a woman. Alternatively, one could read a presumption into the claim: It is terrible for a man to be treated like a woman. … Unfortunately, the second reading—what I call the gender transposition reading—is the more common and dominant one.”)
Oscar Wilde: not known as a “homosexual” since that concept wasn’t yet invented—a sodomite. His diseased behavior was retroactively mapped onto the decorative objects/aesthetics people in the movement he was involved in had championed. Henceforth it was dangerous for men to display an affinity for unnecessary ornament. [Relation to imperialism/racism: men of other races/cultures often condemned for their own forms of ornament?]
Piece argues that this discomfort with design mapped onto the design patent cases. Decorative is opposed to dishonest. Useful/useless. Design patent rhetoric, though starting off neutral (passed 1842), eventually takes on this connotative cluster of value hierarchies. Judges make clear that they don’t like design and can’t tell things apart. Designs aren’t valuable. Defer to experts when the designs are “feminine” but analyze in great detail when the subject is a saddle. The central theme, which begins to determine more and more cases, is that objects associated with women = deference to experts or dismissed in value entirely. Cigar case = nuanced sua sponte analysis; not other things. Second Circuit was the court of last resort in most cases because SCt stopped granting design patent cases after Oscar Wilde. Second Circuit gets increasingly outlandish in characterization of designs before it. Case where 2d Circuit says that ties are bought not just b/c of their utility to the wearer (CC: query what that might be!) but b/c of their appeal to “others”—says that the purchaser is often a wife or sweetheart.
Homophobia/fear of perceived effeminacy related to analysis of design patents. Distorted the jurisprudence that basically erased design patents from IP landscape, dispersing claims that would otherwise be made to © and TM. Judges were performing gender norms for their audience, which had an impact on the law. Demonstrating masculinity by not engaging substantively with subject matter.
Calboli: This is a very specific US/Canada approach. In Italy and similar jurisdictions, ornamental design has been strongly protected even before registered designs. Value of protecting beauty, design, good food: quality of life issues.
Colman: often interest in French things or Asian things was read as effeminate—suspect or ugly.
Craig: In Canada, we draw on English background but are next door to the US; but also we have Quebec and civil law influence. Canada protects performers’ rights, including moral rights for choreographers and performers. But there’s still a clear delineation between the copyright and the neighboring right. Parsing the contributions to figure out what the performer’s right is and what the choreographer’s right is.
Rosenblatt: you both talked about “negative spaces”—dance and fashion have functionally opted out of the IP system. Cause, effect, something else?
Craig: not clear if we’re not using it because it doesn’t fit or whether it doesn’t fit because we haven’t been using the right © concepts. Doesn’t need to be answered: there’s a clear mismatch which makes legal structures difficult/awkward, which then creates space for dynamic evolution in the art form, thriving in the absence of protection. Canada: design does extend to fashion, but it’s unused. There’s just no point pursuing registration and litigation because things happen so fast. Where you have a gap between a way the creative community perceives its activities and what matters, and the way the law works, the law is just irrelevant. And irrelevance allows vibrant evolution.
Colman: Design patents were created mostly for stove designs in the US. Even then, though, they said the arguments applied w/equal force to creators of garments. Rhetoric changes over time from “designs and inventions” to “designs” and “inventions”; clear migration over time to designers trying to use misappropriation or copyright. Cheney Bros.—maybe the subject matter didn’t seem important compared to news. After Cheney Bros., though, you saw more trade dress claims—so doctrine & legislative inaction pushed the fashion industry in particular directions.
Peter Jaszi: Not sure choreography opted out entirely—selective. Some owners of choreographic rights enforce them very vigorously and are widely feared. The most is the Balanchine estate. Does the work give you any insight into current US controversy over copyrightability of social dance?
Craig: true, not entirely opted out. Only in the dead white man’s estate have we been able to fit the © romantic author concept—it’s not an accident that Balanchine is treated as the lone genius. Contracts also presuppose copyright ownership, which tends to be how choreographic works are licensed. There’s not much litigation, but the contracts are much more inclined to require attribution and some degree of creative control. A moral rights understanding rather than proprietary/exclusionary one. Social dance: it’s not clear what an anti-social dance is—is it social because it’s traditional/historical, or social by its nature? Original arrangement of steps—boundary setting is very difficult b/c we have a hard time explaining what makes dance, dance other than that it is useless.
Colman: Sarah Burstein says that it took a while for Americans to figure out what design was; turned out to be stuff that wasn’t a sculpture, wasn’t X, wasn’t Y—the salon des refusés. His work suggests an additional explanation. Clothing is also embodied, with symbolic or spiritual power; people react to dress as to almost nothing else b/c it’s immediate visual representation of identity before you say a word.
[for Craig: Performance and the idea of the supplement in theater—one performance in a chain of performances—that’s the one piece I’d love to see added to the choreography paper. Cf. Francesca Coppa, Writing Bodies in Space.]
[1. Compare what happened during the same period in TM, growing protection for trade dress though also skepticism about value of TM: more acceptable because language of psychology and commerce, specifically because of the idea of the advertiser controlling the consumer rather than the consumer choosing fripperies?
2. So does the turn to design patent represent another step in the feminization of America? Or does a billion dollar verdict automatically convert the topic to one of masculine interest, the same way computer programming switched in value when men started to do it?
3. Comparative analysis: design patents in other countries? Does that track with masculinity and its performance in other countries?]
Colman: notable lack of commentary on the fact that design patents vanished. Janis & DuMont are the exception and he wants to offer an alternate account. DuMont identifies nuances he identifies as “mishaps” but these terms like originality etc. are susceptible to so many interpretations that he finds it difficult to believe that they aren’t a deep level implementation of norms.
Design patents began being used more when 2d Circuit began upholding them (late 50s/early 60s) and when Fed Circuit was created—so it precedes the billion dollar verdict.
Panel III: Gender and Intellectual Property in the U.S. Federal Courts
Moderator – Christine Farley, American University Washington College of Law
Jessica Silbey, Suffolk University Law School – Intellectual Property Reform Through the Lens of Constitutional Equality
Qualitative work: The meaning of progress to artists, given the constitutional demand. A complementary part of the project is case-driven. Not going to talk about one set of cases: total market failure/hold-outs. Will talk about SCt cases; reading them through the lens of “progress” she sees something new and strange. More than progress, she sees an emphasis on equality and distributive justice. Not sure whether she cares whether it was conscious or not, but is sure it exists.
Eldred: Incentive story doesn’t make sense to IP lawyers for retroactive term extension. Plus the marginal increase in reward in present dollar value is meaningless. Court had nothing to say to those arguments. Ginsburg could’ve just applied rational basis review—but she didn’t really do that either. The justification wasn’t incentives; it was equality—treating likes alike. Aristotelian norms of formal equality. She saw no reasonable basis to treat current authors differently from future authors. Words like “parity,” “alignment,” “alike, “evenhandledly,” “same,” “equity,” etc. dozens of times. Opinion spends a lot of time talking about authors and how it was reasonable for authors to expect they’d be treated like new authors should new benefits arise. This isn’t about incentives to create or disseminate, but dignity of equal treatment absent a good reason to deviate. Flawed on its own equality terms: fundamentally ignores that the history of democratic lawmaking was not representative. And assumes that the class of authors is similarly situated: people who receive royalties from traditional publishers. But it’s not. Failed to consider other © stakeholders and left them out entirely despite its formal inclusivity. Classic problem of formal neutrality: mechanically reciting like/unlike without comparing the history/hierarchy of classes. And Justice Ginsburg knows that.
That’s what Golan v. Holder is about: antisubordination. Foreign authors were treated unfairly in this view. Reparations: this is an affirmative action case. Special benefits to people who were injured/harmed as a group in previous regimes. Aims to eradicate imbalance of not having had © in the first place as a result of power imbalances. If we don’t understand that’s what’s going on, we will make the wrong arguments. But 104A causes real harm to people who are now forced to pay when they haven’t before, unlike discriminators who suffer no harm we are willing to recognize when they are forced to stop discriminating—Ginsburg thinks they deserve to have paid and were just free riders. Ignores harm to majority/stakeholders: rights exist only for © owners/romantic authors.
Can do this analysis with a lot of different SCt cases—it’s a key piece of the IP cases.
Sandra Park, ACLU Women’s Rights Project – A Feminist Challenge to Gene Patents: Association for Molecular Pathology v. Myriad Genetics
Deliberately feminist approach (project founded by Justice Ginsburg). Gene patents first granted in early 1980s. Ultimately granted patents on isolated DNA: gene excised from naturally occurring chromosome, regardless of individual from whom it was taken. Isolated DNA coding for BRCA1; and for any and all methods of comparing or analyzing sequences whether or not Myriad had developed the method. Locked up examination of that version of the genome because you need to isolate the genome to do any analysis, and method claims reached the methods you’d want to use.
Challenge over long time: result was unanimous ruling that isolated DNA is a product of nature, though cDNA is not. Lots of discussion about what Myriad means for §101, but she is interested in meaning for feminist advocacy. How to center women as stakeholders/agents for change? Most patent litigation involves suing competitors/alleged infringers. They tend not to have an interest in challenging a whole category of patents; may have similar patents of their own. So we thought about our larger goal of ending PTO grants of these types of patents—joint project w/ ACLU Speech, Privacy and Tech Project—spent a lot of time thinking about impacts on women. Harms to women seeking cheaper tests or tests their insurance would pay for. After Myriad got the patent, sent C&Ds to labs offering testing with different methods than Myriad, often cheaper; forced them to shut down.
There were a lot of silos: hadn’t had many conversations about the overall impacts. So we assembled plaintiffs with personal impacts—patients who had issues with costs of diagnostic testing; testing quality/Myriad didn’t search for mutations well-known to be connected to higher risk so that a negative result wasn’t as useful as it could be; ability to access confirmatory testing/second opinion. Other concerns about data sharing and research—Myriad amassed a huge amount of data and decided not to share it, with big impact on patients who received a result that they had a variant of uncertain significance. Interference with new technologies/downstream innovation.
Standing: the Federal Circuit found that only one plaintiff had standing, a geneticist who’d received a threat from Myriad. Important takeaway: having patients as part of plaintiff group still ensured there was still a spotlight on the nature of DNA as part of the human body. Not just a chemical, but info crucial to their families and themselves for decisionmaking.
The DNA was framed as if it were in isolation. We challenged that framing directly. Isolation was a problem: allowed permissively granting patents on natural products; distanced patented DNA from people’s bodies; used perspective of chemistry to mask patenting of biological information; obscured others’ contriubtions to discovery and the need for subsequent work.
Revitalized an area of law long dormant. Example of how to bring feminist practice into IP: divide between the patent bar and women’s rights lawyers.
Farley: Usefulness of constitutional frames in advocacy for better IP. Park tells a positive story about that. Does that contrast with Silbey’s story? Also wondering about how this kind of advocacy looks in TM law—maybe a TM disparagement case. How does the frame of equality help, if it could? [I’d think corporation/defamation analogy would be a useful frame.]
Why pick this case? Explanation sounded like “we wanted to have a constitutional challenge to patent law”—but why women?
Silbey: decision and oral argument in Myriad did not have the story being told by this narrative.
Park: Informed the case, public education around these issues, the SG’s brief/amicus interest. There was a legal resistance to the constitutional arguments; it was vital in the district court and helped us justify talking about women’s experiences, which we argued were relevant to what progress means in this context. That said, there was very little to look at for patent law/constitutional arguments. For the Federal Circuit, they weren’t interested in that aspect. Discussion moved away from more gendered understandings, but the stories/experiences were animating the reasoning. Our sense of our own bodies was really being debated at oral argument when Justices grappled with analogies about the technology.
Silbey: struggling with whether this is just a way of thinking that’s in the air, or something the Justices do think about in the background without having them formally introduced into the argument so it’s just coming in as a justificatory mode. Petrella, Justice Ginsburg mentions Lily Ledbetter case, where it’s different in that you didn’t know about the discrimination—she’s pro-author and wants the author to have the choice of when to sue. Kirtsaeng: a low-protectionist win, and the value of price discrimination is at issue; one of the things that helped was that, though we were thinking about market effects of price discrimination, there was a lot of stuff in the briefs about how a contrary result would decrease access. People do care about these doctrines—having the facts present, even if not mentioned in the case (Kirtsaeng had a lot of footnotes about this). Different organizations that testify, bring those facts about access and status/hierarchy, can change how we advocate.
Rosenblatt: Progress may be a malleable word with facial neutrality that ends up being exclusionary. Park says progress is more than isolation. Silbey says it’s been taken to mean “more,” but it’s really meant “more of some things and not others”—more commercialization, not more research/expressive work generally. Using progress in an exclusionary way comes out of both of your papers.
Silbey: Has thought of progress as a blank check to Congress, which gets filled in to replicate the status quo.
Chon: colorblindness always has a privileged position. Formal legal equality—author-privilege Ginsburg embraces in © she rejects in race. Whiteness as property, Cheryl Harris, is also relevant. Aligns w/what you’re trying to say: the liberty interest represented by property is dominant, which forces the equality interest to mutate.
Silbey: Scalia in Aereo is all about treating likes alike; Ginsburg is making deliberate choices.
[Amy Adler has great articles about the unspeakable feminine body in Supreme Court jurisprudence. You could get a great contrast between those cases and Campbell, actually.]
[Because Silbey was talking about her interviewees, now I want to write a piece on the wise author who asks “What are the IP laws?”; the wicked author who asks “What do these IP laws mean to you?”; the simple author who asks “what is this?”; and the author who does not know how to ask.]
Kara Swanson, Northeastern University School of Law – IP and Gender: Reflections on Methodology and Accomplishments
Literature review: from the footnotes to the text. Personal experience writing and publishing in gender & IP—future orientation of how we can make progress. (1) Translating insights of feminist/queer theory into IP and info law; (2) transcend boundaries to create new insights; (3) transfer these to scholars who don’t write or think about gender, to legislatures, to classrooms, to the PTO.
Accomplishments: Naming and claiming the past to celebrate, use, and value it. Gently urge that we harness the power of the citation to cite each other. These symposia have been a rousing success. Stuff, community, and personhood, as Rosenblatt says. Results in 3 distinct areas. Bibliography of IP and gender scholarship; this is absolutely endless especially with int’l and interdisciplinary approach fostered by this group. 33 North American law reviews – ½ of law review scholarship on IP & Gender was published in AU’s journal, and others got their origins here. Other scholars first published here have gone on to write more in the area. Starting to pop up in general and tech law reviews; Irene Calboli’s new book on diversity in IP. Lively area of research, building on each other.
Content: where to go next? 3 categories of work now: (1) Analyzing gender disparity in IP systems; this is old news to us but not to others. Women receive fewer than 10% of US issued patents. What about rates of © registration and TM registration by women-owned businesses? (2) Analyzing IP claims that involve gender and sexuality. (3) Analyzing the gendered nature of IP doctrines themselves. Most important: critical lens to IP as a legal system—mapping the connections, and how IP perpetuates gender/heteronormativity. Those dynamics are so unknown to the mainstream in IP that even raising the issues can generate huge anger and controversy. Women’s creativity: supposedly broad definitions of creativity become narrow! IP law is no different than any other area of law in being affected.
The personal is political: experience writing/speaking over 10 years. There is resistance to the idea of connections between IP and gender. To get to our goal, developing IP that promotes social justice, we need to persuade, break down resistance, and shift conversations. How have we not yet succeeded? Translation, transcendence, and transmittal. Translation: taking knowledge from one discipline and bringing it to another; bringing feminist legal theory to a room of IP scholars. This is preaching to the choir here, but we can practice translation by taking our scholarship to fora outside our comfort zones, whether that’s to law & econ-dominated conferences, or feminist conferences, or even conferences w/few or no lawyers. We can increase visibility.
Transcendence: Now that we know how to map the connections, we need to recraft IP rather than simply describing connections.
Transmittal: How do we persuade? Not just translation but transmittal—broadcasting to audiences divided by methodological and epistemological commitments. Scholars who don’t work in gender, students, and legislatures. We need to think more about this.
Example: her historical example of a classic patent case w/a female plaintiff, Egbert, about the corset. Teaching the case provoked giggles from students, because the corset seemed erotic and trivial. Casebook had vaguely salacious statement about her relationship with the inventor. Placed the article in a feminist journal—but need to communicate w/patent law community. Perceived as being w/o broader implications other than background color; law and economics influenced patent scholars just rejected historical methodology. Project’s origins in the classroom: the disturbing way it’s portrayed in casebook and in classroom. Need to reposition case—emphasizing sex/gender in this case seems to further trivialize and diminish Egbert. Now, can teach against the casebook. Also, scholarly publication may also require tweeting, congressional testimony, other written fora to practice transmittal. How can we reach the audiences inherently most resistant to our conclusions? Feminists must marry theory to practice, an orientation familiar to lawyers.
Silbey: Hierarchy of methodology within the study of IP is an issue.
Swanson: Yes. Goal: convince empirical legal studies folks that historical work is empirical. More than counting things.
Chon: How to make this more inclusive? Transmittal is also about creating a larger community to hear the conversation.
Swanson: Mosaic conference at Marquette: Practitioners included.
Moderator – Meredith Jacob, American University Washington College of Law
Jhessica Reia, Center for Technology and Society at Fundacao Getulio Vargas (CTS-FGV) – DIY or Die! Gender and Creation in Marginal Music Production
Straight edge movement in Brazil: associated with vegetarianism, anarchism, as well as music, not consuming drugs/alcohol. Collective Verdurada runs a festival in São Paulo. Largest DIY event in Latin America. Talks every day of the festival about direct action, environmental issues, sometimes gender issues. Ideology: anyone can be in the audience and anyone can be on the stage (maybe). Internet is making things easier to spread the news, arrange snows. Broad support for downloading music: to check if they like it, if it’s unavailable to buy, or from major artists who are already rich. But not OK to make and sell CDs. Supporting the scene is very important. Go to the shows, buy the merchandise even if you download.
Bands at the festival are mostly male, never all female. “Angry energy” at a hardcore show; mosh pit. Few girls in the mosh pit. You hear men say that girls come for the boys. The ideal of autonomy—anyone can come here—is not exactly true. Lesbo-anarchofeminist scene: many women started to leave this scene and go to their own, separate track. Yet women are also present: organizing, disseminating information, attending. Mix of very progressive guys and stereotypes. Also issues surrounding LGBTQ participation/discriminatory attitudes. Ideology is that “girls don’t play because they just don’t want to play.” Some men leave when women play, or when there’s a talk on abortion. General resistance to admitting a problem existed. Copyright or lack thereof isn’t the issue in marginal cultural production: it’s not inviting women, silencing women. Alternative licensing/access is very important.
Continuing struggles: revenge porn incident in the scene; anarchofeminists arguing that “we don’t need to be with these jerks.”
Betsy Rosenblatt, Whittier Law School (and Rebecca Tushnet) – Transformative Works: Young Women’s Voices on Fandom and Fair Use
Turned 80 pages of information into our chapter for a book on girls & eCitizenship. Some data we turned up about fandom participation. Think about what people are creating when they are creating. Sometimes: think of it as stuff—fabric, film, stories. Or: they’re creating communities: family, family analogue, group identity. Or: they’re creating themselves. All of these things are happening and more! In our community, this sense of community and sense of self were crucial elements in what the creative process was doing. Self-actualization and training ended up as big elements of the creative process.
Our fandom: media fandom, focused on creating fanworks, online communities. Grew with the internet; overwhelmingly female—not the only kinds of fans, but it’s a massive set of interlinked communities, with tens of millions of works. DeviantArt, Vimeo, fanfiction.net, Archive of Our Own, Livejournal/Dreamwidth. Focused on making noncommercial works, although there are occasional crossovers. The fact that the media has latched on to that demonstrates how exceptional that is v. common fannish gift economies. These are pretty uncontroversially fair uses. They transform meaning; they’re noncommercial; usually take small portions; don’t compete in original market and tend to grow that market. 10s of millions of works on the internet.
OTW established in 2007 to promote acceptance of noncommercial fanworks as legitimate creative works and to preserve the history of fan culture and protect/defend fanworks from commercial exploitation and legal challenge. PTO/NTIA put out a Green Paper asking for commentary on remix. OTW called for personal accounts of how fanworks affected lives; received 107 responses and submitted our response describing themes we found in them.
Limitations: we couldn’t confirm the gender of respondents, but we depended on self-identification, which was what mattered to us. Also a self-selected group; we didn’t ask about the drawbacks of creating fanworks and didn’t get answers about that. This piece focuses on benefits for young women and girls, though there are also many benefits for men/boys in creating fanworks, and we received responses from many whose genders we couldn’t identify reporting similar benefits. But many of the responses were very specific to gender and sexuality.
Trends: (1) Women and girls stated that creating fanworks provided unique opportunities to develop social and professional skills. (2) Broad concepts of fair use/fair dealing that permit noncommercial derivative works promote expression by often marginalized speakers and offers benefits that may not relate directly to the stuff they’re producing.
Fandom helped them understand themselves. Fandom as rescuer—often as saving lives: through fandom and fanworks, they found they were not alone, found a voice, learned to gain confidence in themselves and their opinions. Women reported that fandom allowed them to talk back to a mass culture that didn’t adequately represent them—claim agency around popular narratives; explore gender & sexuality by changing those elements of popular characters; allowed them to explore race and disability when the mass media gave them few examples of girls of color or disabled girls. Although fanworks are often derided in mass culture, that derision seems bound up with negative attitudes towards feminine pursuits and young women’s attempts to make themselves. As women pointed out, fanworks gave them the opportunity to start bad and get good. Young writer is learning to find her voice—that’s the benefit! Reminds Rosenblatt of “fake geek girl” narrative in other areas of American fandom.
Remix also taught important skills, including language skills in translating fanworks; writing and editing skills through use of “beta readers”; critical thinking skills in looking behind narrative to find their own critical approaches; visual art, video editing, programming, other technical fields as they learned to create the works they wanted to see and share; many credited creation of fanworks with later career success.
Both transformativeness—the fact that these works were transforming the meaning of source works—and noncommerciality were crucial to how fan cultures manifested. The law favors such works. Hard to say cause/effect, but having a law that favors these things tends to promote the building of these self-actualization and skill-building communities. You don’t have to cater to a commercial market to create, so fanwriters could be more concerned with self-expression; knowing they had a built-in market let them experiment with forms and styles and content. Reward was support and feedback, which depended on culture of giving and learning, as well as empathy. This isn’t a priority in a lot of commercial endeavors.
Self-empowerment: you can tell the story the media isn’t telling. Remix generally tends to come from underrepresented groups.
Implications for law: important not to require permission. Important to allow fans and others to use sources as they wish to, not as copyright owners would wish them to be able to. Uncertainty in law tends to silence those who feel disempowered, so greater certainty would promote the selfhood and community-building aspects of fanwork creation; seeking permission creates boundaries and barriers to entry. If you think you might have to seek permission, you might just not make the thing.
Jacobs: Posit this: straight edge community is defined against all the things it isn’t: drinking, eating meat, etc. Thus you have to check all the boxes to belong. High conflict nature—easy to fall outside. Fandom is less aggressively oppositional and more simply separate, which has provided more entry points to the community. React?
Rosenblatt: the Q of is fandom a counterculture? may oversimplify. Writ large, it is a counterculture in that it challenges the idea that media is for consumption, a one-way street. But that idea of talking back to culture is now permeating more broadly. Media fans often think of themselves very much as part of a broader expressive unit—everyone is creating, the writers of the show and us too. (Show writers don’t think that way, she notes!) There are a lot of box-checking internal norms in various fan communities, though. She identifies as a Sherlockian, which is a different fan community from “Sherlock Holmes fans,” though crosspollination between the communities has been very productive. They have different boxes to check to fit socially and culturally. Internal norms can be quite oppositional to the law and quite definitional; one widespread norm is that, while transformative creation is presumed and appreciated, plagiarism is evil and attribution is very important.
Reia: she had to prove she wasn’t a journalist to be allowed to research the Straight Edge community. Subcultures don’t really have fixed boundaries: people have different identities with overlaps and sometimes they create borders. They’re trying to destroy the system—try to be far from regular people, and yet that often presses them into a different kind of conformity/rule system. You can’t do drugs, but you can drink a lot of Coke. You can’t drink alcohol, but you can eat at McDonald’s three times a week. What it is to be straight edge is complicated.
Charles Colman: Rosenblatt and RT reminded him of Silbey’s book: unabashedly qualitative work. What are the legal and nonlegal challenges? Supernatural actually responded to characters being cast as gay in the fan world—tolerated but dismissed. Is that more damaging than legal action? Are the writers mostly men? Fans as community of women mentoring each other—absence of mentoring/teaching relationships when people don’t align in their identity groups.
Rosenblatt: there are a couple of different types of challenges. Legal: no lawsuits (but occasional objections). Nonlegal: respect challenges. There is a lack of respect but it may not be what you fear it is. There is a sense that it is tolerated use and therefore women who make these works are marginalized; but there is increasing recognition that fanworks are really important to the market for the media they support. So they may not respect the quality of creation in the first instance, but they respect the growth that comes out of it. The idea that people who start making these works will make works ultimately that are establishment-quality. (RT: Of course that need not be your goal! Fandom is big!) Writers’ rooms are usually majority male; the mentoring systems exist and they are not always explicitly gendered—better than law firms; but the hiring isn’t better than law firms because the execs are men and often more skeptical of young female writers than of young male writers.
DMCA challenges: often fanworks are ignored; but when machines do searches, fair uses get caught in the net. It’s more common for women to say they don’t want to fight a takedown because of even a small risk; men are relatively more likely to want to fight (and to want to commercialize their fanworks in the first place). When we get queries from people who have commercial projects, they more often come from men. Women are more likely to just want to write noncommercial works.
Carys Craig: what happens in the transition from the community to outside? “Pro” writers—how does that affect relations in the community? What about the understanding of copyright norms and potential replacement of social norms with legal norms?
Rosenblatt: the crossover isn’t just from TV fan to TV writer; it’s often fan to professional person. People who learn video editing and go on to become video editors, not necessarily for TV; technical writing/academics also benefit. Shifting cultural norms: it may happen with a shift in status/perceived status, but not sure it always shifts. Many TV writers understand that what they are doing is a form of fanwork to what came before, but they really want their residuals and they want to be recognized as pros.
RT: I’d say culture beats law almost every time, just as culture beats nature almost every time. People believe the law is one way because their culture induces them to do so.
Panel I: Community Structure and Women’s Leadership in Traditional Cultural Production
Moderator – Margaret Chon, Seattle University School of Law
Helen Chuma Okoro, Nigerian Institute of Advanced Legal Studies (and CC Nigeria), Traditional Knowledge, Intellectual Property Protection, and Matriarchal Dominance: The Case of Traditional Textiles in South Western Nigeria
Research looked at how to use communal TMs to promote products in Nigeria, esp. textiles. Findings: very difficult to use communal TM to promote textile sector particularly, because of structural organization of sector. Characteristics of textiles: traditional knowledge; intergenerational in nature. Good reputation: markets exist for the fabric (adire). Method of production is natural, organic, by hand.
A market leader, matriarchical structure: mother figure, very influential. How can that relate to IP? There’s an idea that traditional knowledge is inconsistent with traditional IP. But traditional textiles are fundamentally produced for commercial purposes, so the idea of noncommercial TK is not relevant; the reputation is what needs protecting. Everyone wants to benefit from the reputation, so there’s lots of imitation. Traditional textiles are more expensive to produce; have difficulty competing with copies/synthetic imitations. Many families therefore may abandon the production. Need incentive to continue in trade, and IP could provide that. They understand they do have some kind of property/right, though they don’t call it IP. They do share designs, but against outsiders they won’t share. Maternal line transmits the knowledge.
Small, fragmented industry of producers. Traditional model: result is lots of competition. Communal methods can work better—protect designs individually by copyright, individual TM, but lack enforcement capacity. Nigerian TM act dates from 1965, substandard. Protection for certification marks but not GIs.
Market mother may be able to provide the necessary structure to make sure standards are maintained, work hand in hand with standard organization for certification marks. If that works, can be transplanted to other sectors.
Lorraine Aragon, University of North Carolina, Cut From the Same Cloth? Reimagining Copyright’s Relationship with TCEs and Gender in Indonesia
Between 2003-2010, weaver argued w/district headman about his plan to © a textile design. Nela’s argument wasn’t technical/legal but about needs & customs of women. Widely shared traditions exist across Indonesia; she was defending what women of the region (not the nation, a recent invention) customarily do—share designs/knowledge. District head predicted econ. benefits to recently created district; drawing on recently enacted law saying state holds © over folklore and people’s cultural products—district’s procedures could be “cut from the same cloth” as national law.
Offers ways to rethink authorship and property models in light of gender, in a nonwestern context.
Textiles: how do the weavers view claims over their work? In Indonesia, this is women’s gendered domain (also pottery); where other TCEs are more male-controlled. Convergence of IP and cultural property (CP) models in developing nations—discussed as provincialization of IP (though all IP can be discussed as provincialization). Other literature calls it indigenization of IP. But that doesn’t work for Indonesia; may not work anywhere that lacks indigenous group membership/enrolled tribes/clear lines of authority/a state eager to appease indigenous groups. There’s no legal category of indigenous people in Indonesia, but over 300 ethnic groups.
Reverse anthropology: look at things w/logic of local people. Materiality studies: the spirit/nature/agency of possessions.
These textiles are handmade, used for ritual purposes/exchanges; regional market, sometimes internal or external. Internal market is shared and guarded, somewhat separate from external markets. Index ancestry & community status; you wouldn’t ordinarily want to make a design from another group. Some dyes take years to make. Producers describe themselves as conduits; say they learn the most complex, dangerous designs in dreams. (Conduit description is not limited to women—male producers in male genres say the same thing.) Splitting agency outside the self; carrying on traditions. They do make claims for themselves, but not ownership or origination claims even though they might be adding creativity the west would consider copyrightable.
Convergence of IP and CP in Indonesia and several other places. Variable dynamics of this convergence often go unrecognized. Domestic concerns change response to TRIPs. Settler states: North America, Australia, New Zealand—different process than in postcolonial states. Settler states: indigenous groups can advance political goals through IP claims. Postcolonial: individual producers have weak status—CP promises the actual producers very little, even as others get excited about it. Idea of culture as property is not of interest to producers, because both IP and CP deny their distributive practices/informal management of system.
Indonesian law: state has © in folklore and people’s cultural products owned in common; includes stories, dances, clothes, sculptures, handicrafts, jewelry, traditional weavings, etc. with no time limits on folklore protection—very big state claim. The design is not unfamiliar in Indonesia: echoes postcolonial eminent domain land law. In history of SE Asia, rulers’ interest was never land/ownership—there was plenty of land. Wanted to control labor. Only when Europeans came in did they look to control land as property. The idea of private property is crosscultural—legacy of Dutch control. Indonesia’s government controls oil; rainforests are being cut down; wants to diversify its resources = shift to CP. Property law is there to remedy waste: idea is that if it’s not owned it’s not being well used—lawyers felt that Indonesians too freely and naively gave away cultural resources to outsiders, so state has to do it for them.
Repercussions of law: allegations against Malaysia for cultural theft of batik, beef curry, dances, etc. Accused Robert Wilson of appropriating a Bugis myth for int’l production of I La Galigo, 2004-2005—he asked for local permission but state said that wasn’t enough. Pursued w/tremendous passion b/c IP doesn’t offer them much in conventional form.
District leaders then sought to © elements of “their” local culture. Flores example on which paper is based is outstanding because there were no “foreign” cultural thieves at issue. District had been formed from other districts; district head got the idea that he could © the “chicken eye” design and collect royalties from weavers who were now outside the district.
Indonesia long defined geographic-political units according to ethnicity and TCEs, part of the nation-building project. In reality, people and TCEs move fluidly across these boundaries.
Weavers said: our ancestors didn’t live only in this new district; techniques are transferred through marriage and migration. We all come “from one bamboo clump.” © will kill the small women entrepreneur—there are so few economic opportunities for women without capital here, but if some women own certain motifs, they lose that.
Other women: customary law is weightier and more accepted than state law. © in state was a solution looking for a problem. The language of the © law is not intrinsically gendered; makes all producers of TCE childlike wards of the state.
Can IP provincialization be done in a socially progressive way that helps indigenous groups? It doesn’t work as formulated in Indonesia. Could positive law support women’s customary authority over TCE production? Unless it does, we can expect them to walk away from it as much as they can.
Chon: Three major themes: (1) diversity, (2) hybridity, (3) pluralism. Take us away from the metaphor of war we’ve worked with in the © field for so long. Oppositional relation between free expression/exclusive rights—very tired as a metaphor. Hybridity, heterogeneity, multiplicity instead—but conflict and tension are still inherent in those relations. This isn’t shiny new happy world, but instead we have many things to figure out.
Okoro’s matriarchal figure: variations/nuances on this figure. Existence of multiple markets: not just global postindustrial mass markets. We need to be more like antitrust/competition lawyers in looking at the market at issue and its particular needs. Also: difference in power structures and leadership. In Nigeria, power shifts to women in ways that the typical IP model doesn’t recognize.
Hybridity: both papers talk about TK or CP as it intersects/hybridizes with formal IP categories, particularly TM and ©, and how that affects traditional cultures: Okoro is a more positive story, Aragon more negative. Okoro = fill the needs of a high-end market if it can be connected to that market. What could be the incentives to allow traditional weavers to continue work? She identifies certification mark; what really jumped out in paper is the idea that these textile production units are family based—going to biological daughters rather than daughters in law. Deeper commitment, as a result, to the production unit than in a typical business unit, which we might want to protect. Can this deep commitment be translated to a highly decentralized, global market. But one challenge is there’s no enforcement capacity for small local entrepreneurs and little capacity in the IP enforcement system period.
Final challenge: how do you signal the qualities—high quality, handmade, organic, credence attributes—with a relatively shallow right, TM?
Aragon: (1) Social norms, or IP without IP. (2) Second enclosure movement: eminent domain laws have an analogue in use of © for TCE. Jamie Boyle has identified this dynamic in West. (3) Facially neutral laws with differential impacts, as in this case study.
Aragon offers a solution from the people: look at what they’re doing creatively and think about how to address that production model. Indigenization model doesn’t work in the context of Indonesia, v. New Zealand with a vocal minority community and a state eager to appease that community’s legal interests. That goes to hybridity: local circumstances may be very different from dominant models. Also: these textiles are means of reflecting and indexing one’s place in the world: how do we hang on to the local identity in a globalized, marketized world? Use of IP to assert national sovereign power, vs. Malaysia for example; used as a way for Indonesia to assert its muscle in the world. How does that work versus industrialized countries that might appropriate and monetize—Robert Wilson? Power dynamic of Western grabbing & not sharing benefits.
Finally, Q posed is whether and how IP can accommodate communal, local practices. State-owned model Aragon gave is is clearly not the ideal model, but what is the alternative?
Betsy Rosenblatt: she saw distinctions between ingroup and outgroup dominating, and Qs of how we define the ingroup. The ingroup in both cases seemed perfectly capable of governing itself—Q is how they protect selves from intrusion/appropriation by some outside group, whether industrial copiers or the state. But Indonesian state saw the ingroup as the whole state, and wanted to protect against other states.
Okoro: the ingroup isn’t working correctly in Nigeria now because it’s very hard to protect from outsiders/globalization. Need to go beyond the ingroup model, and IP/TM is a way to do that.
Aragon: some communities are being flooded w/cheap Chinese (or Indonesian) knockoffs. Bali deals w/it by info: trying to educate the tourist about machine/chemical production v. the real thing used in rituals w/2-year dye made from plants. There are market conditions where people go to the cheap version b/c that’s what they can afford. SE Asians in general think the gov’t isn’t helping them with import issues/trade issues; they don’t specifically care about IP but about local support/trade laws.
Jessica Silbey: Nigeria—concerns over integrity and misuse. What counts as misuse? Just copying or a particular use?
Aruna Ranganathan has been doing ethnographies in India of local craftmakers—experiments to figure out how they market their work differently. They will sell their work for less to people who appreciate authenticity; charge more for people who seem not to care whether it’s an imitation. Using market segmentation to preserve status, but in the reverse of what we’d normally see. Shows what people care about in different communities re: how their work is exchanged and experienced. Seen anything like that kind of price discrimination used to preserve status, identity, or value?
Okoro: Economic advantage is the primary concern. There are some textiles with symbolic meaning, but that is not as important here. Profit means that misuse is knockoff/passing off.
Aragon: price discrimination goes on all the time in Indonesian markets, but it’s more what we expect—foreigners/nonrelatives get charged more. May make indigenous designs with cheap dyes so that local people could afford them. Indonesians wanted to control their own designs; didn’t care what foreigners did and kept their productions separate; misuse was generally not of great concern, with a few exceptions.
Irene Calboli: What do traditional people want? Everything: tradition, control, market access, the ability to set prices—they want what Westerners want; they want respect for their IP but they don’t care about knocking off TMs from the west. They see the value of the model, but understand that w/in the bigger community they have to play a different game. How IP can help is difficult—GIs are ways to guarantee geographical region origin, with variation. If the fake Louis Vuitton helps sell the real ones, the Pier One knockoff may help sell the authentic versions—Pier One is often the first access. Add to this the problem of corrupt governments. Also the role of UNESCO certification—batik has this certification; tangible and intangible IP are eligible, and gives some legitimacy.
Aragon: that’s why Indonesia says UNESCO gave them the copyright and Malaysia can’t do it. (Even though Calboli points out that is not what UNESCO did.)
Bali is really different from the rest of the country: commodified genre may worry about knockoffs; others say they want more gov’t support for things that are disappearing, but they don’t want access to law because they know that law doesn’t function for them—not looking to sue (or be sued). Gov’t level and local producer level must be distinguished; semi- or partially-commodified markets either at the regional or int’l level. GIs might be something to think about, but not what they’re thinking about.
Okoro: Agrees they want everything, but textile producers want more economic advantage primarily. Just like every creator! Dignity to some extent, but at this point they’re more worried about economic prospects.
Peter Jaszi: To what extent do the modes of regulation discussed interplay with the imperative for preserving space for dynamism in traditional culture?
Aragon: Copyright doesn’t seem to be the right measure. Registered designs were ancient but being claimed by corps/big families. I would look for something grassroots, which isn’t there yet.
Okoro: the TM model would allow evolution w/in a controlled environment rather than being overly influenced by economic interests from outside. Just trying to meet demand from outside kills authenticity, but creating incentives to maintain traditional quality allows a different basis for competition.
Jaszi: discusses producers’ difficulty negotiating “living wage” price from Pier One—a problem not particularly susceptible to IP, but perhaps to consumer information and some militancy by well-meaning consumers. Even if Pier One is an entry point, right now those outlets are killing rather than sustaining the communities whose goods are being exported.
Chon: a problem of information flow rather than IP per se.