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.http://tushnet.blogspot.com/feeds/posts/default?alt=rss
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 Aereois all about treating likes alike; Ginsburg is making deliberate choices. [Amy Adler has great articlesabout 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.]http://tushnet.blogspot.com/feeds/posts/default?alt=rss
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.http://tushnet.blogspot.com/feeds/posts/default?alt=rss
Why The Request By Least Developed Countries For An Extension Of The Transitional Period For Granting And Enforcing Medicines Patents Needs To Be Supported
Shoes are always in the news. From a fashion standpoint, Nike has made headlines this week, with a re-release of the Classic Cortez running shoe (aka, the Forrest Gump shoe) along with the second edition of the LeBronald Palmer. And yes, the LeBronald Palmer is exactly what it sounds like, LeBron James creating a shoe inspired by Arnold Palmer. Or possibly by an Arnold Palmer that kept James refreshed during his stay in Miami. But for those of us who like our News of Shoes to have a legal bent, Converse is there to help.
In October of last year, Converse laced up an impressive number of lawsuits against more than 30 different retailers and manufacturers, including big names like Ralph Lauren, Wal-Mart, H&M and others. We discussed Converse’s use of International Trade Commission proceedings as part of this offensive back in October. Since that time Converse has been slowly reaching out-of-court settlements with the parties, including Ralph Lauren, H&M (subscription required), Tory Burch, and others.
In an ideal world though, a company doesn’t need to file thirty lawsuits against its competitors in order to protect its brand. While the Converse example is a bit trickier because it involved protection of the trade dress of the All-Star shoe, here are three steps brand owners can take to help minimize the potential for infringement and counterfeits of their goods:
- Conduct a domestic trademark portfolio audit. Are all of your important trademarks protected in connection with all of the important goods? If you have well-known product lines, do you have registrations for these trademarks as well as the overall brand? If not, file new applications with the U.S. Patent and Trademark Office. It is possible others have developed, or could develop, legitimate and enforceable rights in confusingly similar marks.
- Record your U.S. registrations with the U.S. Customs and Protection Bureau. The cost is relatively cheap and the benefit can be substantial, especially if your products are susceptible to counterfeits (apparel, jewelry, and electronics in particular). If you have products manufactured abroad, you can provide this information and the Customs officials can identify questionable shipments at the ports – before they are distributed in the U.S.
- Conduct an international trademark audit. Do you sell your products overseas? Do you have registrations in these countries? Alternatively, if your products are manufactured overseas, do you have any protection in these countries? By protecting your trademarks in these countries, you can help prevent unauthorized products from leaving (or entering) these countries, too.
These three steps can’t prevent infringing products or counterfeits from ever entering the U.S. or other countries. Yet they can minimize the chances of a problem arising. In the unfortunate situation that the issue does arise, these actions will provide you with an expanded toolbox to address the issue with evidentiary presumptions in your favor and expanded remedies. In short, they’ll help you get off on the right foot.
Although recognizing that "rail" has multiple meanings, the Board pointed to two patent applications that use the that word in connection with spinal implants. [Two patent applications? Maybe they will be rejected for indefiniteness. How many people read pending patent applications anyway? Why should this applicant be stuck with the usage of the word "rail" made by two third-party patent applicants? Is this the best evidence the USPTO could come up with? - ed.]. According to the Board, these two patent applications established that the term “rail” is "used generically by third parties to describe a structural component of spinal implants and the term will be understood in that same manner when used in connection with Applicant’s spinal implants."
Applicant submitted a declaration of its vice-president, saying that he never heard of the term "rail" used "to describe a member that interconnects screws implanted into the spine." The word commonly used in competitor literature is "rod." The Board pooh-poohed that evidence, observing that even if applicant is the first and only user of the term "rail," the word may still be merely descriptive of the goods.
Finally, the Board rejected applicant's contention that the mark is unitary and a disclaimer is not required.
And so the Board affirmed the refusal to register.
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TTABlog note: In this blogger's opinion, the Board gives entirely too much probative weight to statements made by third parties in patent applications and patents. But then, being a patent attorney, maybe I'm biased.
My point is that just because some patent attorney, perhaps newly-minted and still wet behind the ears and probably not an expert in the technology, while fumbling for a word to name an element in the patent drawings, chooses the word "rail," does not mean that "rail" would be understood by the relevant consuming public to mean what the Board thinks it means.
Text Copyright John L. Welch 2015.
Hollywood Reporter has covered Cohen IP Law Group’s recent lawsuit against Universal Pictures, Seth MacFarlane and other defendants for trade dress infringement and other claims.
Los Angeles Trademark Lawyer
The CAFC's decision in In re Bose Corp. left open the question of whether reckless disregard for the truth is sufficient to make out a case for fraud on the USPTO. [See FRAUD-O-METER above].
This article answers that question in the affirmative. We show that at common law, reckless disregard for the truth has long been recognized as sufficient to make out a case of fraud, and that has been carried over to several federal statutory contexts. Under the long-established rule that common law terms must be interpreted consistent with the common law absent some compelling statutory language to the contrary, the Lanham Act’s cancellation-for-fraud provision must be interpreted as extending to recklessness.
The article also examines whether the question "might depend on the form in which particular representations are verified to the Trademark Office." And it suggest some changes that the Office might consider making to its verification forms to clarify this issue.
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Text Copyright John L. Welch 2015.
In re James Harris, Serial No. 85918970 (February 23, 2015) [not precedential]. [Section 2(d) refusal THE WASH BOX for "portable vehicle wash water filter" [WASH disclaimed], finding it confusingly similar to the registered mark WASH IN A BOX for "vehicle washing and cleaning equipment, namely, automated pressure washing and pressure rinsing machines and electronic and mechanical controls therefor, all sold as a unit; vehicle washing machines and parts therefor."]
In re World of Wine Events, LLC, Serial No. 86013688 (February 19, 2015) [not precedential]. [Section 2(d) refusal of SAN DIEGO BAY WINE & FOOD FESTIVAL for "arranging, organizing, conducting, and hosting social entertainment events; conducting entertainment exhibitions in the nature of food and wine festivals; consultation in the field of special event planning for social entertainment purposes; entertainment services, namely, wine and food tastings" in view of the registered mark SAN DIEGO BAY for promoting tourism and economic development in the San Diego Bay area.]
In re Sunton Enterprises, Inc., Serial No. 85863532 (February 19, 2015) [not precedential]. [Refusal to register AYLAZZARO for "handbags, luggage and trunks," in view of the registered mark LAZARO for "handbags, briefcases, briefcase-type portfolios and wallets."]
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TTABlog note: So how did you do?
Text Copyright John L. Welch 2015.