Barton Beebe & Jeanne Fromer’s submission to PTO on streamlined cancellation proceedings

Supporting the proposal, they summarize their evidence of overcrowding on the register.  Read it here.

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Traveling pictures: trademark/publicity rights questions, bonus torts

Yellowstone proper had very little in the way of obvious TM issues, interestingly enough.  Other things I have encountered:

For the torts folks; note especially the guy in the background blithely walking away from the dissolving child

“Nothing in life is absolute except vodka”–a drinking tour of Yellowstone

John Wayne endorsement?

Yes, Pink Cadillacs is a registered trademark for candy; a separate registration for pastry also exists, owned by someone else

Wondering about these Kits candies

Parody soda candy

parody candy cigarettes

paging the Marlboro man?

Bogarts restaurant: right of publicity problem?

This vase is patterned in little plastic closers, which are subject to various patent & TM claims

Amazing Spider-Moose

Fast & Furious

Star Wars parodies, also Bat-Moose below

I didn’t get a picture of the moose covered in rainbow dreadlocks a la Bob Marley.

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Traveling pictures: trademark/publicity rights questions, bonus torts

Yellowstone proper had very little in the way of obvious TM issues, interestingly enough.  Other things I have encountered:

For the torts folks; note especially the guy in the background blithely walking away from the dissolving child

“Nothing in life is absolute except vodka”–a drinking tour of Yellowstone

John Wayne endorsement?

Yes, Pink Cadillacs is a registered trademark for candy; a separate registration for pastry also exists, owned by someone else

Wondering about these Kits candies

Parody soda candy

parody candy cigarettes

paging the Marlboro man?

Bogarts restaurant: right of publicity problem?

This vase is patterned in little plastic closers, which are subject to various patent & TM claims

Amazing Spider-Moose

Fast & Furious

Star Wars parodies, also Bat-Moose below

I didn’t get a picture of the moose covered in rainbow dreadlocks a la Bob Marley.

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Shoes and surveys (picture post)

Since apparently there was some question whether the shoes I asked about post-Star Athletica were really shoes, here is proof:

Not much less functional than the average super-high heel

Also, I randomly got selected for a trademark infringement survey on SurveyMonkey!  Reading the questions as a consumer makes it even more clear that the “affiliation” questions are nonsense.

makes or puts out: okay, I can answer that

authorization/approval question

business affiliation or connection: as they say in the X-Files, how the hell should I know?

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IPSC Breakout Session V

Copyright Theory (my apologies; I had to leave early for a
flight)
Redundancy and AntiRedundancy In Copyright – Oren Bracha
& John M. Golden
Doctrines that overlap: fair use/functionality; fair
use/improper appropriation; copyrightable subject matter originality;
reproduction/derivative works rights (cautionary example).
Forms of redundancy: bidirectionally partial, standard Venn
diagram; unidirectionally partial—safe harbor laid over a more general standard
(§512 and secondary liability); complete (arguably “aid & abet,” “arbitrary
& capricious,” eBay test prongs 1&2). 
Fed. Cir. has resisted redundancy in things like patentable subject
matter, SCt has pushed back.
Value in redundancy: error limitation and clarity at core;
potential administrative advantages (dismissal/SJ, for example in Greatest
American Hero case where the court says no improper appropriation w/o needing
full fair use analysis/discovery); potential robustness against strategic
behavior; evolutionary potential. 
Copyrightable subject matter/originality: Copyright Office treatment of
yoga sequences—usually not w/in CSM.  9th
Cir.: functionality b/c of psychological and health benefits (claimed).  You won’t always have that kind of clear,
easily available evidence of functionality in admission against interest.  Series of rules, each of which is an
imperfect filter, might be the best.
Bad example: Harry Potter case—court decides Lexicon isn’t a
reproduction but is a derivative work; the rights may not be producing good
overlaps.
Buccafusco: how do these overlaps affect litigation choices
and do they affect it asymmetrically? [I think w/TM the overlapping defenses
can cause trouble, as Bill McGeveran has documented, b/c if you pick the wrong
one you may be out of luck].
A: may cut both ways.
Rosenblatt: there are redundancies in protections,
exceptions, liability doctrines (indirect infringement)—these might operate
differently from the standpoint of litigants, creators, owners.
A: Maybe, and the point is more thought about design of
overlaps and functions—backstops or partial redundancy or coequal partners.
Quantifying Copyright – James Grimmelmann
We encode almost anything digitally and count the bits—the number
is a measure of complexity. Some number of bits can likely be squeezed out by
compression, and those bits didn’t really matter in the first place.  You’re throwing out information, but if you
do it right/high enough, you can throw out only information that humans didn’t
care about.  Lyrics to Happy birthday
have internal redundancy; can be compressed to subsequences that appear in the
digital work.  Information theory:
communications, processes, encoding, noise (redundancy)—Fromer & Scafidi
have both done work in IP under the heading of redundancy. It’s about
communications systems.  When do we want
to be efficient and when redundant so we can recover the message even in
presence of scrambling & noise? 
Other branch of info theory: algorithmic.  It’s about computation, compression, individual
works—a work is only as complex as its shortest encoding.
Tentative idea #1: Feist says there are hundreds of millions
of ways to select 50,000 listings; about 1,500,000 bits to describe an
arbitrary selection—but it’s a lot easier to describe Feist’s actual selection,
and that is an indicator of lack of original creativity.
Tentative idea #3: quantify factor 3: a compressed image
could be seen as 100%, but you could also look at how much human perception has
been discarded going from big to small, which would be less.
Rule-based creativity: can’t extract more bits of expression
than you put in; merger kicks in when there are only a ltd number of ways to express
an idea. Scenes a faire are about predictability: in a hard-boiled detective
novel, it adds almost no new info to learn that the hero drinks.
More ambition: you could try to directly quantify expression
and do filtration and similarity tests. 
Problems: full complexity is uncomputable exactly. We can only
approximate. Also, that leaves off psychology and aesthetics and all the
reasons people actually care about having expressive works.
Boundary arguments: there are some situations where there is
no room for expression; you could use it as an input into expert testimony.
Maybe something in exploring lossy compression and its relationship to
psychology.
Linford: doesn’t music in Happy Birthday add a level of
complexity, which also makes it difficult to compare text to music.
A: tells you immediately that musical works are simpler than
sound recordings.
Christina Mulligan: how would you do the hard-boiled
detective thing? You need a baseline for defining the genre.
A: Hard.  Mainly wants
situations where there are actual numbers—file sizes for thumbnails.  A way of thinking about questions that
involve choice and constraint. 
Predictability/compressibility are throughlines that explain a lot of
appeals to number of available options.
Rosenblatt: could really be misused where psychology etc.
means that perceptions are completely different but analysis finds few
differences.
A: yes, this does a faceplant in transformativeness. It
clearly informs “extrinsic” analysis but has nothing to say about intrinsic
analysis.  This is a formalist approach.
Buccafusco: compared to what? Everything else sucks; this
approach only has to suck less.
Sheff: you might need different encoding selections to
measure and to compare.
A: K complexity is coding independent.
Rewarding Derivative Works – Joseph P. Fishman
Derivative works’ share of all films’ combined box office keeps
climbing. One explanation: it’s how they deal with risk.  But that’s not enough.  Derivative works rights subsidizes this
investment, and not other works. 
Franchises on average do earn more over production budgets than
non-sequels. Merchandising is also huge: $118 billion entertainment/character
related merchandise; $38 billion box office receipts. 
Jennifer Rothman: TMs are part of this; also, cross
subsidization of smaller films both by studios and by directors/etc. other
people who fund what they want to do w/the bigger films.
A: yes on TMs; maybe he needs a better term than
adaptation. 
Q: Many novels were originally posted as serials; they weren’t
short stories. Maybe we’re finding that longer visual stories are increasingly
popular, and they come in segments.
Then I had to leave.

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IPSC Breakout Session IV

Copyright Enforcement 
Protecting Copyright Integrity – Shyamkrishna Balganesh
& Gideon Parchomovsky
Dominant theory: © is about value. Additional assumption:
w/every exclusive right comes important limitations. Every grant of power is
also clear placing of limits on scope of that power. Classify them as those
internal to the grant, based on its very structure (originality, fixation);
prerequisites for enforcement for right (substantial similarity); defenses or
exceptions (first sale, fair use).  Broad
approach to limitations.
© has a clear enforcement asymmetry b/c rights owners have a
clear mechanism of enforcing rights, but there’s no mechanism for public
rights. Implemented if at all through litigation predicated on actual or
threatened action. If you want the limits independently enforced, you want a
clear sense of scope, there’s no cost-effective mechanism to know the
parameters. §505 is the closest, but not clear how it will be applied—is prevailing
party parity even possible after Kirtsaeng?
This feeds into risk aversion on the side of users, but not of owner-claimants.
Concept: integrity violations.  The way in which common law develops
incrementally is by identifying principles that fit within the present system
and can be justified by present principles. 
Integrity—building on existing system—idea is “fit” and justification,
like a chain novel.  Where a © owner
makes a claim that can’t be fit to current © doctrine or can’t be justified by
current © principles, a P should be able to challenge it.  “Fit” is a doctrinal concept, while
justification is about the underlying principle—a Dworkinian approach.  Doctrine is black letter, while justification
is about development of rules.  © owners
should be able to determine the boundaries, so we don’t want them to be
deterred from bringing claims as such, only from bringing overbroad claims.
Components: Substantive integrity violation.  Procedural: qui tam structure (addressing
fraud on the public, misuse of a state grant). 
There would need to be a formal claim via litigation or otherwise—C&D
would suffice.  Would not fit with existing © doctrine—not merely
that it’s uncharted territory.  Cannot be
justified using copyright principles
as an attempted expansion of doctrine. Courts do a pretty good job of this in
the common law generally.
Paradigmatic situation: Paramount
v. Axanar
: crowdfunded fan film. 
Claim to own Klingon language as a whole was the integrity violation (though
the claim based on derivative works was “on the wall”).  Paradigmatic lack of integrity violation: Kirtsaeng—the distribution right was an
area of ambiguity, which could be justifiable in © principles.
Standing: structure similar to False Claims Act: protection
of public domain.  Remedial teeth:
instead of waiting for declaratory relief, create an incentive for 3d party
enforcement—reverse statutory damages. 
Aggrieved P can get statutory damages w/o proving actual harm.  Statutory minimum for successful claim;
alternative actual damages where P is directly affected.  Equitable relief as well.
Lemley: I understand what overbreadth means in a claim-based
system like patent, and I know what overenforcement looks like in © but I don’t
know what ex ante violation looks like in © where you might assert rights
against a fair use or against a not-fair use.
A: Has to be a formal claim of some sort.  A simple statement w/o enough proof of
overbroad claim: P’s claim would fail.  P
has incentive to wait until the breadth of the statement becomes clear. 
Lemley: then you lose the advantage of solving the in
terrorem effect.
Deterring Copyright Extortion: A Consumer Protection
Approach – Ben Depoorter & Peter S. Menell
Perfect storm: digital age, Napster, increased statutory
damages; RIAA et al. ended up targeting individual users.  Bittorrent used for porn movies; created a
nice little business model, identifying people who’d be embarrassed to be named
in a suit; make a deal w/© owner; get lots of people in one swarm and send lots
of threatening letters; profit.  No cases
are litigated all the way through; seamy side of P’s bar.  Many ISPs comply w/these subpoenas.  The Prenda letter got a lot of a notice—people
like you have been subject to large awards; go through the history in a
somewhat misleading way, mentioning default judgment of $1.5 million dollars
(but that’s a seeder, not a downloader). 
Doing harm to © system.  Only 2
adjudicated cases where someone in this situation gets held to be an infringer.
Motions to quash: improper joinder, undue burden, lack of
personal jurisdiction; 1A right to anonymity. 
Advice for those who shared files: (1) don’t hire Charles Nesson; what
happened to Tenenbaum, who thought he could discharge damage in bankruptcy but
was wrong, was bad. (2) Default judgment risk is serious; the cost of doing
business is about $3000—you’ll pay that much for a lawyer to fight or to settle.
(3) Don’t lie. (4) Might be able to avoid liability on a technicality; Matt Sag’s
article gives good advice to lawyers, but you’re paying either way. (5) Clearly
$150,000 is not what you will pay. You should probably settle, but the number
to put in is not clear.  Sag uses about
$1500; he thinks that’s a good starting offer but not guaranteed.  We’re not looking at this from a socially
optimal perspective, but private cost/benefit analysis.  (6) Get a subscription service.
If you didn’t share files, the unfortunate truth is that the
advice is somewhat similar.  Still a
disruptive experience.  This is the price
of a civil society that uses litigation and doesn’t fee shift by default.
© Office could provide objective advice, though he’s not
confident they’d do it; many of their patrons are committed to statutory
damages.  Try to put what’s almost ½ of
all filings into some kind of small claims/UDRP system—judges would very much
like this off their dockets.  Fed courts
have many costs v. a modest process that is a slap on the wrist—but should also
make it easier for © owners to find out who these people are. 
Hard to solve w/o recalibrating statutory damages.
Taking Intellectual Property into Their Own Hands – Amy Adler
& Jeanne Fromer
Not a new problem, but perhaps growing—high profile
examples.  GucciGhost—artist using Gucci
logo on clothes. They hire him to design part of their line.  Big hits, sold out for $.  Gucci elements w/own take—lots of positive
critical attention. Success at coopting him. 
Gucci claims street cred as “essence of the Gucci brand.”  Playing w/theme of authenticity—using Guccy
on elements.  Contrast: Gucci put a piece
forward w/puffy sleeves w/Gucci logo, which looks a lot like Dapper Dan’s work
(Harlem based tailor who bought actual products and made new clothes out of
them).  Not such a clean-cut story. Not
everything that’s reappropriated is critically acclaimed.
Aquazzura and Ivanka Trump: straight up social shaming in
the media.
Richard Prince’s New Portraits & appropriating
appropriation: new portrait series taken from Instagram.  Portraits “curated” from Instagram, sold for
$90,000; 4 people have sued, while one target, the Suicide Girls, an
alternative porn collective, chose to appropriate the appropriator—they got a
lot of what litigation would have afforded, but they got it overnight on the
cheap.  They sold his work for $90.  Internet loved it; they made money (for
charity).
Drake and James Turrell, an iconic light artist.  Drake loved Turrell’s work and created
Hotline Bling using sets that were copies of Turrell’s installations.  Rap IP diss songs: Tupac Shakur’s Hit ‘Em Up
v. Young Jeezy’s Stay Strapped.  Accusing
people of taking other things, and they reappropriate and rework what was taken
and call the taker out.  Tupac adapts the
beat of Get Money by Junior Mafia and raps Take Money.  Reworks a hook from another song and delivers
it w/same melody and turns it violent. 
Lots of accusations of stealing, copying, beat biting, taking—taking samples
that he knew Tupac was using. 
Working outside the law to (1) get financial compensation,
(2) get attribution, (3) avoid misattribution of who’s the appropriator.  It’s cheaper, but there are no procedural
protections; it’s very easy to call someone out for copying, even in a way the
law might not recognize as a cognizable taking. 
Effects on IP law’s goals?  Do we
get more or better creativity when people create art in response to a taking
instead of filing a lawsuit?  Do we get
better branding (Gucci)/claims of authenticity? 
Does it create more or less risk aversion on the part of appropriators?
Q: Greg Mandel’s empirical work suggests people view IP as
an attribution law. Your project suggests that this is the heartland of what
people believe the law to be—they think they aren’t acting outside the law but enforcing
it.
Lunney: take a broader view on self-help, which has fallen
into disrepute in other areas—landlord-tenant repossession; cars.  [I really like Steve Clowney’s article on
this.] Drug territories and how those are maintained through self-help. Don’t
treat this in isolation.
A: we haven’t decided this is all good.
Sheff: focus on distinguishing TM/©.  Attribution and control are distinct.
Reappropriating something that’s been appropriated, for a brand, means
collaborating in cultural creation of meaning. If you hire the guy that’s
different from appropriating a street artist’s work. Tiger by the tail: can
come back to bite you when alcohol brands, fashion brands are trying to
appropriate youthful energy, and then youthful energy starts riots.  Doesn’t seem as much of a problem in ©.
Laura Heymann: Feedback loop—does it communicate anything to
the community about what the law is? 
Suicide Girls action didn’t deter Richard Prince.  He wasn’t required to disgorge any $.
A: yes, it’s odd to get relief w/o the appropriator having
to pay—you get $, but not from Richard Prince; you get attribution w/o his
involvement. So what are the incentive/deterrent effects w/o some other
reputational harm?
Copyright Irrelevance in Architecture – Kevin E. Collins
Lots of protection overlaps, but architects aren’t using any
of them. Underenforcement (not normative judgment but vs. broad protection that
is available).  Irrelevant in
architecture based on what theory? Incentive to create?  Enabling transactions?  © is irrelevant for custom designs, but not
for stock designs (where it is licensed to many). Almost all non-residential
design is custom, and stock designs dominate residential communities. There are
few licensed architects in stock design world, where most of the designers are “registered
designers” not licensed architects. 
Licensed architects have contempt and embarrassment for registered
architects who design stock houses—“ambulance chasers.”
Suits against transactional partners—employees who leave firms,
or people who fall out w/builders or clients—those are different kinds of
enforcement. Enforcement against transactional strangers is where © is necessary
to go out on the market; enforcement against transactional partners is
different.  © isn’t relevant for
bolstering exclusivity, but for other purposes. 
Relevant to help architects get paid, but not the ordinary “incentive to
create” story.  Almost all suits in
custom design are against partners; almost all suits in stock design are
against strangers.  Sometimes suits in
the custom space are owners of homes who are pissed off at copying of their
houses.
Of 3 custom design nonresidential cases against strangers,
two are industrial designs.  All ©
trolling is in stock design.
Q: different transaction costs exist in each case (strangers
v. transactional partners).
A: True. Custom side ends up w/ a lot of suits against
clients; both sides have about the same # of suits against departing employees.
Lunney: consider legal work—custom legal brief is generally
not copied, tailored to fit facts of your case; you’re paying for professional
judgment.

A: true, demands of clients and sites are different; that
just may affect substantial similarity. Different projects can end up looking
quite similar!

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IPSC Breakout Session III

Useful Articles 
Star Athletica: Stuck on the Merry-Ground  – Alfred C. Yen
We’re just going round and round. Those who can’t remember
the past are condemned to repeat it; a page of history is worth a volume of logic.
For a case the SCt took, the Ct was astonishingly indifferent to precedents.
Only 4 cited © cases: Mazer v. Stein; Chosun (2d Cir. 2005) (article need not
remain functional once artistic elements removed); Brandir dissent (statute
controls, not intent); Bleistein.  All we
have to do is look at the object and see if it’s capable of existing separately
from the underlying function.  Doomed to
failure b/c very project of identifying a hypothetical aesthetic object is
riven w/strongly inconsistent perspectives. You can’t escape moving among
perspectives in trying to identify artistic object.  Formalism (form of object itself),
intentionalism, institutionalism (audience reaction). Doesn’t think we can ever
rid ourselves of these contradictions in ordinary practice, and maybe we don’t
want to—each can bolster one of the others.
Court rejects audience and intent as not being based in the
statute; all they want to do is go back to formalism.  Star Athletica then puts us back where we
started, in Mazer v. Stein.  Prediction: we
will go around merry-go-round again.  Wy
won’t it work? Even the very effort of trying to identify whether something is
a useful article is fraught w/difficulty. Airplane wing or sculpture?  Shovel or sculpture?  Wall or sculpture?  Might want to know more about why it was made
and how it is used.
RT: the other part of 102 might provide some protection:
control over artistic design doesn’t give any control over making the thing
depicted.  If form & function are
unified, then anyone can sell that shovel in Home Depot regardless of whether
the shovel-sculpture is ©able.  Now, that
might just shift the intentionalism/institutionalism Q to the defense side, but
it might also take care of many of the situations where we think there are
competitive issues distinct from what we think of as the “real” point of ©.
A: it’s hard to talk about protectability of useful articles
w/o also talking about thickness of ©.
Chris Buccafusco: the opinion lacks formalist analysis.  Can we spot pictorial features/a work of art?  Yes. 
Opinion never describes them or engages w/what you might think formalism
would entail, such as identifying or describing the pictorial/graphic elements.  A formalism that never specifies form, unlike
Mazer & Carol Barnhart at least tried.
A: Court realized that trying to deliver an analysis would
make it even more clear that there is nothing more there.  Thomas ducks: it’s the only way to avoid
being criticized for subjectivity.
McKenna: some of these problems are Congress’ fault.  There is a definition of useful article,
putting thumb on scale of calling it a useful article, but the courts have
never taken that seriously. Also, Congress asked for an impossible task. Really
Congress wanted to separate © from design patent, not © from utility patent,
and that’s really difficult.  Look at the
examples Congress used, and they’re all highly analogous to physical
separability. Ignoring that caused Court problems.  You can’t really distinguish applied art from
industrial design.
A: Temporal equity problem: if it was sculpture first,
conversion to useful article later shouldn’t matter. If that’s the case, the
reasoning goes, then it shouldn’t matter in the other direction.  That’s what gets you stuck.
Q: So we should just reject the temporal equity point.  If you use 102(b) to let defendants sell things
as useful articles but not as sculpture, then you get lots of administrative
costs.
Responding to Star Athletica v. Varsity Brands – Lili Levi
Issues: Practical impact of indeterminacy; Court’s approach
to art; whether other limiting doctrines will work and how well; use of © for
branding/anticompetitive non-© strategies.
Conflicting views on how bad Star Athletica is; the attempt to adopt a deceptively simple,
uncertain unitary test creates an incentive for opportunistic litigation which
is likely to expand boundaries—already happening, Puma’s action against Forever
21 over Rihanna’s footware, which is plastic slides w/bows and fake fur on
them. These aren’t Schiaparelli’s dresses. Court doesn’t talk about affect on
fashion industry and whether it would be good or bad to kill fast fashion.
There can be different interpretations of function—you don’t
need to use the same definition of function to determine separability that you
use to determine whether something is a useful article.  Possible functions: Mechanical, marketing (enhancing
saleable value), branding. What about making people look thinner? Use in an
interactive way w/audience’s perceptual responses, knowingly crafted to achieve
resonance—does that make them expressive?
Star Athletica said
it wasn’t ruling on originality, but she isn’t very hopeful, given that in the
case itself there was disagreement b/t dissent and concurrence on elasticity of
originality. Could make arguments about role of originality being different
w/useful articles, but don’t know.  Maybe
we should also look at scene a faire—whether there’s enough common
understanding already; that’s mushy doctrine too. Granular, case by case
analysis will be required.
Pam Samuelson: there’s no question that functionality was
key part of what Congress was trying to do; ignoring that is a huge problem
w/the decision. If we care about the implications, working on what function
means is a task that we can bring to this. 
Even though the definition of useful article states that conveying
information is never functional, she found dozens of cases finding compilations
functional and uncopyrightable.
Intellectual Property’s Usefulness Problem, or Functionality
as Fair Use – James Y. Stern
Even if we rested on any one of those 3 visions Yen talked
about, we’d still have problems of incoherence b/c we have ontological
problems.  Humvee designed to survive
bomb blasts, deployed as suburban vehicle—is it functional in a
subdivision? 
Externalist controls—preserving space for patent law.  Internalist—limits based on our view of what ©
is. Ontological v. pragmatic: the essential Q is whether TM/© protection would
restrict access to a useful technology. Could defendant make a product that
works as well without using material claimed by right holder?  Focus should be on alleged infringer, not
right-holder. Doctrine should treat functionality as a defense, not an
invalidity basis.  Not taking any
position on where burdens of proof should be allocated, but it should be
case-specific in terms of what the D is up to, rather than the nature of what
the P has produced.  Traffix: currently
upside down—focused on whether the spring is the reason the TM owner’s device
works. In a lot of places in TM, that’s not always important, where we deal
w/side by side competitors in the same market—functional for P and functional
for D will overlap. If both make luggage w/shiny lining that causes confusion;
in one case it’s purely decorative while the other has thermal insulation.  If the former is the senior user and sues,
its feature isn’t functional for its use—and it seems like it should win!  [I doubt any court would so find, though.  Descriptive fair use would be a doctrinal
hook if you can’t stretch functionality, though I have hopes that a court would
recognize at least a category of defendant-side or product-category
functionality.]  If the latter is the
senior user and sues, it loses.  [This version
is almost literally the old aluminum washboard case, updated.  False advertising would still be available as
a claim, if consumers understood the silver to communicate the fact of thermal
insulation.  If they didn’t, then so
what?]
Copyright hypo: imagine bike rack designer copied the
original Brandir sculpture, rather than the resulting bike rack.  Result under useful article doctrine seems to
be that there is infringement, which means restricted access to tech.  Duchamp’s urinal would be the counterexample.
Star Athletica was
interpreting what was really an attempt to create an internal limit: protection
for industrial design excluded, but not for applied art.  Can’t you imagine anything as art,
though?   Functionality takes care of many worries b/c
functional uses are immune from © claims, and context matters—useful article
doctrine requires exclusion of fact of utility in considering the nature of
creative elements.  USB connector in the
shape of a faucet—can’t protect the fact that it’s a USB connector through ©.  [Could through design patent.]

Lemley: internalist justifications ultimately have to fall
back on externalist—you need a theory of why © shouldn’t extend too far; he
thinks that will ultimately be about why we want other doctrines. We ought to
have a doctrine of D-focused functionality, but we need not get rid of
P-focused functionality. Even where there isn’t a D-focused functionality, we
don’t want to give © or TM protection for truly functional elements.  [Really? What about ipodmybaby.com, where
they put the image of the [functional, by hypothesis] click wheel on a baby
onesie, where it was nonfunctional. 
Seems little reason to allow non-Apple parties to do that, though there
may also be minimal reason to stop them.]
A: thinks that’s more true for © than for TM.
Q: if you’re thinking about integrating useful articles in
102(b), you have to think about internalist views—there’s a lot of exclusions
that aren’t dependent on patent law—many of such exclusions exist b/c we think
they shouldn’t be protected at all,
by patent or otherwise.
Buccafusco: you don’t need anything about Star Athletica to
get copyrightability for the USB shaped like a faucet—that’s Mazer v. Stein.
A: but what are the copyrightable aspects?  Combination w/practical device should be
excluded from consideration.
James Grimmelmann: TM: descriptive fair use + deny
protection to descriptive terms as marks, analogous to P-side and D-side
functionality. Serves prophylactic purposes. 
There are arguments that scenes a faire and merger are defenses that have
been pulled back into protectability. 
That USB faucet might not be protectable b/c there’s no originality.
A: even a pure mold copy? 
Might/might not have minimal © necessary.  As for both kinds of functionality, that
might be practical, but don’t confuse prophylactics for principle.  Looking for answers in the nature of what
makes the characteristic functional in the first placer.
Trademarks & Consumer Perception Room 304
Should Trademark Law Protect Marketing? Deven Desai
Why not protect nontraditional TMs?  Countries are increasingly accepting
registrations for them. 
Why not?  First, scope.
How do you know what’s being claimed.  US
is less precise than Europe, which requires specific Pantone.  How do different people see the color?
Second, exhaustion of available colors, shapes, etc. 
Leads to aesthetic functionality morass.  Significant nonTM function: what does that
mean?  Marketing literature: Design is
part of branding, which can be used to compete. 
The whole point is to move beyond competitors’ ability to compete.  Design is a source of differentiation.  It’s not marginal to the product but core;
design & marketing dep’ts work together. Designers are looking to tap into
innate attitudes—features, shapes, forms, colors, materials, surfaces,
textures, to build brand image. Aesthetics and ease of use are all developed
together.
Notion of innate/essence capturing: communicating an aesthetic
is done best by using symbols to tap into innate preferences—preferences for
unity, proportion and symmetry, etc. 
Bright colors; shoes (large to signify power; even if a hair dryer has a
ton of power in smallness, consumers like it better when it’s big), angular
forms for masculinity in cars, roundness (phone edges, car trunks).  Functional/ergonomic: largeness can indicate
power, communicate quality by looking reliable or solid.  Does the number of buttons make consumers think a machine is easier to use?
Consumers care about shape of button.
Attention drawing/categorization.  Varying size and color; contrasting colors
can draw attention. Categorization: the way a consumer chooses products as
fitting w/in product market can drive consumer choice.  You want prototypicality: look or appearance
that makes most people think it belongs in the product space.
Look at Apple’s claims for trade dress—all those features
seem functional under this view—icons arranged to be easy to see and use, contrasting
colors b/t borders and screen, rounded shapes for phone & icons—all these
things you’d be very wise to use if you wanted to compete.
Maybe we should have a ban, taking seriously that TM isn’t
supposed to be incentivizing creativity. Consumers would learn that product
design trade dress isn’t necessarily reliable indicator of source.  Reality, though: rules aren’t going away—so we
need to manage it. Justin Hughes has proposed a way to handle design, which
Desai doesn’t think will work.  Where
aesthetic appeal preexists the product, he says, there should be functionality,
but not otherwise. But: designs are hybrids. They draw on and perform a variety
of functions at the same time—designers are explicitly tapping into innate and
preexisting preferences or biases.  Also,
there are not clear metrics on what should be granted. EU isn’t as clear as
people want, though it’s clearer than we are. 
Super-limited protection/scope might work, but there’s still the deep
problem that the more we grant, the more overreach we get, worse than in word
marks.  Still, it’s here to stay, so we
need limiting efforts.
Q: curb cuts, designed for wheelchairs but used by many
other people. Why the iPad became such an appealing piece of software/hardware
for differently abled people—goes to a lot of the things you’re talking
about.  That’s an example of the worst
case scenario for protecting these features—you give monopoly on accessibility.
Gerhardt: role of registration in determining scope?  Frequently we seen trade dress defined
against what the D is doing—ex post.  Ex
ante applications to register are in a weird space; companies proceed
differently than they do w/registering word marks.  They jump on word marks, but w/trade dress
they sometimes try to pin it down to put everyone else on notice, or it doesn’t
occur to them, or they don’t want to be pinned down so they wait.
A: Needs to know more about that.
McKenna: you could harden up the claiming rules to limit ex
post problems.
Trademarks, Employees, and the Firm – Matthew T. Bodie
TM is about attribution, so has particular puzzles for
employees/firm.  How can a firm claim
that a product or service is protected by TM when the employees aren’t making
the product/performing the service?  What
about the firm can change and yet still be the same “source”?  Paradox of Theseus’ ship—every bit is
replaced, and is it still the same ship? 
[I would say, why are you asking?] 
School of Law isn’t the building it’s in; it isn’t the people who are
there now (all the originals have been replaced).  Is the school anything more than the TM, the
right to say that it’s the School of Law? 
What about a labor-fissured firm, like Uber/independent
contractors? How can we say their work is “Uber”? The magic of the brand is to
encompass this, and the TM is the legal operationalization of enforcing the
brand connection.  Work done by non-employees
is still our TM.
TM has cheated and said that the business is the source—the fictional
entity. Firms have been arbitraging and we shouldn’t let them get away w/it—disavowing
for labor & employment law purposes, but claiming for brand & TM purposes.  TM law does say that you can lose a mark
through giving up on quality control—control over quality establishes the
mark.  Firms control through contracts,
etc. w/outside entities.
Choices for fissured firms: maintain control over labor and
become employer/joint employer (operate as a firm)—or if they want to outsource
housekeeping and not control it, they should lose TM b/c they aren’t
controlling quality any more.
Lunney: TM Act: authorizes TM owners to allow related cos. to
use their marks, defining related as those TM owner has control over.  But people don’t know or care whether there
are independently owned franchises or centrally controlled; you’d force central
control and McDonald’s seems to be doing fine having both types of restaurants.

McKenna: 100 years ago, outsourcing would have been
considered fraud. There was a very deliberate move in the common law and then
in the statute to abandon that, to enable companies to create different kinds
of commercial relationships. You might say TM law enabled the labor/employment
situation you enabled, and the payoff is that the market structure isn’t
independent of the rest of the law. If TM law were different, it would create a
different labor/employment market. Another take: in a service economy, what
does control mean? That might be a different paper.

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