delay bars ROP/Lanham Act claims when Facebook use was open and plaintiffs were aware of lots of unauthorized use

Posted on February 14, 2025 by rtushnet

Davalos v. Baywaych Inc., 2024 WL 5344434, — F.Supp.3d
—-, No. 21-11075-NMG (D. Mass. Sept. 30, 2024)

The caption seems to be a typo, but it’s one of the many
right of publicity etc. cases by models against adult clubs that used their
images in online ads. The defendant here gets summary judgment on laches.

The four images in dispute were posted on defendant’s
Facebook page between August, 2013, and November, 2015. Plaintiffs sued in
2021. The court certified a question to the Massachusetts Supreme Judicial
Court:

Under what circumstances, if any,
is material publicly posted to social media platforms “inherently unknowable”
for purposes of applying the discovery rule in the context of defamation, right
to publicity, right to privacy and related tort claims?

The SJC answered:

Claims for defamation, violation of
the right to privacy, violation of the right of publicity, and related claims
that arise from material posted to social media platforms accrue when a
plaintiff knows, or reasonably should know, he or she has been harmed by the
defendant’s publication of that material. Given how “vast” the social media
universe is on the [i]nternet, and how access to, and the ability to search
for, social media posts may vary from platform to platform and even from post
to post, that determination requires consideration of the totality of the
circumstances regarding the social media posting, including the extent of its
distribution, and the accessibility and searchability of the posting. The
application of the discovery rule is therefore a highly fact-specific inquiry,
and the determination of whether plaintiffs knew or should have known that they
were harmed by a defendant’s post on social media must often be left to the
finder of fact. If, however, the material posted to social media is widely
distributed, and readily accessible and searchable, a judge may determine as a
matter of law that the discovery rule cannot be applied.

Among other things, the SJC thus clarified that the
“inherently unknowable” standard for the discovery rule is, under contemporary
law, more accurately stated as a “knows or reasonably should know” standard.

The state tort claims were governed by a three-year
limitation period. Under the discovery rule, a statute of limitations is tolled
and will not begin to run until “[T]he plaintiff discovers or with reasonable
diligence should have discovered that (1) he has suffered harm; (2) his harm
was caused by the conduct of another; and (3) the defendant is the person who
caused that harm.”

What a plaintiff knew or should have known is generally a
fact question, but the burden is on the party asserting the discovery rule to
demonstrate that an action is timely.

Plaintiffs here either stated that they were either unaware
of the Facebook posts at issue until their attorney brought the posts to their
attention in 2021 or could not recall how they became aware of the posts. Without
information about how many people actually viewed the Facebook page at issue/the
specific posts and without information about likes or shares, it was impossible
to determine how widely circulated they were. Even wide circulation itself
would not inherently prevent the application of the discovery rule. But,
relatedly, there were not allegations the posts were ever concealed, kept
secret, or restricted. “In fact, the purpose of the posts as advertisements for
Club Alex indicates that they were meant to be circulated, not hidden, and
plaintiffs offer nothing to rebut that inference. Even if the posts were in
some way restricted and not readily accessible to plaintiffs, moreover, that
would not be sufficient in and of itself to excuse plaintiffs’ failure to
discover them.”

Most importantly:

[T]he facts leave no doubt that
plaintiffs, all of whom license their images as part of their profession, had
good reason to know that people were misappropriating their likenesses on
social media. Indeed, plaintiffs have all been involved with numerous lawsuits
related to other instances of misappropriation in the years following Club
Alex’s posts. Plaintiffs were able to discover and act upon misappropriations
in other cases and offer no reason why these posts were any different or less
discoverable than others. … [T]he frequency with which plaintiffs have had
their likenesses misappropriated renders reliance on the discovery rule
suspect.

A footnote referred to Meta’s “facial recognition technology
that, at all times relevant to this case, could have aided in such searches.”

True, social media is vast, with more than 350 million
images uploaded to Facebook each day in 2013, but “[t]he fact that the allegedly
misappropriated posts occurred amid a vast sea of Facebook posts does not …
render plaintiffs’ lack of knowledge objectively reasonable. Nor is the fact
that the posts may have required more than a perfunctory search to locate on
Facebook enough to invoke the discovery rule’s protections.” Thus, there was no
genuine dispute of fact on tolling the limitations period, and the state law
claims were time-barred.

Lanham Act claims: instead of a limitations period, the
Lanham Act uses laches, generally borrowing the most relevant state law
limitations period to determine whether laches is presumed or not.  Plaintiffs argued that laches shouldn’t apply
to deliberate infringement, but only the Second Circuit agrees. Other circuits
consider deliberate infringement to be merely one factor in considering when to
apply laches, a rule that “better align[s] with the equitable nature of laches
than the Second Circuit’s brightline test.”

Here, the parties didn’t dispute that the most analogous
statute of limitations is drawn from the Massachusetts Consumer Protection Act,
with a four-year limitations period. Thus, laches was presumed. Laches requires:
1) a lack of diligence by the non-moving party in asserting their claims and 2)
prejudice to the party asserting the defense. Plaintiffs failed to create a
material dispute about reasonable diligence, for the reasons given above. “The
only substantive piece of evidence plaintiff has proffered to the contrary is
an affidavit of a legal secretary who claims that successful image searches can
take ‘days or weeks to complete,’ but that does nothing to explain why an over
eight-year delay is reasonable here.” The court again pointed to plaintiffs’ “host”
of other lawsuits. “[T]he extent to which plaintiffs’ likenesses have allegedly
been misused is sufficient to put them on notice.”

And for prejudice, the original club owner died in 2018. “Had
plaintiffs brought their claim sooner, that individual would have had the
opportunity to present potentially salient details about his intent and the
likelihood of confusion the images may have caused.” Also, plaintiffs relied on
a 2023 survey; defendants argued that, if plaintiffs had sued earlier, “it
would have been possible to assess this issue based on potential clientele at
the time the posts were made rather than a decade later. That deterioration in
the face of delay is precisely the kind of prejudice the First Circuit has
found to be meaningful.”

Given the totality of the circumstances, the court found
laches even assuming the infringement was willful. A claim brought more than
eight years after the final Facebook post was such a “lengthy” delay that it
was easier to find prejudice.

from Blogger http://tushnet.blogspot.com/2025/02/delay-bars-roplanham-act-claims-when.html

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Dastar bars claim against allegedly false copyright/licensing claims used to extract money from public domain works

Posted on February 10, 2025 by rtushnet

McKenzie v. Artists Rights Soc., Inc., 2024 WL 4803870, —
F.Supp.3d —-, 2024 WL 4803870, 22 Civ. 1619 (JHR) (S.D.N.Y. Nov. 15, 2024)

McKenzie is an art publisher that worked with the late
artist Robert Indiana to create and produce two images: one called “LOVE” and
the other, “HOPE.” In the 1960s, the LOVE image “gained global popularity
through display on commercial products, paintings, and outdoor sculptures,” all
published without notice and thus in the public domain. 

LOVE sculpture, Wikimedia

HOPE sculpture, Wikimedia

In 2007, Plaintiff and Indiana created the HOPE image, “similar to the LOVE image,” which began competing with the LOVE image. Indiana didn’t claim copyright in the HOPE image either.

Nonetheless, Indiana entered into two contracts with a defendant-linked entity, Morgan, in the 1990s, pursuant to which Indiana purported to convey to Morgan all “copyright, trademark, and other rights” in LOVE—in addition to “the exclusive right to reproduce, promote, and sell” the LOVE image, “produce and fabricate,” own, and sell sculptures of LOVE, and the purported right to sue for copyright infringement of the LOVE image.

McKenzie alleged that “Defendants well knew” and “certainly know now” that LOVE was not, in fact, protected by copyright. Nevertheless, “Defendants … combined together for at least two decades to fraudulently represent that they had and still have a copyright on the LOVE image” and engaged in false licensing to the tune of millions of dollars, harming plaintiff, which is authorized to “produce and market the HOPE [i]mage” and “is in direct competition with the LOVE image.”

The RICO claims failed because they were RICO claims (and untimely).

Lanham Act: McKenzie alleged that Defendants made false representations (1) in violation of § 1125(a)(1)(A), by claiming that “Morgan and ARS ow[n]ed the copyright to the LOVE image,” and (2) in violation of § 1125(a)(1)(B), by claiming “that ARS was authorized to license said copyright.” Neither survived Dastar. Cognizable misrepresentations regarding the “origin of goods” under § 1125(a)(1)(A) “refer[ ] to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.”

Although Dastar is about authorship, it also applies to claims “for false representation of ‘affiliation’ between the author and a distributor of communicative products,” even if through “a false assertion of license.” That was the essence of McKenzie’s complaint: Defendants “deceive[ ] the general public and the relevant market” that they have a copyright to LOVE—i.e., that Indiana (or his estate) provided them with the right to license products bearing the LOVE image.

What about false advertising? “Statements about whether a defendant has the right to use or distribute a work are not considered material ….” Thus, there was no actionable misrepresentation.

Even without that, Lexmark barred the claim. To allege causation, McKenzie pled that “HOPE and LOVE, as images, have no other competition than each other.” In addition, McKenzie alleged that defendants’ use of “the false copyright assertion in relation to its many licenses of the LOVE image has greatly enhanced the revenues derived from the LOVE image, and made it appear more valuable than the HOPE image given its supposedly copyright-protected status and the extensive public visibility it has acquired.” But McKenzie failed to allege that “consumers [e.g., potential licensees] were deceived by the fraudulent [copyright]” and “also that that deception” is what “led consumers to ‘withhold trade’ ” from McKenzie.

Plus, laches barred the claim.  Although “[i]n general, the defense of laches is not raised in a motion to dismiss[,] …. in certain circumstances, when the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to dismiss.”

Although McKenzie averred that he “was unaware of the fraudulently concocted use of a false assertion of a ‘copyrighted’ LOVE image until … February 25, 2020,” when one defendant was deposed in connection with a separate lawsuit, other allegations—including that, since 1999, defendants made “repeated” and “continuous” false assertions of copyright—undermined this position. He admitted that, “[b]efore the Hicks deposition [in 2020], [he] had seen the public advertising, observed that the large auction house and others all referred to the LOVE image as being copyrighted to Morgan and thus he believed … that LOVE was copyrighted to Morgan.” At some point prior to Indiana’s death, he “notice[d] that virtually the entire artworld was marketing the LOVE image with the assertion that it was subject to a Morgan ‘copyright.’ ” He also alleged that, in 2007, thirteen years before the 2020 deposition, “Indiana would not authorize” him to produce a LOVE portfolio because Indiana “believed that Morgan had a copyright on the LOVE image based upon Morgan’s fraudulent representations to him that they had acquired one through his agreements with them.” Thus, he “knew” “or should have known” of any Lanham Act claim by no later than 2007. “The copyright registration status of the LOVE image was publicly available information that Plaintiff could, and ultimately did, uncover on his own.”

Thus, the delay in filing suit was inexcusable, and McKenzie didn’t rebut the defendants’ claims of prejudice based on their having continuously licensed LOVE since 1999 and the loss of evidence due to Indiana’s death.

from Blogger http://tushnet.blogspot.com/2025/02/dastar-bars-claim-against-allegedly.html

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literal falsity can exist even if there’s a strained “truthful” reading

Posted on February 6, 2025 by rtushnet

Kopp Development, Inc. v. Metrasens, Inc, No. 1:21cv1216, 2025
WL 371303 (N.D. Ohio Feb. 3, 2025)

Metrasens and plaintiff KDI compete in the market for
ferromagnetic detectors, used to detect magnetic items (such as iron) on a
person’s body or clothing before the person enters a room containing an MRI
scanner. In 2018, Metrasens purchased a Kopp Ferralert Solo unit from a
third-party located in Singapore and provided it, along with a Metrasens
Ferroguard Screener unit, to a company called Intertek Testing &
Certification. Intertek then issued a test report identifying the units by serial
number and photos. The report concluded that “[t]he results of the testing
showed that the Metrasens Ferroguard Screener had a significantly higher
detection rate than the Kopp Ferralert Solo across the range of typical target
objects.”

Metrasens then created a summary, which said in relevant
part:

Ferromagnetic detection systems
(FMDS) are not all the same. In an independent testing-laboratory comparison of
570 presentations of 9 typical risk items, there was a significant difference
in the probability of items being detected, with Ferroguard Screener detecting
96% of presentations for the complete risk-item set, compared with 75%
probability of detection for Kopp Ferralert Solo.

…

KEY FINDING

For smaller risk-Items, Ferroguard
Screener proved significantly more effective at detecting threats to patient
and staff safety and operational performance (94% of risk items detected) than
the Kopp Ferralert Solo (56% of risk items detected).

…

TESTING METHOD

– Independent testing-laboratory  

– Standard, new, 2018 FMDS patient
screening systems …

There were also comparative charts.

KDI’s owner testified that the Ferralert Solo unit that
Intertek tested was an early prototype from when the product was first released
in 2012, and that KDI had made several improvements to the Ferralert Solo
product since 2012. In late 2020, KDI told Metrasens that the Intertek unit
tested was an “old” version. Metrasens responded that it was unable to confirm
the manufacturing date but offered to resubmit the products if KDI provided
evidence that current versions were modified/upgraded. KDI responded that, if
Metrasens hadn’t confirmed the manufacturing date, it objected to the claim that
it tested “Standard, new 2018 FMDS patient screening systems.”

Previously, the court held that there was a genuine issue of
material fact as to whether Metrasens’ advertisements proximately caused KDI to
lose business from the University of Pittsburgh Medical Center, one of KDI’s
existing customers, which also created a genuine factual issue on corresponding
tort claims.

Although it excluded KDI’s proposed expert on damages, the
court concluded that KDI could try to show evidence of damages with reasonable
certainty at trial, including by showing the dollar value of the specific lost
sales to UPMC or other sales evidence.

Here, the court addresses additional briefing it sought on when
a presumption of money damages could apply.  Deception and injury are both components of causation.
Notably, “the sort of proof of these elements a plaintiff must show varies
depending upon whether damages or injunctive relief is sought.” Where the “rigorous”
requirement of literal falsity is met, deception may be presumed; otherwise “[t]here
must be evidence that a ‘significant portion’ of the consumer population was
deceived.”

For injury, a plaintiff must generally prove damages, but they
may be presumed in cases of willful deception where the plaintiff was the target
of comparative advertising. And it is a rebuttable presumption. The court expressed
some doubt that this presumption only applies to literal falsehoods—since it’s
about the injury component, it doesn’t obviously require literal falsity if there’s
willfulness & deceptive comparative advertising—but the parties assumed it
to be the case, and anyway this was a literal falsity case.

Literal falsity: Metrasens argued that it didn’t outright
say that the unit was made in 2018, just bought in 2018 and not used (new),
which was true. But in context, “the meaning of the challenged statement is not
ambiguous.” “[A]ny reasonable consumer of MRI screeners would interpret the
statement ‘standard, new, 2018 FMDS patient screening systems’ as meaning that
the KDI product involved in the testing was (1) standard; (2) new; and (3)
manufactured and sold by KDI in 2018.” Although it quoted the (really
misleading, ironically) Seventh Circuit statement that a literally false
statement is “bald-faced, egregious, undeniable, or over the top,” the court explained
that Metrasens was not required to explicitly state the date of manufacture to
engage in literal falsity. In context of a guide allowing hospitals to compare
the performance of the competing products on the market, “new, 2018” could not
reasonably be interpreted to mean purchase date.  

However, whether this was true was a disputed factual
question. KDI’s witness testified that he could identify it as a 2012 prototype
because of its color and serial number. On the other hand, (1) Metrasens bought
the KDI Ferralert Solo “on the open market as per a customer could have bought
it;” (2) the model number of the KDI Ferralert Solo that Metrasens bought
matched the model number of the KDI Ferralert Solo that was being sold at the
time; (3) the price that Metrasens paid for the Ferralert Solo fell within the
market price range for that product at the time; and (4) the box, packaging,
and instruction manuals of the KDI Ferralert Solo purchased by Metrasens were
“pristine.” The jury would have to decide. Presumption of damages: KDI argued
that literal falsity plus comparative advertising, without bad faith, sufficed
to presume damages. There’s logic to this—it’s not the bad faith that makes the
damage so much more likely, it’s the direct comparison! But the court disagreed
because it read the precedent to require literal falsity, bad faith, and comparative
advertising.

KDI also argued that Metrasens acted with “recklessness
amounting to willfulness” when it (1) purchased the Kopp Ferralert Solo product
despite knowing that the supplier “had been known in the past to provide old
stock;” (2) “willfully put out an ad” saying that the KDI product was a
“Standard, new, 2018” model “with no support to label it as such”; and (3) decided
to “keep up the campaign and continue to publish after express notice that the
message was literally false.”

Even if Metrasens purchased the KDI Ferralert Solo without
verifying the manufacture date and despite knowing that the supplier had
provided “old stock” in the past, its witness testified, at length, to the many
reasons why Metrasens reasonably believed that the KDI Ferralert Solo it
purchased for Intertek’s testing was, in fact, KDI’s current 2018 model. This
too created a jury question.

from Blogger http://tushnet.blogspot.com/2025/02/literal-falsity-can-exist-even-if.html

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ambiguity over who was first African-American bourbon distiller in Kentucky dooms false advertising claim

Posted on February 4, 2025 by rtushnet

Victory Global, LLC v. Fresh Bourbon, LLC, 2025 WL 366626,
No. 5:21-62-KKC (E.D. Ky. Jan. 31, 2025)

After dealing
with a motion to dismiss, the court now grants summary judgment in this
case brought by one African American-owned bourbon seller against another.

Victory operates as Brough Brothers, which claims it was the
first “African American owned bourbon distillery in the Commonwealth of
Kentucky,” with the requisite licenses to operate a distillery by September
2020. By December of that year, it had distilled bourbon and filled its first
bourbon barrel in a leased Kentucky facility. Brough Brothers alleged that
Fresh Bourbon falsely advertised that Fresh Bourbon is the “first black-owned
bourbon distillery in Kentucky,” and made other related claims. Fresh Bourbon didn’t
lease a facility until early 2022 and did not obtain the required federal and
state licenses to operate a distillery until September 2022. It began
distilling its product at this facility in late 2022.

However, Fresh Bourbon submitted evidence that, in 2018, its
representatives were “distilling” bourbon that it sold under the name “Fresh
Bourbon” at Hartfield & Company Distillery in Paris, Kentucky, even though
it didn’t own or operate its own distillery and could not legally have done so.

Challenged statements: 1) Fresh Bourbon was the “first
black-owned distillery in Kentucky”; 2) Fresh Bourbon is the “[f]irst
black-owned bourbon distillery coming to downtown Lexington” (not shown to be
false); 3) “There had been no African Americans producing bourbon that weren’t
slaves” until Fresh Bourbon did it; 4) Fresh Bourbon is “the first bourbon
developed grain to glass by African Americans in the state of Kentucky”; and 5)
Fresh Bourbon employed Kentucky’s “first African American Master Distiller in
Kentucky since slavery.”  

Fresh Bourbon argued that it didn’t say that it was the
“first black-owned distillery in Kentucky” but that it was “considered by the
Commonwealth of Kentucky to be the first black owned distillery in Kentucky,” given
Kentucky Senate Resolution No. 176, which stated, “The Fresh Bourbon Distilling
Company is considered to be the first black-owned bourbon distillery in
Kentucky.” An online news article made the “first black-owned distillery”
statement, but not quoting any Fresh Bourbon representative, and Fresh Bourbon
wasn’t shown to have used the article in any marketing. Thus, the actual
statement wasn’t literally false, given the Senate resolution, even if the
resolution was drafted by Fresh Bourbon’s representatives.

For the “producing” and “developing” statements, Brough Brothers
argued that Fresh Bourbon’s “minimal contributions” to producing bourbon at
Hartfield couldn’t constitute producing or developing bourbon. The court,
however, found the statements “at least ambiguous as to the degree of
involvement of the actor.” And the owner and master distiller of Hartfield
testified that Fresh Bourbon representatives were eventually engaged in all
aspects of the bourbon-making process, eventually had “free reign in the
building,” did “everything” in the bourbon-making process without anyone from
Hartfield present, and mashed and distilled the bourbon. The statements at
issue didn’t claim to have a distiller’s license and permit. Plus, Brough
Brothers’ own expert testified that it was “impossible to verify” whether Fresh
Bourbon representatives were the first African Americans to make bourbon since
slavery.

Similarly, the statement that Fresh Bourbon employed
Kentucky’s “first African American Master Distiller in Kentucky since slavery” was
“either ambiguous or an opinion, which cannot be the basis for a Lanham Act
false advertising claim.” Apparently “Master Distiller” has no set definition.
Brough Brothers’ own expert testified that the term has no “legal definition”
and is “basically” a matter of opinion.

Even assuming that Brough Brothers had shown falsity, it
still failed on materiality. Even with literal falsity, materiality must be
shown.

If a company makes a literally
false statement, then it can be presumed that the consumer who receives the
statement was deceived. But whether that statement had any bearing on the
consumer’s buying decision is a different issue…. For example, if a company
advertises that its shampoo was manufactured in New Jersey, but it was actually
manufactured in Pennsylvania, then it can be presumed that consumers were
deceived about where the product was manufactured. But whether the place the
shampoo was manufactured means enough to influence consumers’ buying decisions
requires some evidence.

The fact that both parties used “first black-owned
distillery” in their marketing campaigns was insufficient. Materiality
“requires factual evidence concerning the relevant consumer market and the
perspective of the potential customer in that market.”

State law claims also failed.

from Blogger http://tushnet.blogspot.com/2025/02/ambiguity-over-who-was-first-african.html

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materiality surveys may not need controls

Posted on February 3, 2025 by rtushnet

In re Keurig Green Mountain Single-Serve Coffee Antitrust
Litig., No. 14-MD-2542 (VSB), 2025 WL 354671 (S.D.N.Y. Jan. 30, 2025)

This is a ruling on 19 motions to exclude expert testimony
in this case, which is mostly an antitrust case; I will focus only on some
false advertising-relevant rulings.

Keurig sought to exclude Hal Poret’s testimony, offered primarily
for the purpose of showing that Keurig statements misled consumers into
believing that its 2.0 Brewer worked only with Keurig’s K-Cups, and to provide
an additional basis for one plaintiff’s false advertising damages expert,
to rely on when estimating Lanham Act damages resulting from Keurig’s
incompatibility statements.

The court started with a presumption favoring the
admissibility of surveys. Poret didn’t test the exact language Keurig used, but
that wasn’t fatal.  Although surveys
“must ‘be designed to examine the impression presented to the consumer,’ ” “there
is no obligation that the survey use the exact language challenged, or mirror
the advertising conditions exactly.” Instead, Poret interviewed consumers about
“what they did and why,” addressing the broader question of why consumers had
not purchased competitor’s single-serve cups. His choice not to show the
allegedly misleading ad campaign didn’t render the entire survey unreliable, since
his methodology was well accepted in the survey field.

It was also not fatal that the survey lacked a control
group. “Control groups are not the universal and inflexible requirement of
survey research as Keurig seeks to portray them.” They’re useful when the
survey is trying to determine the source of attitudes or beliefs or behaviors,
or to “test directly the influence of [a] stimulus” such as a commercial. But “a
control group may not be necessary if the risk of simply recording pre-existing
values is not as great. For example, “a control group is not required for a
survey that purports only to understand what developers perceive as relatively
more or less important factors in their decision-making process.” That was the
case here.

Likewise, Keurig’s arguments that the questions were biased
and leading were insufficient to affect admissibility. The questions were
closed-ended, but that can be legitimate. Certain respondents were asked to
choose from a list of reasons that they did not purchase unlicensed pods. Some
of these choices favored plaintiff’s position (e.g., “I heard or read that the
Keurig 2.0 brewer works only with Keurig brand or licensed pods”) but some did
not (e.g., “I prefer the taste of Keurig or Keurig-licensed brands.”). “Determining
consumers’ preferences on these kinds of clearly defined alternatives is the
kind of task for which close-ended questions are frequently more appropriate.”

The court also rejected the criticism that the universe was
unrepresentative because Poret “imposed near-equal age distribution within his
sample survey,” creating an underinclusive universe of respondents whose ages
matched neither the population of Keurig users nor the population of the United
States. The survey population of interest was Keurig 2.0 Brewer owners, which
was appropriate.

Another plaintiff expert was Sarah Butler, who was offered
to testify both on Keurig’s testing of competitor cups and her own surveys.
Keurig objected to the first, because it argued that her “training is in
consumer surveys, not laboratory testing of physical products.” But she was
qualified to opine on whether Keurig’s comparisons between K-Cups and
competitive cups adhered to “specific research standards and methodology.”
Butler was an expert on survey research, market research, sampling, and
statistical analysis. Her evaluation related to research standards and
methodology generally, and not merely to “product testing,” and thus she was
qualified to opine on whether the methodology of a research study allows for
statistically valid conclusions to be drawn. Her non-survey testimony concerned
whether the cup testing conducted by Keurig followed “generally accepted
research standards for comparative product tests—such as objectivity,
sufficient sample size, use of control groups where appropriate, and testing
protocols—necessary for reliable statistical analyses,” and therefore aligned
with her experience, training, and expertise.

As for her surveys—one of home users and one of out-of-home
users like office users—the court also allowed them. For the home users, Butler
made adjustments to the control group to ensure that “respondents who had
previously been exposed to Keurig’s false advertising campaign were controlled
for.” In devising her survey, Butler noted her concern that “the rates in the
Control group may be driven by past exposures to statements made by Keurig
about the unreliability of Competitive Cups.” “Mitigating the impact of
preexisting beliefs on survey feedback is a sound objective in survey research.
Indeed, failure to control for the impact of preexisting beliefs can render a
survey unreliable.” Where a control group without preexisting beliefs is
unavailable, “social scientists sometimes employ statistical weights or
adjustments to the control groups. … Given the threat that preexisting views
pose to survey validity and the broad use of far more intensive methods of
control group weighing in modern econometric methods, I do not agree with
Keurig that there is no scientific justification for Ms. Butler’s modification
of the control group.”

For the out-of-home group, Keurig argued that there was no
control group at all, but that survey targeted “individuals responsible for
beverage supplies or contracts with beverage suppliers for their office or
business location to evaluate the impact of Keurig’s relationships with
Distributors[ ] on purchasing behaviors in the Away-From-Home Market.” Thus, it
didn’t seek to test the impact of a particular stimulus or statement on these
individuals, and a control group wasn’t as necessary.

Keurig also objected to questions in the first survey that
it argued created a false dichotomy between “licensed” and “unlicensed” pods as
well as the use of words like “unapproved” that it deemed biased, along with stronger
warranty language than Keurig itself used. Keurig’s rebuttal expert conducted a
survey along its proposed lines which yielded substantially different results.

The court disagreed. Keurig’s own materials used
“unapproved,” so it was fair to ask consumers about that, and the other
questions didn’t suggest answers in an impermissibly leading way. Although
there were differences between “affecting” a warranty and “voiding” a warranty,
“none are so strong that exclusion of the survey is warranted or that it
becomes more likely than not that Ms. Butler’s opinion is unreliable. Although
Keurig’s survey produced different results, this is to be expected—surveys
conducted in different ways produce different results.” Cross-examination was
the remedy.

The court also rejected sample-based criticisms of the
second survey, noting that samples don’t have to be perfect.

Keurig also criticized the use of “recall-based measures”
(i.e., questions about past purchasing decisions) in the first survey, on the
grounds that “[i]t is widely recognized that recall-based measures do not yield
reliable responses.”  “[R]ecall bias,
which recognizes the potential for inaccurate responses due to fading memories
over time,” is a known issue with survey reliability. But that went to weight
rather than admissibility. And asking about aggregate decisions over a long
term is less problematic than asking about very specific things. Likewise,
adding an “I don’t know” option can mitigate the problem, which was done.

from Blogger http://tushnet.blogspot.com/2025/02/materiality-surveys-may-not-need.html

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WIPIP: Copyright: Incentives and the Digital Age

Posted on February 1, 2025 by rtushnet

Tang, Creative Labor in the Age of Platform Capitalism

Theories of expressive work and creativity: lead to idea
that AI training itself is not a © problem b/c it doesn’t use work
expressively. Past idea: digital creativity enhances autonomy by giving
individuals greater roles in authoring their own lives. When people are
creative, making new things out of old things, become producers, they exercise
and perform freedom and become the sort of people who are free. Semiotic
democracy.

This model is challenged by paradigm shift in digital
creation. From early days of YouTube—hotbed of amateur creativity—to current
situation of rightsholder synergy. “Collaborative model” in which “rights
holders” and “online creators” are partners in sharing viral profits. YouTube’s
ContentID, along with Meta and TikTok, allows users to take bits and pieces
without themselves needing to pay. This changes how we think about digital
creativity on the internet. Those autonomy arguments are actually no different
than autonomy arguments made by Uber, Postmates, and other gig economy companies—greater
flexibility for a bohemian lifestyle. But we know that’s not true. Creators
relied on TikTok for their livelihoods—Uber drivers are subject to algorithmic
black box whims; YouTube doesn’t make its monetization/demonetization policies
public. At best, platforms are oligopolistic for creators.

Platforms have always gathered that meaning-making
expression into data; made it clear when they changed TOS to make it explicit
that they were using data to train generative AI. The analysis of the datafication
of creative works can learn from privacy scholarship, which has asked: how does
privacy law evolve from dignitarian individualistic notions focusing on
noneconomic invasions for the era of mass privacy invasions through gathering
data en masse?

Q: historically, the vast majority of artists have failed.
Maybe the platforms make things better [or don’t make things worse] by allowing
artists to find their audiences.

A: consider TV writers negotiating for uses of AI.

Rosenblatt: This is part of a story of precarity; sounds like
freedom but isn’t—gig economy analogy is convincing. What does this do for ©? TV
writers—that’s WFH. The one thing these creators have is ©, and what good does
it do them? Very little. YouTubers have © but it doesn’t seem to be relevant.
Is there something else we should be doing?

A: all these arguments—the payments would be minimal, it
would be too hard to track all the uses—have been made in privacy, so we could
look there. WFH: challenge to the idea of the inextricable link b/t work and
the author.

Lunney, Incentives and Music Composition

Fundamental premise of ©: more rights means more $ for
righsholders means more creative output. This paper is looking at music
composition: does revenue increase output? Does revenue increase number of
composers? RIAA shipment data in constant dollars—going back to 1962. Steady
climb; 80s recession and recovery; Napster/filesharing decrease until 2015,
back to the early 60s level, and then starts to rise again. ASCAP etc. payouts
also have to be considered for composers, and there we see a steady increase
rather than sharp drops, with a few blips. With both taken into account, you
still see a filesharing effect, but not quite as drastic as for recording
revenues (and not much recession effect).

What happened to composers? Hot 100: a relative measure of
quality rather than absolute, since it’s competing with the current
alternatives. More money means fewer top hits rather than more contenders. For absolute
measures of quality, looked at decay over time. The 90s (high revenue period) songs
did worse than expected. The low-revenue 2006-2015 period is where people are
still listening to the songs today. Can control for various variables including
teenage population and revenue is still uncorrelated or negatively correlated
with revenue.

Superstar composers: only 2 from the 1990s, many more from
other lower-revenue decades. So more money is associated with fewer and lower
quality hit songs, fewer first appearance songwriters, and fewer superstar
songwriters. Next steps: more data, looking for varied output based on quality
of hit, and revisiting assumption of equal shares of songwriting credits.

Rosenblatt: what the trends are in publishing deals—are the
deals better/worse/different/360? Industry practice has changed considerably
over that period.

A: good question, but his core question is does more ©
yield more music? Why it does or doesn’t is an interesting Q but not his
main one.

Fromer: Movies: Blockbusters are often perceived as less
creative; gatekeeping around who is allowed to produce them—is there anything
like that dynamic here?

A: certainly gatekeeping on the artist side. Harder to tell
on the publishing/composing side. We hear about artists being taken advantage
of. [We definitely hear about composers forced to share credit with performers
in order to get the song recorded by them.]

Fromer: Artists wanting to work with a particular hitmaker
may matter.

A: we’re increasing the number of composers on average in a
hit song, for sure.

Q: some songs are on the Billboard 100 forever.

A: sure, it’s not a perfect measure of quality, but that’s
why I also look at whether it’s still being streamed years later.

Q: another possibility: look at # of DMCA takedowns to
measure popularity/quality.

Cathy Gellis: did the Copyright Act of 1976 coming into
effect have any relation to what happened to spike revenue in 1978? But also
note that the “filesharing collapse” was also correlated with the collapse of
record stores, which wasn’t just about filesharing but was also about the
prices record companies were charging to record stores that made them
unsustainable.

A: hard to explain 1978. But you’re right, there’s a lot
going on. And only looking at Hot 100, so there may be other things going on,
although the music industry is highly skewed to the top.

Q: Number of composers being added: people are preemptively
adding composers w/similar style b/c of fear of Blurred Lines type lawsuits.

Pager, Copyright’s Extended Duration as Feature not Bug

Most valuable works may struggle before they are recognized
as valuable—Van Gogh died penniless. Moby Dick, Citizen Kane were commercial
failures. Art from marginalized communities may take time to be recognized.

Publishers will only invest in works that they think will
pay off fast if © term is short. Does that mean © needs to last 100 years? Not arguing
for any particular term. But could play with a variable term. Return to a renewal
term—option. That would allow mainstream iconic works to renew, which would be
bad; could couple it with some sort of revenue cutoff, so the works that have
had returns on their investment can’t renew.

RT: Renewal restrictions: as far as I know most blockbuster movies
have technically lost money; so how would that work?

A: could go by box office/gross.

RT: What about the naïve economic model here? The backlist
is already gone from publishing with life + 70—publishers are already not
investing in works that will pay off over 20 years, even with that very long term.

A: you might take more risks on an unknown if you think
there’s more money around.

RT: what does that have to do with the term? Your time horizon
is still going to be 1 year. [See also “I’ll be gone, you’ll
be gone.”]

Jake Linford: you’re really telling a desert story not an
incentive story: this person deserves a reward and we need to create some sort
of system to give them a reward.

Tang: there’s tons of data that the industry is becoming
more risk-averse and more winner-take all, not willing to tolerate failure,
despite its concentration (because of its concentration?). [Cory Doctorow and
Rebecca Giblin say that the way to deal with the bully taking your kid’s lunch
money is not to give your kid more lunch money; this is a statement about ©
rights.]

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WIPIP: Innovation policy

Posted on February 1, 2025 by rtushnet

Michael Burstein, The Law of the Direction of Innovation

Foundational texts: NBER Rate and Direction of Inventive
Activity, and revisited. But we need to ask: what innovation should we
prioritize? What innovation, by whom, and for whom? These are contestable
subjects of political choice. Health law scholars have started to ask why so
many me too drugs instead of novel therapeutics; trying to generalize from
these questions.

Positing two axioms representing conventional wisdom in law
& business: (1) entrepreneurial activity, mediated by price signals and
supplemented by exclusive rights, is the best way to establish the direction of
innovation. (2) private ordering of innovation policy takes place largely in
the absence of legal structure; law’s role is only to ensure that IP
facilitates adequate price signaling.

This is wrong in a few ways. Startups direct innovative
efforts towards funders’ interests—structured by VC incentives. Incumbent firms
are influenced by corporate rules. Covenants not to compete matters. That’s all
not just price. Even if was just price, IP doesn’t mediate price in a vacuum;
IP makes choices. Market demand also doesn’t equal social demand/value of
innovation. Gov’t funding remains an important tool of innovation policy.

How do we get an innovation ecosystem w/striking disparities
in investment/development of tech that we see today? VC investment is mostly in
IT and consumer-oriented stuff. Silicon Valley has become optimized to produce
those kinds of innovations. Crypto, but not encryption from same underlying
tech base. Crypto has low capital requirements, low barriers to entry.
Encryption is deep tech, w/long and uncertain regulatory cycle/demand, but
potentially much greater social value.

We’ve had different innovation systems over time—Bell Labs,
corporate R&D.

One goal: challenge notion that innovation is part of market
alone and not part of legal choice.

Gaps in literature to fill: economic literature has some
useful modeling, but doesn’t explain mechanisms by which economic incentives
actually arise. Innovation ecosystems may be described, but each part of
ecosystem is molded by various laws, private law and public law. In law, we tend
not to see the ecosystem as deserving of integrated study—we tend to atomize
each piece.

Law influences direction by structuring relationships among
firms, individuals, and markets (VC contracts are an example: generally
applicable law rather than innovation specific); by delineating entitlements
(creation/enforcement of legal rights or creating space for nonmarket
innovation); creating or limiting markets—shaping demand (export controls that
limit the addressable market for certain tech); subsidizing investments,
generally through gov’t spending or the equivalent (gov’t grants).

Harder cases: corporate governance—that shapes both
individual firms/people as well as markets as a whole. R&D tax credits; gov’t
procurement—both a subsidy and market-making. Regulation—can prohibit and can
structure what people can do, and direction of innovation responds in kind. IP
may operate across modes. Delineating entitlements and subsidizing investments
by overcoming public goods problems, but also shapes market, e.g. by
identifying what’s protectable and unprotectable and by shaping licensing law.

Sapna Kumar: how does the model handle goods that more
closely resemble public goods than private goods, like new antibiotics and
vaccines for infectious diseases less common in the US now (but might be in the
future). Infrastructural goods might be different.

A: the market paradigm tells us the underproduction problem
is bigger with such goods, so it wouldn’t surprise him if things like
regulation/gov’t procurement play a bigger role there.

Rosenblatt: people are uncomfortable with value judgments:
which technologies are value-promoting and which aren’t.

Kumar, Scientific and Technical Expertise after Loper Bright

Her impression: majority fundamentally misunderstood
intertwining of sci/tech expertise w/statutory interpretation. Lessons we can learn
from patent litigation about how judges acquire needed knowledge about technical
issues. Proposal: funding neutral experts for appellate courts for complex
administrative law cases.

Loper Bright: Judges must independently interpret statutes. Judges
must exercise independent judgment when they interpret ambiguous statutes;
adopted very narrow version of Skidmore deference—can’t defer to agencies but
can look for persuasiveness, doesn’t seem different from being persuaded by a
party or amicus. Claimed holding based on APA, but framed decision w/in Art.
III arguments—invoked Marbury twice.

Many prominent scholars claim lots of deference is left, but
her own view is that lots has changed. Courts are forbidden from deferring. LB
might exacerbate politicization for judges. Some judges may try to improperly
defer. But what about judges who try to faithfully follow LB—what is a
deference-free system of interpretation?

Patent has some lessons! District judges struggle to
understand complex sci/tech, which contributes to patent cases being
time-consuming. They cope by relying heavily on expert tech tutorials,
technically trained clerks, tech-trained magistrate judges, and neutral experts
for complex cases, sometimes special master or technical adviser. How does the
CAFC cope? Expertise of the judges themselves, and technically trained law
clerks.

We don’t have any of that for APA situations. No means for
parties providing tech tutorials; appellate courts have few technically trained
clerks; page limits on briefs and non-tech trained lawyers make it hard for
judges to learn what they need; no means for hiring neutral experts at
appellate level.

Neutral expert proposal has been floating around for a bit:
Breyer & Leventhal, JJ, both proposed. Common in other countries, EU and
England. Best of both worlds—independent judgment of judges & access to
reputable info on sci/tech.

Implementation: Congress could fund it up front (unlikely);
appellate courts could do this on their own and bill parties for cost (is this
allowed?). Experts would explain background sci/tech, not opine in law. Give
teachings in written form, subject to party response. Goal to prevent overreliance
and opacity, while preserving adversarial system. Patent system suggests that
this can work. This isn’t a substitute for Chevron, but it’s something.

RT: Could an appellate ct send to dct for this purpose?

A: would take amending the APA.

Burstein: can appellate courts appoint special masters?

A: seen conflicting things—need more research into their
inherent authority.

Jacob Sherkow: there are original APA actions in the dct—those
could have experts.

Q: generalist judges are always coming into situations they
don’t know anything about—music, reinsurance markets, complex family
situations, how do ski resorts work. That doesn’t mean anything you said is
wrong. But why is science special?

A: dct often plays a filtering role.

Q: problem where you can’t find an expert who isn’t in one
camp or another—an interest in advancing (or not) large hadron collider
projects. Maybe you need to hire 2-3 with different ways of looking at the same
thing.

A: that’s true.

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WIPIP: Copyright: Infringement & Enforcement

Posted on February 1, 2025 by rtushnet

McFarlin, Restoring Joint Authorship

We apply a separate accrual approach to © infringement:
Petrella. But a one-time plain & express repudiation of joint authorship to
a claim for accounting, Zuill, 9th Circuit. Should we continue to do
so? Chuck Berry & Johnnie Johnson disputed authorship but Berry’s name was
the only one on the record—counts as an express repudiation, so he loses his
chance to claim authorship. But if Petrella could assert claims 40 years later,
why not Johnson?

Zuill’s rationales: (1) inequitable to let claimant wait in
the weeds and then pounce—seems inconsistent with Petrella. (2) adverse
possession by ouster, since © is like real property in that it lasts for a
really long time. Flawed analogy? Ouster generally means sole possession of a tangible
thing in exclusion of co-owner. Requires actual dispossession, not just declaration
or failure to share profits. Stability of title has economic importance, sure,
but so did Scorcese’s title to Raging Bull. How can you become an author of
another’s work by prescription?

Should new claimants be able to reopen this, like Johnnie
Johnson’s estate?
Glynn Lunney: what counts as an accrual of a cause of action? W/infringement, a
new infringement. How does a claim of authorship accrue multiple times?

A: the claim accrues as an acclaim for an accounting upon
the failure to pay profits. A new revenue source comes in; the failure to pay
creates the new claim.

Lemley: test case where there’s a repudiation but no profits
for five years. What should happen then? (He thinks the inconsistency is that
Petrella is wrong.)

A: standing for declaratory judgment, but no bar to future
suit. That’s an inconsistency—using declaration standing for claim and then
putting a bar on the accounting.

RT: Evidentiary difficulties (which aren’t as pressing for
Petrella type cases)? What about applying this to WFH?

A: courts are already dealing with that, in e.g. the Jack
Kirby case, and yes, to be consistent you’d probably have to extend that to WFH
claims.

Q: how does this affect termination rights?

A: also a big problem. Also exists w/infringement and
separate accrual. Courts may subconsciously be anti-joint authorship and
pro-sole authorship, even if it’s not coherent.

Smith, Looser Forms of Parody

Campbell initially defined parody for © purposes as
commenting on the original work; if it has no critical bearing on the substance
or style of the original composition, its claim to fair use diminishes. Some
decisions didn’t let you target the author or the subject: Salinger v. Colting;
Dr. Seuss v. Penguin Books; Kienitz v. Sconnie Nation. Split though b/c cases
like Burnett v. Twentieth Century Fox allowed targeting of author or someone associated
with the work. Targeting the subject of the work—generally involving a photo.
WWE v. Big Dogs—courts generally found that to be satire but not parody; some
cases push the line.

Then, Goldsmith twice said that parody targets an “author or
work.” So, the questions: parody of what: what can a secondary work target? And
what are “looser forms of parody”? (In discussion she suggests “String of Puppies” as
a possibility.) Is it on a scale or spectrum? Is there something between parody
and satire? Is it something that’s more effective with the borrowing albeit not
strictly necessary?

Linford: parody v. satire as proxies for necessary v. not
necessary? But how do you figure that out?

Newman: Barbie fair use cases are not really commentary on
the expression of Barbie but commentary on the social meaning of
Barbie that she had accrued over time. [I think that’s revealing of the
vapidity of the demand that a parodist comment on the “work”—not all parts of
the work are protected by copyright law. Just like dissecting a joke kills it,
the plaintiff in a fair use case tries to break the parody/commentary down and
say it’s not required for whatever the defendant is trying to say.]

Lemley: Ralph Nader Mastercard ad: the judge was motivated
not to rule for Mastercard & accepted that this was a parody of sanctimonious
merchants of high interest consumer debt, but that was clearly not the primary
message Nader was trying to send. One question is what the standard of proof
is; another related one is who the audience is—“may reasonably be perceived”
suggests the (reasonable) audience should be consulted.

Comments note that Europe (wisely) doesn’t distinguish
parody from satire.

Lunney: courts like to look reasonable and split the baby,
which may explain the language distinguishing satire in Campbell.

Rub, Circumventing SCOTUS

Copyright law needs updating, but Congress is not doing it.
Examining 21st century opinions Eldred, Grokster, Golan, Kirtsaeng,
Star Athletica, Aereo– attracted many amicus filings, use in copyright
casebooks, citations in law reviews, so we understand them as important. But
lower courts don’t always do much with them.

Part I: Narrow interpretation cases: Aereo, Star Athletica.
Aereo: volition doctrine could be on the chopping block, but the Court didn’t
name it, and the Second, Fifth, and Ninth Circuits have subsequently ignored it
while the dissent blessed volition (and worried about its future) and the SCT
majority didn’t disagree—no impact on the volition doctrine’s development.

Star Athletica: can I draw it? Seems a very test to meet.
Separability still has some teeth, in some courts, sometimes; some courts apply
a low standard and some courts don’t. Courts use other filtering doctrines
extensively to replace separability. This is the messiest.

Grokster: worried that SCT created an independent duty to
filter. But the tech moved on and distribution models moved on. Turns out that
Grokster didn’t do much. Inducement cases tend not to turn on failing to filter
and looking for profit. Got filtering through business models [and suing Cox
and other connection providers!]

Kirtsaeng: Court prioritized free movement of copies. But
market segmentation is still here. Most © materials are distributed digitally.
Second Circuit shut down secondary market in digital copies (ReDigi) and
libraries too (Internet Archive). Price discrimination by right is still here
nonetheless.

Eldred & Golan: No limit on Congressional power to
expand copyright—but user groups got organized to press against expanding
copyright in SOPA/PIPA. Legal power can exist without political power. Didn’t
open floodgates to new legislation. [Though that’s perhaps b/c of point one:
Congress can’t often get it together to act.]

Even most significant SCT decisions w/Ginsburg & Breyer
exert only modest influence on broader trajectory of © law. Repeat players in
ecosystem can bypass any disturbance to Force. © is incremental. 0.7
opinions/year can’t do much. Are we spending too much time focusing on SCT? Is
this minimalism justified?

RT: Do you mean © law or © practice? You make claims about
the broader trajectory of © law but a lot of your points are about © industrial
relations. Likewise, effects of Star Athletica on registrations/C&Ds may be
very different.

Lunney: If Grokster had come out the other way, would the
market look the same today as it does or would it be radically different? I
think it would be different. Eldred, likewise—if Lessig hadn’t brought the
case, would there have been enough political focus to develop the political
pressure against term extension?

A: sure. Maybe not overruling Sony was a message.

Lemley: maybe we’ve ignored cases we should have paid
attention to—Petrella has completely reshaped copyright litigation by trolls,
with big effects on substantial similarity doctrine in music cases as a
consequence (as well as other things like the law developed around actors like
Higbee). Fourth Estate, the registration case, has also had a big impact.

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WIPIP: IP for the Larger World

Posted on January 31, 2025 by rtushnet

Koo, De-Colonising Copyright Law

Is fair use even possible outside the US? If we want to
export fair use, what is it we actually want to export? Many US academics many
not think it’s the greatest idea—if we had a blank slate to redesign, what
would we do?

Issues: © not fit for purpose in developing English-speaking
Commonwealth countries—Caribbean, Southeast Asian. Issues with access—sometimes
access is only possible through piracy. Single author doesn’t fit well with
collaborative creative cultures—reggae music. Indian and African influences on Caribbean
music; restricts innovation to current forms. What is considered original
creation? Who is considered an author? Like US, law was traditionally imposed,
but we continue to impose them on ourselves. Doesn’t reflect needs/lived
realities. Cut and paste from UK or from international treaties. Lack of
inclusion and lack of influence of these countries—may not even has existed as
independent/as republics when these agreements were being negotiated.

TWIL (third world international law) or postcolonial approach?
TWIL approach: attempt to destroy international law will seem impossible b/c of
link to trade. But this framework is undemocratic and oppressive. How can the
reformation take place?

Undemocratic: int’l treaties demonstrate a battle between
have and have-not countries

Harms: ignores collective creative cultures, limits access
to works, hamstrings innovation and cultural creative processes. Maybe not allowing
students to photocopy at will, but maybe allowing museums and libraries to
digitize.

Borrowing copyright concepts may simply amount to trading
colonizers for imperialists.

Rosenblatt: mix of cultures in Trinidad & Tobago

A: Yes, so what does creation look like? Influence is
everywhere; can be accused of infringement from other places?

RT: suggestion to leverage TRIPS?—ability to retaliate for
non-IP related trade violations of the US, which are clearly going to feature
strongly in the next 4 years—prior TRIPS rulings on online gambling/the US
homestyle exception for small businesses allow other countries to retaliate
including by suspending their IP laws w/r/t US IP. Why not allow students or
libraries to photocopy US works at will?

Digital versus analog: access that is limited to countries
that need it will either require strong digital walls or analog copies.

Do you think that designations of origin are better forms of
IP? Madhavi Sunder/IP3

Is there a universalist end state? If so, then might want
something that could be imperial/ you wouldn’t worry about being accused of
infringement from outside.

A: wouldn’t necessarily be worried about a universal system
if it worked well. Trinidad & Tobago is tourism-based; any system that
allows more sources of investment/development would be good?

Designations of origin—not useful immediately, only if you’re
known. Have a GI for a T&T steel band, but have to convince people outside
that it’s worthwhile.

Irene Calboli: be provocative, go bold—don’t have to have
all the details yet while you’re making the case for reform, rather than trying
to mitigate.

Gebru, Cultural Appropriation as Passing Off

No authoritative definition, but common features: power
imbalance, lack of understanding, harm of some sort, context matters. First
mention of “cultural appropriation” in OMG Dolls case—though court didn’t like
it.

Proposed taxonomy has two axes: is the symbol diffused or
distinct; is the use noncommercial or commercial? Diffused: place-bound; legally
recognized group; shared across different communities. Would only allow legal
intervention with a commercial appropriation of a distinct symbol. Diffused and
noncommercial: Justin Timberlake’s cornrows. Specific and noncommercial: Kente
cloth used by congresspeople after George Floyd’s death. Diffused and
commercial: Aunt Jemima. Specific and commercial: Navajo symbols used by Urban
Outfitters, litigated by Navajo as TM case.

Passing off theory—extended to GI theories with “Greek
Yogurt,” “Champagne,” etc.

Case studies: Jeep Cherokee. Is there collective goodwill? Yes,
some signaling happening—trying to communicate meaning. Official name of the
source group; distinct group w/place, centralized institutions, legal status. Easy
case for framework.

Gucci’s use of turban: sacred product; market value?; other
cultures have turbans, so is it unique—harder question.

Q: privileges centralized cultures—which bakes in a certain
perspective. Why should we privilege that? The reason a culture is diffuse
might be because of previous cultural violence, now immunized. Maybe that’s how
it has to be. [The recent book by Carrie Lowry Schuettpelz, The Indian
Card: Who Gets to Be Native in America is really good on this point.]

A: yes, it is a present day snapshot of what consumers think
right now.

Q: then just be very transparent about that.

Buccafusco: Gucci seems like a pretty expressive company, so
what’s the difference between Justin Timberlake’s dreadlocks and Gucci’s
turbans? Is it just that Gucci is monetizing directly and Timberlake
indirectly? Plus, there seems like there’d be a lot of food in your regulatable
quadrant. Are you just reinventing GIs?

A: food might be too diffuse.

Rosenblatt: are you concerned at all with transformation?
Also, what is a culture that can be appropriated? Subaltern subcultures like
punks, some organized and some less so, can get appropriated.

Buccafusco, Masur, & Whalen, Measuring the Value of
Distinctive Brands: Evidence from the Bordeaux Wine Market

Distinctive here means different from other marks, not well-known.
Everyone agrees that branding is important. Chasse-Spleen: easier to find. Suggestive
or arbitrary or fanciful but not in the “jumble of letters” sense. Question: to
what extent do distinctive brand names help generate price premiums?

In many markets, we don’t see much congestion around the
semantic core, and TM law keeps firms from clustering. But! The market for
Bordeaux wines comes from the 18th century, when TM law wasn’t doing
much work. More than 5000 unique wineries, 150 million gallons of wine, largely
homogenous products: red blends of Cabernet and Merlot. Most branding choices
more than a century ago. Median price is $15/bottle, but some bottles sell for
$1000s/bottle. 28% of producers share a virtually identical name w/at least one
other producer. 150 with LaCroix in their name, including 6 Chateau LaCroix
alone.

H1: distinctively named wines will command higher prices.
H2: even after controlling for wine quality. H3: price differential for distinctive
names will be higher for high-quality wineries than for low-quality wineries.
Scrubbed la, de, des, chateau and computed pairwise similarity scores b/t each
wine name and every other wine name. Measured similarity by nearest ten
neighbors.

H1 supported: highly similar wines: $13.44 expected price.
Highly dissimilar: over $27.

H2: assume a rating of 90, a median good score. 21.68 versus
25.02, so the price premium persists, about 15%

H3: low rating wines, difference is $2.21; high rating,
difference is $9.59 both about 200% price difference

We don’t detect meaningful distance costs, that is, being
too unique—but there aren’t any Chateau XZMOXO or the like in our datasets, so
we might not see that.

We detect no price benefit for low priced wines that might
have gotten a boost from similarity to high-priced neighbors. “Chateau LaTour
Margot” not so good.

Why don’t they switch? Tradition? A lot are owned by multinationals,
so why not?

Congestion is a problem, and TM should continue to push
brands away from linguistic core

We also don’t have enough variation in quality data to
identify effects of investments in quality on differently named types.

Fromer: Is it possible that having a similar name decreases
incentives?

A: Even among the high end there are lots of very similar
names. Very hard to tell; not making causal claims.

Calboli: are there registrations?

A: probably not. Certainly not in 18th century.

Calboli: Would like to know whether logos help distinguish—crests
of specific noblemen.

A: trying to pull, but there aren’t pictures in many
circumstances.

Calboli: how often are there overlaps on a given menu? Distribution
might differ.

A: Yes and no.

Q: does any law govern name changes? Champagne region has
weird rules I know.

A: probably; also a ton of social pressure.

Calboli & Izyumenko, Role Models Matter: Surveying
Gender Gap in Intellectual Property Teaching in Institutions of Higher
Education

Inquiry will span US, Europe, Asia (where numbers of women
are lower, especially in higher positions). Data collection and surveys.

Questions about data collection?

Mazzurco: extending the tenure clock as an issue: Women have
to extend their tenure clock b/c if they take leave, they can’t write while
they’re on parental leave b/c they’re taking care of a newborn; men often don’t
take leave or if they do, they are able to write while they are on leave so it’s
an extra benefit for them.

A: that may also affect pay.

Q: you should also ask the same questions of men to learn
about whether there are differences in treatment/responses/perceptions.

from Blogger http://tushnet.blogspot.com/2025/01/wipip-ip-for-larger-world.html

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WIPIP Panel 2B Copyright: Authorship, Ownership

Posted on January 31, 2025 by rtushnet

Newman, Adoption as Authorship

Concept of being an author: personally generating all the
sensory signals other humans will process as part of the work—comes into being
because my mind decides to put it there and my body guides it. Certainly in
authorship disputes between the person who generates the idea and the one who
creates the detailed expression, the latter is favored. But then it gets more
complicated. Setting up a shot versus clicking the button to take the shot: Sarony.
What matters is whether you had a clear intellectual conception and you used
tools to embody the expression. To be an author is to have a fully formed work
in your head and transcribe it in some medium? But even that is a bad model of
authorship usually. What happens is more: I generally know what I want to say,
and engage in trial and error to see what I can get on paper that makes sense.
It probably bears some relation to what I started with, but not identical. The
fundamental act of authorship is getting to some point where you recognize some
set of signals that you recognize should have communicative meaning that you
adopt as a communicative act. Until adopted, it was just a set of signals;
adoption makes it a communicative act. Alfred Bell’s famous dicta: defective musculature
or clap of thunder can be adopted. Don’t want to limit it to only the final
product you choose to publish—if you’re engaged in working, it’s inherently
adoptive, whether or not that’s your final product. Jackson Pollock: if one of
those, he didn’t like the result and chose to discard it, that canvas is not a
work of authorship.

RT: Read Karen Gover, Art and Authority. You aren’t saying
the core is adoption rather that it’s the union of conception and adoption –
have to already be engaged in a process of creation, not just wandering down
the beach looking for driftwood—Duchamp’s urinal, or adopting the Constitution
or the Rifleman’s Creed as your own expression.

A: he does think picking up the driftwood is expressive but
not eligible for copyright because it’s a preexisting fact, just like using AI and
picking a result might produce expressive work that’s not created by you. [RT:
then what makes your theory a theory of copyright and not a theory of art?]

Betsy Rosenblatt: introducing intent? What about private
works?

A: publication isn’t important, but communicative intent is.
You can adopt something as your unpublished work.

Buccafusco: you’re defining authorship, not originality. [I
will note that Feist seems to conflate those two.] There are some cases of
authorship that might not have originality.

Q: if you reject a bunch of photos as bad, are you an author
of them?

A: you took the photos with the intent of making a work, so
probably. There’s some sense in which the subsequent act of reviewing the works
I’ve generated/caused to be generated and identifying which are satisfying
should be regarded as important.

Q: fixation as a proxy for adoption, at least as of 1976?
Compare to Hemingway common law copyright case.

Op den Kamp, First: Shifting Benchmarks in Film History,
Copyright, and Archival Practices

Palmedo, Lutes, & Safner, The Demographics of Authorship
in the United States

Video essay about Leland Stanford’s commissioning of Edward
Muybridge to try to determine whether horses’ feet left the ground all at once
during a gallop. Copyright claimed 1878 by Muybridge, but Stanford published
The Horse in Motion in 1882 with Muybridge’s name left off title page,
mentioned only as technical assistant. Royal Society in UK shut him out as a
result. Stanford used photos as raw material, informational only.

Rosenblatt: Muybridge did achieve IP protection, just couldn’t
capitalize on it as he wanted to b/c Stanford was so powerful. Is this a story about
IP or about power? The power of narratives to swamp law?

Q: but was Muybridge really a lone author or was there real
collaboration?

A: Stanford is able to produce witnesses who say he paid for
everything even though there are no written documents—it’s about the greater
tensions in his wealth (letting M live on his land for free, etc.). Though he
knew for years that M was registering © and taking out patents on inventions.

Brent Lutes, Demographics of Copyright Registrations in the
US

2011-2022 applications; 9 most registered types of works;
registrations by individuals; using registrations per person per year by zip
codes; geographic matching. When you control for education, effects of income
on registration go away—so income was a proxy for education. Education also
drives a lot of the racial/ethnic data. Urbanness is also important:
population/housing density. 10% increase in urbanness increases copyright registrations
5.5%, not coming from numbers or income—probably an agglomeration effect. Age
also matters too—older adults register more than younger adults, even
controlling for education and income.

Raw correlations with racial/ethnic groups were significant;
if there were educational and income equalities, the range would shift a lot,
but Native Americans would still not be registering very much and multiracial groups
would be registering a lot. More diverse areas are associated with more
registrations, but we don’t know which way the causation flows. We also know
that urbanness and diversity are correlated. Controlling for urbanness, still
there’s a positive statistically significant relationship with diversity.

Karol, American Art’s Little Copyright Secret: Why So Many
20th Century Artworks Are in the Public Domain and Why That Matters

Basic claim: most works were published and placed in public
domain when first exhibited for sale in commercial art galleries with no notice
and no restrictions on copying. We should presume, absent contrary evidence,
that midcentury visual art shown in a gallery for sale is in the public domain
unless the estate/foundation demonstrates otherwise. Limitations: American art
before Jan. 1, 1978. So roughly 1930-1977. Example: image from an art show from
a photographer who was in there—making copies—without restrictions.

Publication without notice terminated ©. Exceptions for
limited publication. American Tobacco v Werckmeister 207 US 284 (1907), pre
1909: no general publication because bylaws of Academy, where work was
exhibited, expressly prohibited copying.

Letter Edged in Black, ND Ill 1970: No restrictions on
copying, thus work of sculpture is in public domain. Others, including state
court cases, reason similarly.

But publication under the 1909 Act is notoriously outcome-driven—MLK
“I Have a Dream” case example b/c courts often think that preserving © in
canonical works is important.

Museums as interest groups in support which would help them
digitized collections?

Courts should not worry about issues going forwards since
this is only for pre-1978 works. But will publishers accept the truth?

Deborah Gerhardt: Why not go all the way to 1989, when
notice was eliminated fully as a requirement? Also, it’s not just visual art!
Film, other modalities.

from Blogger http://tushnet.blogspot.com/2025/01/wipip-panel-2b-copyright-authorship.html

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