Author Archives: Megan Carpenter

The Arts and Economic Development: A Hot Mess at a Museum in Dallas

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At the intersection of economic development and the arts sits a dispute about property rights and moral rights.  The Nasher Sculpture Center in Dallas, Texas, houses a world-renown collection of art in a building that was designed by famed architect Renzo Piano especially for that purpose, in that location.  D Magazine describes the patented roof system as

“a barrel-vaulted roof-cum-ceiling made of 3-inch-thick, 1,200 pound glass panels, and, suspended above the glass, a sunscreen of millions of tiny aluminum oculi aimed due north.  The sunscreen was designed using the precise longitude and latitude of the Nasher, and it accounts for every hour of the Earth’s 365-day trip around the sun. Standing in the gallery, a visitor looking up and to the south sees what appears to be a solid structure through the glass ceiling. Turning 180 degrees and looking north, though, he sees open sky. The system allows into the museum soft, full-spectrum light that is not only safe for artwork but creates ideal, transcendent viewing conditions.”

The Nasher was designed to be a focal point for economic development in the area, and it has been wildly successful; the Dallas Arts District now houses a variety of cultural venues including the Dallas Museum of Art, the Myerson Symphony, the Trammel Crow Museum, and the AT&T Performing Arts Center.  In fact, it has been so successful that in order to take advantage of the economic development in the Arts District, a developer has been building Museum Tower, a 42-story residential high-rise development, on an adjacent piece of land.

The glass façade of Museum Tower, however, reflects light up to 250% the strength of the sun onto the Nasher from the north at an intensity that can kill plants and trees, damage artworks, and blind visitors.  The gardens at the Nasher, including live oaks, are threatened.  A Picasso had to be removed to avoid damage.  James Turrell claimed that his piece installed at the Nasher, “Tending, (Blue)”, had been destroyed by the Tower, because it blocked the sky that was to be visible through the aperture at the top of his skyspace.  The Nasher had to close the Turrell exhibit entirely.  There would many property and moral rights issues to spot here, if only this were a law school exam.

The parties are currently in a protracted mediation process.  More can be found on the dispute here, here, and here.

Authorship and Brain Art

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To pick up on some earlier discussions that Jacqui Lipton and I have been having about authorship and art (and some of Bruce Boyden’s comments re: the same):  A student who is doing an externship at a local small business incubator told me about a local start-up that seeks to enable people to create art directly from the brainwaves of individuals.  Called Braintone Art, the company has created a device which connects thoughts to canvas without the volitional “middle-man.”  Through a headset, the software is able to collect brainwave thought patterns and “project [] emotions as abstract artwork on the digital canvas,” which can then be printed onto a regular canvas.  If unconscious slips from a clap of thunder may be claimed by an author as his own under Alfred Bell, then perhaps this is not a difficult question.  But still, there seems to be something less authorial, and definitely something less creative, about the end product.

Either way, I’m fairly certain there is a perfectly apt quote from Steve Martin’s “The Man With Two Brains” that I’m missing here.

[Thanks to Maya Koyfman for the info.]

West Virginia University and Fastees: Not So Fast

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[DISCLAIMER: It is not long after someone meets me that they learn I’m from West Virginia.  I am fiercely proud of my home state, and a loyal Mountaineer fan.  (In fact, way back when, I got married on West Virginia’s birthday. On purpose.)  So, I am delighted to write a post about two of my favorite things: West Virginia and trademarks.]

West Virginia University has requested a preliminary injunction to stop MivaMan, LLC/Fastees.com from producing allegedly infringing t-shirts.  WVU strictly polices the production and licensing of apparel containing its registered and common law trademarks.  It is unclear, however, which trademarks are being used in these shirts.  And likelihood of confusion or actionable dilution seems a bigger question.

From the WVU press release, the list of WVU marks linked above, and local news accounts (here and here), it appears that WVU claims Fastees is infringing trademark rights in the words “West Virginia” in connection with the University, and in the slogan “Let’s go Mountaineers!”, as well as by using the official colors and typeface of the University.  Indeed, many shirts do contain the words “West Virginia” and a couple of them reference the common law mark “Let’s Go Mountaineers!” through the language “Let’s Go! Drink Some Beers!”*  The shirts also use blue and gold, which are the University colors.  Those colors are also the official colors of the state of West Virginia, as adopted by the State Legislature in 1963.

Without having seen the Complaint or being privy to the underlying facts, it is not clear to me that Fastees is using WVU’s marks.  And whether any of this is done in a way likely to be confusing to consumers, or actionably diluting by tarnishment, is further in doubt.  In the WVU Statement, Becky Lofstead, vice president of communications, is quoted as saying, “It is WVU’s responsibility to protect the reputation, integrity, image, and goodwill of the University through the proper use of our federally registered marks.”  While some of the t-shirts sold by Fastees are certainly less than classy, I’m not sure trademark law is the best way to protect the WVU image here.

*The middle exclamation mark is a reference to the stadium chant by fans at football games.  One half of the stadium yells, “Let’s Go!” and the other side follows with a resounding, “Mountaineers!”

I’m a Pepper, You’re a Pepper, Dublin’s not a Pepper Anymore

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To follow Mike’s shift toward anti-competitiveness (and beverages):

Dublin Dr. Pepper and Dr. Pepper Snapple Group have settled their trademark licensing dispute and Dublin Dr. Pepper, the beverage darling of the Lonestar State, is no more.

Dublin Dr. Pepper is a Texas favorite.  This original Dr. Pepper was created in 1891, and its birthday is still celebrated every year in the town of Dublin, which changes its name to “Dr. Pepper, Texas” each year on that day.  What makes Dublin Dr. Pepper unique in today’s market is the fact that it has continuously (even during difficult times, including WWII sugar shortages) been manufactured with cane sugar—which gives it a distinct (many would just say “better”) taste.

For years, Dr. Pepper Snapple Group and Dublin Dr. Pepper operated under the terms of a licensing agreement.  The agreement provided, inter alia, that the sales territory for Dublin Dr. Pepper would be limited to six counties in Texas, and that Dr. Pepper Snapple Group would approve designs for the Dublin Dr. Pepper bottles.  Several months ago Dr. Pepper Snapple Group filed a complaint alleging that Dublin Dr. Pepper violated the terms of the agreement by selling Dublin Dr. Pepper outside of its agreed-upon six county territory (through internet sales, telephone sales, and otherwise) and creating a likelihood of confusion in the marketplace.

Dublin Dr. Pepper countersued, claiming that Dr. Pepper Snapple Group wanted to create its own “retro” version of Dr. Pepper, using trade dress similar to that of Dublin Dr. Pepper based on designs Dublin Dr. Pepper had submitted for approval in the past.  (Dublin Dr. Pepper is quick to point out that Dr. Pepper Snapple Group’s version was made with refined beet sugars, however, and not cane sugar.)

The settlement agreement provides, among other things, that Dr. Pepper Snapple Group will make a Dr. Pepper with “nostalgic packaging” sweetened with cane sugar that will be distributed to certain parts of Texas—but it won’t be called “Dublin Dr. Pepper.”  Austin station KXAN reports on the story here, and the Wall Street Journal story can be found here.  Dublin Dr. Pepper’s original response and counterclaim to the lawsuit can be found here.  What the newly named “Dublin Bottling Works will be doing next is discussed in the Dallas Observer blog here.

The underlying issues would be good fodder for a trademark class, including establishment of trademark rights, trade dress, geographic designations, geographic limitations on sales, concurrent use, infringement, and trademark policing.

Where “C” and “D” Are Chords Instead

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As reported originally here in Texas Monthly, and most recently here by the TM Daily Post, Robert Earl Keen has taken a creative approach to settling a score (not a lawsuit) with Toby Keith.  (Additional interviews with Keen here and here.)

In an interview with Texas Monthly, Robert Earl Keen discussed the release of his new album, which contains a song called “The Road Goes On and On.”  Apparently, the melody in Toby Keith’s song “Bullets in the Gun” sounds remarkably like Robert Earl Keen’s well-known song “The Road Goes On Forever.”  But instead of suing Keith, Robert Earl Keen decided to approach the situation differently: “[I]nstead of getting really ugly about things—I don’t really believe in lawsuits or threats—I took the Alexander Pope road and answered this guy in song.”

The song is called “The Road Goes On and On.”  While it doesn’t name Toby Keith explicitly, Keen acknowledges that the song is about him, and the song describes Keith in a variety of ways, including, as a “goldilocks . . . all duded up in [his] Cowboy Crocs singing the same old song.”  (Does Keen mean crocodile-skin boots, or the popular Crocs-brand shoes?  I find the latter interpretation much funnier, and I did see multiple, if random, internet references to Toby Keith wearing Crocs…)  Some of the lyrics include:

I don’t care what you say

I never liked you anyway

Wouldn’t give you the time of day

If I had the time to spend

You’re malicious and downright cruel

Superstitious, so uncool

Best wishes, you loudmouthed fool

I hope I never see you again

You’re a regular jack in the box

In your clown suit and your goldilocks

The original liar’s paradox (you’ll have to Google that)

How in the hell do you think you’ll make it

When the real test comes and you just can’t fake it

Your sycophants say they can’t take it and leave you lyin’ flat

Interesting alternative to the C&D.  Now we can wait and see if Google writes a song about how Robert Earl Keen shouldn’t use “Google” as a verb…