First is Jonah Lehrer’s “Groupthink,” from the Jan. 30, 2012 issue of The New Yorker.  The full article is subscription-only, but the preview is here.  In part because it resonates somewhat with the description of “emergent creativity” found in my work on fair use, the quotation that made the most sense to me right away is this:

According to [UC Berkeley psychologist Charlan Nemeth], dissent stimulates new ideas becuase it encourages us to engage more fully with the work of others and to reassess our viewpoints. ‘There’s this Pollyannaish notion that the most important thing to do when working together is to stay positive and get along, to not hurt anyone’s feelings,” she says. ‘Well, that’s just wrong. Maybe debate is going to be less pleasant, but it will always be more productive. True creativity requires some trade-offs.”

Professor Nemeth’s website is here.

Second is this post at the Chronicle of Higher Education by Geoff Pullum, about the challenges of working with and listening to colleagues who discomfort us.   A key quote:

The joy of working in a university, for me, has nothing to do with wearing gowns or drinking sherry in the faculty club or standing at oak-paneled podia in steeply banked lecture theaters imparting vapid maxims to the young the way professors in movies do. It’s about being in the company of people who are smarter than I am.

If I could understand everything I hear from colleagues and visitors, if I never experienced moments of panic about not being able to keep up, I would be working in the wrong place.

If I were to reach a bit and spend more time on the question, I might be able to connect both of these to the idea of creativity as “play,” as Julie Cohen develops that idea in Configuring the Networked Self.

Art is both love and friendship, and understanding; the desire to give. It is not charity, which is the giving of Things, it is more than kindness which is the giving of self. It is both the taking and giving of beauty, the turning out to the light the inner folds of the awareness of the spirit. It is the recreation on another plane of the realities of the world; the tragic and wonderful realities of earth and men, and of all the inter-relations of these.

The full letter is here.

In very much the same spirit, do not miss Lewis Hyde’s wonderful The Gift.

“Tequila” is registered appellation of origin for spirits produced in five Mexican states. A storm is now brewing over proposals in Mexico sponsored by the tequila industry that would limit the use of the word “agave” — the genus of the blue agave plant from which Tequila is distilled — in connection with both tequila itself and other spirits (mezcal and banacora) distilled from various agave species.

Resistance is growing.  Even the botanical community is pointing out the absurdity of the limiting use of a genus when the tequila industry itself relies on a particular species. Given opposition by Cofemer, Mexico’s Commission on Regulatory Improvement (within the Ministry of the Economy), adoption of the standard is far from a sure thing.

• Coverage from The Economist (”Storm in a shot glass”).
• Opposition by the Tequila Interchange Project (”Stop Nom 186″).
• Coverage and opposition by Diffords Guide.
• Homepage of the National Chamber of the Tequila Industry (CNIT).
• The NOM-186 proposal (in Spanish), from the Ministry of the Economy. A related proposal comes from IMPI, Mexico’s Institute of Industrial Property, or intellectual property agency.

So many IP things to blog about, so much to catch up on … I’ll start with this:

If an Oreo isn’t round and black and white and crazy sweet, is it still an Oreo? What is the essence of Oreoness?

What the Chinese team at Kraft figured out is that an Oreo is an experience. You pry it apart, scrape out the filling with your teeth and plop it into a glass of milk. Their shorthand for the concept: “Twist, Lick, Dunk.” All the wild new shapes and flavors of Oreo wouldn’t work in China, unless they could somehow share that same experience.

Full story here.  For those few of us who enjoy thinking about the roles and histories of “things,” this is an entertaining and instructive tale.

An emerging by-product of Pittsburgh’s claim to be a new entertainment capital (see blog post here – the claim is not entirely without merit, as a lawyer might say) is that the incumbent local copyright / trademark academic gets a particular blend of interesting questions from the local media.

Last week, I explained the in’s and out’s of infringment of music copyright to the music critic of the Pittsburgh Post-Gazette (you read that right:  a small urban daily still has a music critic!) in connection with an allegation that Pittsburgh’s own hip hop megastar, Wiz Khalifa, appropriated “Black and Yellow” from a local unknown, who recorded “Pink and Yellow.” The problems that Wiz’s accuser faces are two-fold.  One, it appears to be unlikely that Wiz ever heard or otherwise had access to the plaintiff’s song.  Two, on my quick listen, the original elements of the songs don’t sound much like each other.  The core of the claim seems to be the similarity in the titles — “and Yellow” — which is a thin foundation for a successful copyright suit.

Today, the local angle is Andy Warhol, son of Pittsburgh.   The Velvet Underground has sued the Andy Warhol Foundation, which administers rights to the late artist’s works, for trademark infringement.  I haven’t seen the complaint, but I am told that VU is unhappy that the Foundation licensed the banana image that Warhol designed for the band’s 1967 debut, Velvet Underground and Nico, for use on i-related (that is, Apple iPad-related) products.

The IP issues there are a little bit tortuous.

The complaint apparently alleges that Warhol’s banana image was never “officially copyrighted.”  Presumably the reference is to the possibility that the work was distributed (as cover art) without an appropriate copyright notice.  I don’t have a copy of the album lying around, but if you do, you can check that.  If there was no notice on the cover, then there’s a good chance that the image itself went into the public domain — the copyright public domain, that is, right away.  Just about anything is possible in IP, but that (the absence of notice) strikes me as unlikely.  The other argument that VU has raised is that the image was in the public domain in the first place, apparently because Warhol based his design on a picture of an actual banana.  That argument is unlikely to fly, unless Warhol’s banana is actually identical to the source banana image.  If Warhol made any “creative” changes to the source image, then there’s little doubt that a valid copyright was possible.  Nevertheless, it’s possible that copyright is out of the picture.  If the image is protected by a valid copyright, then the Foundation has an argument under Dastar that arguable trademark claims should not interfere with the Foundation’s right to license the image.   That preemption argument would keep anyone from even getting to the points in the next paragraph.

As for the trademark claim, the suit apparently alleges that the banana image has become the very symbol of the VU.  That may be true, but that doesn’t quite establish the band’s trademark rights; the legal question is whether the band has used the mark commercially so that consumers have come to associate the mark as designating the source of products (or services) that the mark is attached to.  Let’s assume that the band can make *that* case.  Then the question is whether the Foundation infringed the mark — used it in commerce in a way that caused likely consumer confusion.  Usually, one would think that any arguable confusion would arise at the point that the mark is used on the i-products (an iPad cover, say), but it appears that the actual sellers of the products are not targeted.  I’m guessing that the producers don’t have assets worth pursuing.  The Foundation clearly does.  But the tie between signing the license and causing consumer confusion seems … pretty weak.  VU may be Waiting for the Man to provide trademark redress, but at the end of the day, I predict a case of There She Goes Again.

Updated Jan. 13 2012:  Here is a link to the Pittsburgh Post-Gazette story about the case. The story doesn’t get the issue right; the question is not whether the public associates the banana image with VU or with Warhol.  The question is whether the defendant’s use of the mark (assuming that it is a mark), in connection with goods or services, causes a likelihood of confusion in the minds of consumers.  I’ve now had a chance to read the Complaint.  The key allegation reads this way: “The use of the Mark on goods purportedly licensed by defendant will likely cause, and continue to cause, confusion, mistake or deception as to the source or affiliation of such third party goods.”  If that’s the crux of the case, then I don’t think that the Complaint alleges facts sufficient to meet the statutory definition.  The Warhol Foundation has a decent chance of getting the trademark claims dismissed.

The iPad / iPhone cases themselves are produced by Incase, as part of a Warhol collection.

I recently noticed on SSRN an engaging paper that uses the parking chair problem as a lens on broader questions of property and legal culture:  “J. Locke, Op. Cit.: Invocations of Law on Snowy Streets,”  by MIT anthropologist Susan Silbey, forthcoming in the Journal of Comparative Law.  The abstract:

Each winter in the northern cities of the United States, a familiar scene illustrates tacit and deeply sedimented, yet common invocations of law. After a heavy snow storm, one can see old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects in recently shoveled out parking spots on an otherwise snow-filled public street. “Before snowfalls, a parking space belongs to the one who occupies it: you leave it, you lose it. In wintertime Chicago, however,” writes Fred McChesney in an economic analysis of this practice, “excavating one’s car [from the snow that fell on it] changes the system of property rights… The initial digger of the spot is given a limited monopoly for its use.”

Although calculating an efficient duration for the monopoly preoccupies some analysts, my attention to the practice of claiming parking spots on snowy streets derives from an interest in understanding legal culture, more specifically, how practices of everyday life sustain the rule of law. The practice of holding shoveled-out parking spots on snow covered streets is not a recent invention in northern American cities, neither is it universal, nor without contest. It is, however, widespread, a subject of regular and increasing discussion in public forums, newspapers and internet media. It has been subject to legal regulation, although uneven law enforcement, and a topic of scholarly analysis. This essay uses the example of the chair in the shoveled out parking spot to illustrate how cultural analysis can document both the practices and systematicity of legal culture(s), in this way hoping to unravel some of the confusion characterizing discussions of legal culture as well as culture more generally. Following a more extended introduction, the section following both describes and interprets the practice of space-saving on snowy public streets, using the actors’ own accounts to construct an interpretation of what placing chairs in parking spots on snowy streets means to the participants. I follow this descriptive and interpretive work with a short discussion of what such cultural analysis brings to legal inquiry.

And yes, my Pittsblog post makes a (brief) appearance.

Given the man’s notoriety over the last couple of days, you might think that I plan to get the students talking about what Cee Lo did in Times Square last Saturday night, covering John Lennon’s Imagine, changing a key line of the lyrics (from “no religion too” to “all religions true”), and setting off a howling firestorm online about whether Cee Lo dishonored Lennon’s memory or his message.  The copyright angle, of course, is this:  When Cee Lo and the relevant producers cleared the rights to the song, did they clear the rights to the change?  Did the contract even talk about changes (or no changes) to the lyrics?  It’s hard to imagine that Yoko would have said that the change is OK, if she’d been asked in advance.  So let’s assume that she didn’t agree …  that Cee Lo changed things on the fly … etc. etc.

That’s interesting, but it’s hardly worth a class session.  (For the record, I think that what Cee Lo did with the song was senseless (as in, it made no sense), but assuming that the rights were cleared, then the song was Cee Lo’s to sing, and he sang it.  No one thinks that Cee Lo made Lennon look bad, and no harm was done to Lennon’s memory or to  Lennon’s song itself.  If anything, the whole controversy revived interest in the original Imagine, which reads and sounds more marvelous than ever.)

No, the Cee Lo discussion for my class will have to do with the Muppets.  If you haven’t seen the recent Jason Segel/Muppets movie (and I recommend that you do!), you may not have seen this entertaining cover version of Cee Lo’s Fuck You:

And if you’ve been in a cave for the last many months and haven’t heard the original (or the Gwyneth Paltrow version from Glee), here it is:

(That’s the PG-rated, safe-for-radio-and-broadcast TV version.)

The question for the students will be this.  Let’s assume, as surely is the case, that Jason Segel and the other producers of the Muppets cleared the rights to Fuck You.

Why did they do that?  I don’t want to suggest that it was a bad idea to clear the rights, and I don’t want to spend much if any time on the hypothetical “if Cee Lo sued the Muppets, would/should Cee Lo win?”  I  want to surface the dozen or so reasons that went into the actual bargain — many of which have less rather than more to do with classic justifications for copyright law.  My semester in Copyright Law spends a lot of time talking about the institutional setting of copyright law, so that the students can see just what copyright is doing out there in the real world, and equally important, just what copyright lawyers actually do out there in the real world.  There are lots of ways to do that, and Cee Lo isn’t the only thing (or person) that I plan to talk about from the get-go.  But why not get started with that on day one?

Some links and comments, below the fold.

As I often am when I read pieces like this, I was struck by its juxtaposition with other pieces in the same paper. In this case, take a look at the Corner Office column, which interviewed Geoffrey Canada of the Harlem Children’s Zone. The Corner Office is often one of my favorite parts of the Sunday Times. From a micro perspective, Geoffrey Canada hits the nail on the head when it comes to why organizational change is so difficult.

Of course, organizations and institutions that don’t change voluntarily may have change thrust upon them. When it comes to law schools and professional education, we’ve talked here at madisonian.net about both voluntary and involuntary change to legal education. Readers may want to look at, or just recall, these posts:

Deven Desai organized this extensive mobblog on legal education, way back in 2008. Many of the themes that Segal sounds in the Times today were sounded back then, by one or more of the great roster of mobblog participants.

I have from time to time characterized the challenges facing legal education as innovation challenges, explicitly evoking the complacency of a somewhat similarly dominant incumbent American institution: the steel industry. See the posts here, and again here. The American steel industry, premised on integrated mills, was in slow decline for decades — and both internal and external scholars of industrial history knew that, for many years — yet up through the late 1970s and early 1980s management and labor unions collaborated on a series of collective bargaining agreements that perpetuated some of the highest wages in American industry. The workers, their families, and their communities enjoyed extraordinarily high standards of living up through the early 1980s. Then the industry went over a cliff. The bulk of global steel production exited the United States. American steel-making communities have just started to come back, 30 years later (in Pittsburgh’s case), or, in many cases, are permanently scarred.  But the human cost — hundreds of thousands of lost jobs, family dislocation, community collapse — has been staggering.

Clay Christensen used that history as one of the central illustrations of his original, Schumpeterian Innovator’s Dilemma. Christensen directed attention to the challenges of disruptive technology and to the claim that managers in successful industries needed to find structural ways to accommodate disruption, lest disruption wreak catastrophe on their businesses.   In the case of steel, that disruption was the mini-mill.   For law schools, the accreditation structures that Segal describes in his piece have largely suppressed the emergence of the kind of disruptive technology that would feed an innovator’s dilemma for law schools.  But as Segal observes, the cliff may be approaching nonetheless: demand for legal education, at the high cost levels now seen across most of the business, may not be sustainable.  A similar history can be pulled out of the steel analogy.  Economic historians argue that in some respects, at least, Christensen is wrong; demand for the high-priced products of integrated mills had been falling steadily since the beginning of the 20th century.  Steel’s collapse could have been avoided had management and labor collaborated well before the emergence of mini-mills in building a more flexible industrial structure that supported cheaper cost structures.  Is similar flexibility available to legal educators?  Is it desirable?

Quite a while back, I wrote a post noting with interest the development of a new MBA curriculum at Yale.  Business schools aren’t constrained by accreditation requirements akin to those that dictate much of law and medical education, so Yale was free to choose a non-Harvard, non-Stanford path, which it has done. ( I have the general sense that the faculty and students at Yale are happy with the change, and that the model has been adopted at some other schools.)  What impressed me in part was the sense of curricular integration, and relationship to real-world behavior by managers, that informs the Yale model.   Yale did not simply make itself “glitzier” or “pricier” or “cheaper” or “faster.”  (Of course, I may be taken by Yale’s marketing of the thing.  Folks in business education might tell me that Yale’s approach is more rather than less similar to peer programs.)  What impressed me more than anything else was the speed with which the faculty adopted the new program, a speed that was informed by the school’s sense of competitive need.  Yale isn’t a top-tier business school and very badly wants to be.  To attract the best students and the best faculty, Yale decided that a strategy of product differentiation was in order.  And lo, though not without controversy – the dean who led the process left shortly afterward, and now runs some provocative management training at Apple – the school pivoted, and it pivoted remarkably quickly.

David Segal’s piece highlights pivots being undertaken by at least one new law school, pivots, like Yale’s prompted by a sense of competitive need.  But the pivot in question and elsewhere seems largely to consist of  “make legal education the same, but much cheaper.” It’s the Harvard curricular model — appellate cases, casebooks, classes organized by Langdellian disciplines — on a  shoestring budget.  Perhaps in his next piece, Segal will look at that curricular model itself, not in order to critique the Socratic method straw man, but to explore how the conceptual structure of legal education, inherited from Harvard more than a century ago, not only remains essentially unchanged (despite supplementing it with law clinics and “skills” instruction) but contributes to — even justifies — the cost structure that places like the Duncan School of Law perpetuate, even while they resist it.  And then Segal can borrow some of those Corner Office lessons, to illustrate why and how law faculties rarely, if ever, feel the need for competitive speed.

With apologies (for that last line) to fans and critics of Top Gun.

madisonian.net and the IP conferences blog survive.

With all of my new spare time, I’m directing some of my excess social media capacity to Twitter, 140 characters at a time.  You can find me (and all madisonian.net posts) at @profmadison.  That channel will also carry some things that would otherwise go to Pittsblog (Pittsburgh arts, tech, entrepreneurship, the alleged Pittsburgh “renaissance” or post-industrial recovery) and some things that, in my previously divided social media life, I couldn’t or didn’t want to post.

Other madisonians preceded me into the Twitterverse:

Frank Pasquale is @FrankPasquale

Greg Lastowka is @greglas

Ann Bartow is @profabartow

Rob Heverly is @robheverly

Former madisonian Randy Picker is @randypicker