i-DEPOT: A “Good First Step in Innovation”?

Perhaps I find this fascinating because I have heard from so many entrepreneurs about how the options presented to them by the current intellectual property legal system fail to meet their needs.  Or because of my research on copyright fixation.  Or because I’m fairly convinced I was a magpie in a prior life.  But through the diligence of a research assistant (thanks, Benton Patterson), I recently came across i-DEPOT, and I find it very interesting.

i-DEPOT is a sort of safe deposit box for ideas, offered in Benelux through the Benelux Office of Intellectual Property (BOIP).  The website is very careful to say, repeatedly, that i-DEPOT does not convey any IP rights.  Rather, it claims that i-DEPOT is a “legal means of proof that issues a date stamp,” providing that a particular individual is “the rightful owner of a particular creation at a specific date.”  It does not offer legal protection at all, except in so far as it serves as a source of evidence.  After a creator or inventor submits something to i-DEPOT, the individual receives a certificate with an assigned number.  (Here I am tempted to analogize to the Universitatis Commitiatum E Pluribus Unum, but that might be unfair.)

The website of the BOIP recommends that i-DEPOT be used while an idea is in the development stage, or if an individual wants to keep her idea secret.  Maybe the patent costs are too great, or the life-cycle of the product is so short that a patent would be worthless.  It can also be used for IP rights that do not require formal registration, such as copyright (does this serve as a sort of official validation of the “poor man’s copyright”?).  Finally, the BOIP suggests that i-DEPOT enables creators and inventors to feel more secure in negotiations with potential business partners by including the i-DEPOT number in a confidentiality agreement.

The BOIP frames this as a good first step in the innovation process.  I’m interested to hear from others on this.  What are your thoughts?  Does anyone know about anything similar in other countries?  Or about how widely used this is in Benelux?

Art and(or) Outdoor Advertising in Marfa, Texas

“What is art?” is most often an academic question, debated best either late at night over a glass of wine, or at scholarly conferences.  In the west Texas town of Marfa, however, it has a very practical impact.

Public art is an integral part of Marfa.  NPR has called Marfa “nothing less than an arts world station of the cross” and a “blue chip arts destination.” Marfa’s place as an art destination can be traced back to the 1970s, when minimalist artist Donald Judd grew tired of the small, confining gallery spaces of New York City and bought 16 decaying buildings, a decommissioned army base, and three ranches near Marfa.  He moved there, and filled it with art.  Since then, many artists have come to the region and set up shop in and around the town.  (Sculptor Campbell Bosworth said, “You just come out here and you feel like, I want to make something; I want to do something!”)  Many works are integrated into the unique west Texas landscape.  Imbued in the area is a sense of independence and alternative living. The bookstore, the pizza shop, and the coffee shop are all independently owned.  One of the best known installations is “Prada Marfa”, which is a replica of a Prada boutique created by artists Michael Elmgreen and Ingar Dragset, replete with luxury shoes and handbags set a few miles outside of town.  Perhaps the structure is a commentary on the prevalence of luxury brands or an exercise in context; whatever it is, however, one cannot escape the irony of a fake Prada store in the middle of the desolate landscape.

Recently, Playboy Enterprises built (or “commissioned,” depending on your perspective) what it claims is also an art installation near the entrance to the town — a 40 foot Playboy bunny on a pole along with a black spray-painted Chevy, called “Playboy Marfa.”  Playboy worked in conjunction with artist Richard Phillips to produce the piece.  Residents of the town have been upset by what they see as a corporate advertisement and an unwelcome intrusion into the landscape.

According to the Texas Department of Transportation, if the structure is art, it can stay — but if it is a roadside advertisement, it has to go.  Playboy does not have a permit for a roadside advertisement, and the location of the sign doesn’t qualify for a permit.  TxDoT regulations define an “Outdoor advertising sign” as “an outdoor sign, display, light, device, figure, painting, message, plaque, placard, poster, billboard, logo or symbol, or other thing which is designed, intended, or used to advertise or inform, if any part of the advertising or information contents is visible from the main-traveled way of a regulated highway.”

The issue is, thus, whether Playboy Marfa is “designed, intended, or used to advertise or inform.”  Art can inform, and perhaps art can advertise, but to the extent it does so within sight of a regulated highway, the Texas Department of Transportation can have it removed.  (This kind of makes me want to go spray-paint “MADISONIAN.NET” on Cadillac Ranch.  Just a little.)

Over the summer, the Texas Department of Transportation decided that Playboy Marfa was an Outdoor Advertisement, and ordered the landowner to remove it within 45 days, a period of time that has recently expired.  Playboy refused to remove the piece and issued its own statement, stating that the company does not believe that “the art installation by Richard Phillips violates any laws, rules, or regulations.”  The piece is still up, and the parties are reportedly in negotiations.

More Solutions Outside the Courtroom… Paul Frank and the Pow Wow

After being criticized for cultural insensitivity to American Indians, clothing and accessories giant Paul Frank Industries has found a way to support the Native American community.  Last September, Paul Frank hosted a “Dreamcatchin’ Party” and “pow wow” for Fashion Night Out. The event featured its famous monkey mascot in a feather headdress, as well as guests wearing war paint and tomahawks, and drinks with names like “Rain Dance Refresher” and “Neon TeePee.”  (The invitation and an associated story can be seen on Jezebel here.)  The event was soundly criticized in social media by Native American groups, which believed that the cultural appropriation was insensitive, inappropriate, and racist.

Paul Frank Industries reached out to individual critics and decided to take action to showcase Native designs, but “to do it right.”  The company selected four Native American designers from various tribes who had unique artistic styles to produce a line of products ranging from eyewear and jewelry to tote bags and t-shirts.  (An interview with Elie Dekel, president of Saban Brands, the parent company of Paul Frank, can be found on NPR here.)  The line of clothing and accessories will be released this week.  The company wanted to release the line this week in particular because it is the time of the Indian Market in Santa Fe, New Mexico, which is one of the largest gatherings of Native American artists in the country.  Dekel stated that “working with the [Native American] community in an endemic and sincere and authentic fashion has been an incredibly refreshing experience” and one that we hope will be looked at by others in the fashion design and licensing industries as a template.”

(In full disclosure, I consulted with the estate of Crazy Horse for several years on intellectual property issues and worked with them to approach their concerns outside of the courtroom by seeking extra-legal solutions such as these to some of their concerns.)

The Team Who Will Not Be Named: The Redskins and Slate

This week, Slate announced that it would stop referring to the NFL team from Washington, DC, as the Redskins.  With this decision, Slate joins Washington’s City Paper, as well as the Buffalo News and the Philadelphia Daily News, in their refusal to use the Redskins moniker.

Litigation over the Redskins trademark has been protracted and convoluted.  Substantively speaking, the litigation has focused on disparagement, which allows a trademark registration to be cancelled if it is disparaging to a substantial composite of a referenced group.  Pro Football, Inc. v. Harjo was, however, decided on laches, which is a particular vulnerability for plaintiffs claiming disparagement.  (In this particular case, it  has also resulted in an odd situation whereby a new case has been filed in the TTAB over the same issue but with younger plaintiffs.)

The standard for disparagement is less than clear.  Many TTAB decisions and court opinions have found that a mark just is disparaging with little supporting analysis.  What is enough to be “substantial”, and what the parameters of a “referenced group” are, are often problematic (and have both been particularly problematic in the context of the Redskins litigation).  Another problem with the standard is that it requires a mark to be disparaging at the time of registration.  Thus, if a trademark was registered at a time when racism was socially acceptable, it might be more difficult for plaintiffs to petition for cancellation either because members of the group internalize that racism, or because the groups are not empowered enough to bring an action for disparagement in a timely fashion.

Extra-legal solutions, such as the decision by Slate and other media outlets, can be more effective than courts at addressing these issues.  It’s not because of litigation, but because of market forces (including an evolving social and cultural climate), that a trend has developed toward elimination of American Indian school mascots at both collegiate and high school levels. The NCAA has banned conference play for teams with American Indian mascots, resulting in changes to more than a dozen teams.  Other Universities, such as the University of Wisconsin-Madison and Iowa, have refused to schedule non-conference games against teams with American Indian mascots.  Outside the courtroom setting, increased pressure has resulted in a steady decline of use of American Indian references in sports teams across the US.  Whether or not these pressures reach the NFL team from Washington DC, however, remains to be seen.

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

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 facade 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.