Bad Call?

This is a slightly more whimsical (and short) approach to a topic I spilled a great deal of ink on last week.  I saw this bumper sticker on a traffic pole yesterday:

Clearly, a sticker done in homage to:

Is this good?  Bad?  Acceptable?  Infringement?  Legally fine but artistically dubious?  Artistically clever but legally questionable?  An unfair use of Bad Brains’s design to imply support from Bad Brains or their fans?  A strategically bad decision of iconography, considering how different Bad Rabbits and Bad Brains are?  Totally fine and rather cute or amusing?

I’m torn.  All I know for sure is I checked them out because I thought they may be similar to Bad Brains, but they turned out to be entirely different (and I see very little crossover between these fan bases).  I also think I may know some people in Bad Rabbits – at least a few went to Northeastern – so I should be careful before I rip on them too much.

The State of Music Reviewing

The blog Aritsts Paid posted up a video of Rolling Stone and Village Voice music critic Christopher R. Weingarten, speaking at a web/twitter conference in New York this past June.  He argues that crowdsourcing and amateur music blogging has killed popular music:

(Not suitable for work, or for the kiddies.)

With the obvious grain-of-salt caution that this is a Rolling Stone writer complaining about how amateur reviewing has undercut his professional usefulness, Weingarten raises an interesting point. Before the Internet, music reviewers would dish out opinions from up on high.  Their opinions were respected (if not agreed to).  When the Internet first began to spread, music websites kept up this tradition of, as he puts it, separating wheat from the chaff.  But with the advent of the amateur music blog (*ahem*) we switched from parting the waters in music to opening the firehoses.  As Weingarten puts it, it was like a sprinkler, with opinions and MP3s flying everywhere.

On top of this, the one edge “professional” reviewers had for years was the coveted “advance” copy of records: even if consumers didn’t care what people like Weingarten were saying about bands, at least they could scoop us bloggers out here.  Nowadays record labels seem to run their organizations about as watertight as a swiss-cheese submarine, and albums are leaked well in advance of promotional distribution.

At the meat of his speech – around the 7-minute mark – he argues “crowd sourcing killed music” because “people have terrible taste,” and, “if you let people decide what good music is, nothing different or adventurous gets out.”  Weingarten says this trend lead to professional music critics being forced to review bands that are popular instead of bands that are “good,” and a close-minded online listening world (“I only listen to X music and thus I have no idea about Y”).  His solution: spend less time saying online that “I like this music” and start saying why you like different music.  In other words, don’t get so caught up in consensus.  Advocate for the bands you love, and disagree about it.  Practicing what he preaches, his uses his Twitter account to review albums at a breakneck rate, injecting a great deal of “why” into his reviews and keeping pace with the amateur reviewers.

He spends a while complaining that music is “rising to the middle” and popular interest leads to an overabundance of mediocre, mass-appeal bands (citing the current indie rock world as his major case study), which the music world is compelled to review to feed the “click-economy” and get the all-important hits.  While I agree that there are far too many mediocre bands out there, I don’t think that’s the online music world is as dire as he claims.  While Weingarten spends some time talking about the stratification of music consumption (people getting more narrow and closed-minded about listening), he neglects to mention is a duplet characteristic of online music writing: (1) there are a lot of music blogs/twitters/online sources that write about different music online, and (2) many people are diverse in reading blogs.  It doesn’t follow that because music websites are narrow music listeners are too.  Sure, there are blogs like Detailed Twang which focus heavily on a specific genre (to wit, bluesy garage rock and proto-punk), and I read that Detailed Twang for that purpose, but that’s just one music blog in a personal arsenal that I use to keep up with music. Speaking from anecdotal evidence, people tend to diversify their niche sources.

Some people will be closed-minded about music, but that’s no different than listening to Top-40 radio for one’s entire life.  (And I never subscribed to this axiomatic inquiry the because you don’t listen to weird music you are less of a music. I respect objective music fandom above any subjective taste.)  While Weingarten is right about there being a lot of derivative, Pixies-meets-Death-Cab-at-a-party-for-Pinback bands out there, there are also troves of unique and interesting music blogs talking about quality artists.  Save for maybe the late 1960s, I don’t think fringe music fans like us have ever been happy with what’s in the mainstream, be it on radio or in major music blogs.

There’s a certain degree of “physician, heal thyself” sentiment I feel towards Weingarten, but that’s likely misplaced.  I know that he’s not the one that selects which bands to review in Rolling Stone, and I know that precious few places can afford a good music critic (and he is a good critic).  The belt-tightening and corner-cutting of the industry forces most national music magazines to go for quantity of sales over quality of writing.  What we have here is the cost of national distribution.  If Rolling Stone plans to be a magazine with broad appeal, its writers can’t act surprised when they focus on music with broad appeal, “crowdsourced” from the Internet.  While I wholeheartedly share in his dismay of writers being replaced by blogs, there’s an inherent circularity to Weingarten’s central argument about crowdsourcing.  Crowdsourcing by definition seeks information mass of people; the bands that someone finds from such a search will almost by definition mass-appeal.

Critique aside, I do sympathize with Weingarten and other experienced, professional music reviewers.  Were there a place (online or offline) where we congregated and compiled our Lester Bangs protégés I would certainly open my wallet to it.  For now, I suppose the best we can do is promise to each other that we’ll argue viciously over bands and strive not for consensus, but diversity.

A conversation with Beck and Tom Waits

Big thanks to the Anti- Records Blog for posting up a pair of conversations Beck and Tom Waits shared on Beck’s website.  A lot of it is inside jokes about LA, but you get a good discussion on the Oscar Mayer Wienermobile and Wienerwhistles, playing live shows, the lifespans and utility of songs, Japan, and yo-yos.  Check it out.

For more Waits interviewing, check out this amazing AntiBlog post from May of last year (just before the PEHDTSCKJMBA tour).  Quote of the post:

Q: What is a gentleman?

[Tom Waits]:  A man who can play the accordion, but doesn’t.

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:

Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):

Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.

BOYCOTT JAMBA JUICE!

JUICE SUCKS, DRINK WINE

Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.“  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

Twitter Security Breach

Two articles stand out as great reads on the Twitter Security Breach debacle:

• Sam Bayard from the Citizen Media Law Project discusses the constitutional right to publish hacked documents here. The analysis here draws on many of the same cases Sam and I used in an amicus brief sent by CMLP and the Cyberlaw Clinic to the Supreme Court of New Hampshire about a month ago.
• Journalism professor and tech pioneer Dan Gilmor takes Sam’s analysis and adds his own spin, coming right to the point on the merits of how Michael Arrington and TechCrunch are handling the breach.

Sen. Specter’s comments at Sotomayor hearing

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

Thursday morning humor

Care of Dan Piraro’s Bizzaro comic strip and Blondes Not Bombs.

Thrill-arsis

There’s more to write about Michael Jackson – the will and its deep-in-the-music-industry executors, Internet music sales records set and broken this past week care of Jackson, how monoculture will change after his passing – but I’m done.  I think this story has been blogged to death.  I’ll end with the weirdest two stories on this topic: one, care of BoingBoing, that They Saved MJ’s Brain, and two, care of WFMU, on the worst eBay cash-in imaginable.

Brookline’s Roadhouse: a nuisance?

The law of nuisance, governing a use of one’s land which causes harm to another’s land, was best described by the Supreme Court in the 1920s: “a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  This expression – nuisance being “a pig in the parlor” – has somehow stuck and is in every property textbook, but so rarely is the pig in question literal, much less rubbed in spices and slow cooked, served with a side of cornbread and cole slaw.

But so it is in my former town of Brookline, where, as Beeriety reports today, Washington Square’s Roadhouse has been forced to close its meat smoker after neighbors complained that they did not want their home filled with the awful, awful smell of gourmet slow cooked food.  Losing the smoker has caused the Roadhouse to change its menu entirely.  From Wicked Local:

[Roadhouse owner David Ciccolo] said he’s cut all the smoked items from his menu, and planned to debut a new selection of Creole and Mexican-inspired dishes on Wednesday night. The new menu includes shrimp étouffée, jambalaya, gumbo, blackened salmon, gazpacho, and tacos with either catfish, steak or chicken.

“We were forced to make this come together pretty quickly,” Ciccolo said. “Needless to say, we’re all a little bushwhacked.”

I’m sad to see this happen to the Roadhouse.  The place opened right after I left the neighborhood and moved to DC, and I haven’t had a chance to return.  While the new menu sounds great, I can only imagine how good their cooking must have been with the smoker in use.  If they did to BBQ what (Ciccolo-owned) Publick House did to Belgian food and beer, I’m sure we’re all missing out.

I also would add that there’s not a place I’ve lived in the Boston area where my apartment’s odor wouldn’t have been improved by a perpetual, eminating smell of quality BBQ. This includes the two years I spent on Beacon Street near Washington Square.

This is not the first time Ciccolo has had to deal with the town of Brookline.  As Andy Crouch notes in his BeerScribe, the Publick House Provisions store took ages to secure a liquor license so it could sell bottles of the superb craft beers the Publick House has on tap.  He should consider moving to Cambridge: it only took United States Supreme Court intervention to get Grendel’s Den up and running.