Kellogg’s Wrongfully Claims Ownership of All Depictions of Toucans Used in Commerce

There are more than 40 species of toucan in the world, featuring a diversity of sizes, feather patterns, and beak colorations. But the Kellogg Company, maker of children’s breakfast cereal Froot Loops, thinks that it owns the sole right to use toucans in commerce — any kind of toucan, no matter what it looks like. In fact, Kellogg’s believes that they are the only company allowed to even use the brand name “toucan”, or anything that even kind of vaguely sounds like “toucan.”

The Maya Archaeology Initiative's logo

The latest victim of Kellogg’s trademark overreach is the Maya Archaeology Initiative (MAI), a nonprofit that defends and promotes the study of indigenous Maya culture. Kellogg’s is opposing registration of MAI’s logo, claiming that its inclusion of a toucan is an illegal infringement on Kellogg’s Toucan Sam character.

The Maya Archaeology Initiative’s logo features a stylized keel-billed toucan in front of a Mayan pyramid.

In contrast, the Froot Loops mascot, Toucan Sam, is an anthropomorphic blue bird that has no immediately recognizable analog in nature, except possibly some kind of dodo bird/blueberry hybrid. The only toucan species that Toucan Sam bears even a plausible resemblance to is the plate-billed mountain toucan, which is a different genus all together from the more commonly depicted toco toucan or keel-billed toucan. Literally the only thing Toucan Sam has in common with the MAI’s logo is that in both cases the bird depicted is intended to be some kind of toucan.

Toucan Sam

Nevertheless, Kellogg’s has filed a Notice of Opposition to MAI’s registration of its toucan-and-pyramid logo, alleging that

Applicant’s TOUCAN BIRD DESIGN mark so resembles Opposer’s TOUCAN marks as to be likely, when applied to the goods of Opposer, including Opposer’s wide range of licensed goods, including clothing, to cause confusion or mistake or to deceive purchasers resulting in damage and detriment of Opposer and its reputation. In this regard, it should be noted that Opposer’s TOUCAN SAM Marks are frequently displayed in connection with depictions of a jungle theme including Mayan temples and surrounding vegetation. Thus, use of the Mayan pyramid in the Applicant’s TOUCAN BIRD DESIGNS is likely to further strengthen the public’s connection of Applicant’s design with Opposer’s famous TOUCAN equities.

Kellogg’s isn’t just claiming that it owns toucans. It especially owns toucans displayed in Mayan temples and vegetation!

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Bethesda Softworks, IP Troll

Mojang, the Swedish-based game developer behind MineCraft, has a new game coming out. It’s called Scrolls, and as far as I can figure out, it is the computer game hybrid of Magic the Gathering and Settlers of Catan. As described by developer Jacob Porser,

“At the core it’s a collectable card game, but it’s also a board game… It’s combining the two. As you place your units or your buildings, or your siege weapons, you place it on the game board to play against your opponent. It’s not only about designing a proper collection of scrolls [cards], and the tactical aspect of that deck, but it’s also about the tactical sense of how to place your units on the game board.”

Each scroll is essentially the same as an individual Magic card. This makes “Scrolls” a pretty obvious name for the game — and Mojang has already put a fair bit of money and effort into the branding:

“It’s always been Scrolls to me,” adds Carl Manneh, Mojang’s CEO, who joined the company a few months ago. “I think it’s a great name.” It seems pretty amazing that they managed to get the URLs. I ask if they [were] free? Both laugh, and shake their heads. So how did they get them? Carl explains, “It helps when you’ve got some cash.”

So while it’s still a little bit unclear exactly what Scrolls is going to be, it is clear that it is not going to be anything like a quest-based, sandbox RPG. In other words, it will be absolutely nothing like Morrowind or Oblivion or any other game in Bethesda Softworks’ The Elder Scrolls series.

Bethesda Softworks is not one to let such minor details get in the way of a good IP fight, however, and the company is now suing Mojang in Sweden for trademark infringement, over Mojang’s use of the Scrolls mark. According to Notch, Mojang’s owner,

I got a 15 page letter from some Swedish lawyer firm, saying they demand us to stop using the name Scrolls, that they will sue us (and have already paid the fee to the Swedish court), and that they demand a pile of money up front before the legal process has even started.

Currently, there is no lawsuit in the United States. Although Mojang filed a trademark application for Scrolls [PDF] in the U.S. on May 17, 2011, as it usually takes four months for the USPTO to get around to reviewing a trademark filing, a decision on the application won’t be expected until some time next month. Then, if the USPTO has no objections to the Scrolls mark, Bethesda Softworks’ parent company will then have 30 days to file a Notice of Opposition to it, and make its case that there is a likelihood of confusion between the two game titles.

In other words, expect the Bethesda vs. Mojang battle to be opening a second front over here in the States sometime around mid-October.

But do Bethesda’s objections to the Scrolls mark have any merit? While I couldn’t quite label them frivolous, they are unquestionably silly — the risk of consumer confusion here is close to nil, as there is no self-respecting gamer on earth that is going to try to buy Elder Scrolls V: Skyrim and accidentally end up buying Scrolls: The Gathering instead. Nor are they going to see Scrolls and go, “Gee, I wonder if this is the Oblivion card game!” No one even calls The Elder Scolls games “the Elder Scrolls games”; for that matter, hardly anyone seems to know what the “elder scrolls” of the series’ title are even supposed to be.

So in honor of Bethesda Softworks’ attempt to bully Mojang into abandoning the game title by threatening Mojang with rounds of expensive litigation, I have made Bethesda its own scroll. I hope Notch adds it to the game:


Plants vs. Zombies vs. Michael Jackson’s Estate

Plants vs. Zombies, an addictive game that is premised upon just what the title would suggest, features a character called the “Dancing Zombie.” Although fairly obscure in that the face is just a regular zombie-face, the style of dress and dancing of the zombie pretty strongly suggests that the character is intended to be a reference to Michael Jackson. (For the record, the Dancing Zombie pre-dates Jackson’s death, and is a reference to Thriller rather than tasteless commentary on his demise.) Dancing Zombie basically does a zombie waltz to attack your plants, and then spawns four Undead Dancing Minions, back-up zombie dancers from the set of Thriller who join in the fight. The in-game bio of the Dancing Zombie also strongly hints that the connection is deliberate:

Turns out Michael Jackson’s estate got wind of the game, and sent an objection to Popcap disputing their right to feature the Dancing Zombie character. Rather than engage in litigation against a very well-funded foe, Popcap broke down and agreed to replace Dancing Zombie with “Disco Zombie”:

The Estate of Michael Jackson objected to our use of the ‘dancing zombie’ in PLANTS vs. ZOMBIES based on its view that the zombie too closely resembled Michael Jackson. After receiving this objection, PopCap made a business decision to retire the original ‘dancing zombie’ and replace it with a different ‘dancing zombie’ character for future builds of PLANTS vs.ZOMBIES on all platforms. The phase-out and replacement process is underway.

Some quick research failed to turn up what exactly the Michael Jackson Estate’s “objection” was, but presumably it was some variation an alleged violation of Right of Publicity. Right of Publicity is a sort of hybrid version of unfair competition and/or misappropriation, although it is distinct from other forms of IP law, and is administered by the states rather than at the federal level. However, thanks to the First Amendment, the right of publicity has several exceptions, generally thrown under the catch-all category of “newsworthiness.” One of these exceptions is that there is no tort under right of publicity for a depiction of an individual for “entertainment and amusement concerning interesting aspects of an individual’s identity.”

The Dancing Zombie character might seem to fall under this category, but the Newsworthiness Exception also requires a reasonable relationship between the identity of the identical depicted and the subject matter of the story. Although, theoretically, Michael Jackson’s death (and the speculation of his life as a member of the undead…) might be grounds for finding the necessary “reasonable relationship,” it’s clear the Dancing Zombie was simply a Thriller spoof. And although some states, like New York, do not recognize a cause of action for post-mortem right of publicity, many states do, and Plants vs. Zombies has been released nationwide.

Of course, the Michael Jackson Estate’s complaint also raises the question of how to separate the persona of a celebrity from the persona of the characters they play. Plants vs. Zombies can very strongly be construed to be a likeness not of Michael Jackson, but rather of the character he plays in the Thriller music video. Although in Hoffman v. Capital Cities/ABC, Inc. Dustin Hoffman successfully argued a claim for right of publicity based upon a magazine’s alteration of his character Tootsie, that incident actually involved a photographic depiction of Hoffman as the character. In contrast, the Plants vs. Zombies character doesn’t even bear the slightest physical likeness to MJ — but it is an iconic reference to the Thriller character he played.

Long story short, I think Popcap Games could’ve won this case, although it is by no means guaranteed, and it would be a complex question of law that would take quite a bit of time and legal fees to untangle. So it is no surprise that Popcap backed down and Dancing Zombie was axed, but I’m a bit disappointed in the result. This would have been a great test case for the development (or curtailing) of Right of Publicity law, including the issue of how much protection celebrities have against unauthorized depictions not of themselves, but of the personas they have portrayed.


Player Piano Roll Copying is Killing Music (And It’s Maybe Illegal)

The story of copyright law in the United States is, in many ways, one chapter after another about the entertainment industry’s hyperbolic overreaction to the latest developed technology.

Today, the dispute may be about the Kindle’s automatic audio-production of e-texts, or about a 30 second clip of a baby dancing to Prince on YouTube. Before that, the great new threat to the existence of music was Napster. And before that, the movie industry was convinced that the VCR would soon put an end to Hollywood, and it took the Supreme Court to keep home recording legal. And so on and so on.

But perhaps the great granddaddy of all modern day copyright disputes was the development of the player piano:

Yes, that’s right, that dastardly player piano, with its automated paper piano rolls that could play songs without musicians. The fear was so great that lots of lobbying was done of Congress, leading to the 1909 Copyright Act, which brought about compulsory licensing on mechanical rights. Of course, within about a decade, the infatuation with the player piano was gone, but compulsory mechanical rights were stuck in US law and no one ever thought to question if they were really needed.

The copying of player piano rolls may not cause the entertainment industry to sic its litigation team on you today, but copyright laws are impeding the preservation of musical history. Even songs that were in the public domain in Shakespeare’s time cannot today be copied from a player piano roll, because the copyright in the roll itself still exists. Here’s what one would-be infringer was told when he contacted a company that makes player piano rolls to ask about putting recordings on the internet:

A very nice and patient man answered the phone, and I explained what I wanted to do. I explained that I would be sure to use a song that was an ancient melodie which had to be out of copyright by now, and I only wanted to do a few songs, perhaps “Greensleeves” and some ragtime melody that used a mechanism in my player piano called the “mandolin”. The nice man replied that Greensleeves was indeed out of copyright, but that the artist’s rendition of my Greensleeves roll might not be out of copyright. I began to feel the hackles on the back of my neck stand up.

The nice man continued by saying that the rendition of Greensleeves had been put onto a roll of paper, and that too included a copyright, so other player piano roll manufacturers would not just buy one roll, copy it, and sell it to other player piano owners.

The only thing shocking about this story is the fact there is still a company out there that manufactures player piano rolls.


Sad Keanu is Sad Because of Splash News’s Copyright Abuses

As internet memes go, Sad Keanu has been a relatively successful one. It surged onto the scene scarcely a month ago, on June 3rd, 2010, when the original poster put up the image with a caption that read: “I really enjoy acting… Because when I act, I’m not longer me.” Thanks to the mysterious forces that run the internet, the photo became destined for memedom, and rapidly gained in popularity, spawning websites, a charity called “Cheer Up Keanu,” and hundreds upon hundreds of photoshopped Sad Keanu images.

Unfortunately, two weeks later, the holder of the copyright on the photo, Splash News, decided that it had the right to put an end to the meme. They sent out a cease & desist letter to some of the meme’s promoters, and insisted that all Sad Keanu pictures be taken down. (Yeah, good luck with that, Splash.)

Hey Everyone,

Splash News has decided to keep their DMCA in place, as well as Tumblr, which means we may not publish any more of your awesome submissions and we must start to take down all of our previous 270+ posts. In addition, this blog will most likely be deleted in the next 48 hours by Tumblr because of the DMCA.

Although we do believe that it can fall under “fair use”, both myself and my partner don’t have any time or resources to fight it.

Thanks to everyone that helped out making this meme the most awesome one on the internet.


Because of the baseless takedown notice, was forced to take down all its Sad Keanu images, except for Sad Keanu images that have been so altered from the original image that the original photo is no longer present in a photorealistic state. (Legally, this is somewhat pointless; just because you use a Matrix-filter on the photo does not automatically make the photo un-infringing. But it seems to have satisfied Splash News, at any rate.)

The attempt to end the Sad Keanu meme through the use of a Digital Millennium Copyright Act takedown notice is wrong both from a legal perspective and from a normative one. Legally, the Sad Keanu meme is almost certainly not an unlawful infringement, as the meme is itself a parody of an unintentionally hilarious image, and, for that and various other reasons, is within the fair use exception. However, as the owners recognize, trying to fight off a baseless cease and desist letter is often far more daunting of a task than a party can feasibly attempt, and even if (when) the receive of the notice wins the case, their actual costs are still far greater than they would have been had they simply complied. So the owners of decided, as most people in this situations do, to comply with the extortion.

So even though the copyright holder has no valid legal right to order the take down of Sad Keanu, given Splash’s greater sophistication and resources, in actual practice, it is able to exercise a power over the copyrighted image that is massively broader in scope than is the actual legal right that they possess under copyright law.

Ignoring the strict merits of their case, however, Splash’s attempts to control the behavior of millions of people around the world, by preventing them from making or seeing Sad Keanus, is a perversion of copyright law. Sadly, copyright in the internet era is far too often used to stifle creativity, and to prevent the growth of user-created content. Allowing Splash Media to exercise their copyright power to end Sad Keanu does not serve a single policy interest of the United States, or the Copyright Act. None of the benefits provided by IP rights is served by this. Clearly, the total national production of paparazzi images will not be adversely affected if they are denied the ability to eliminate memes based on their photographs.

Moreover, absent the creation and perpetuation of the Sad Keanu meme, Splash News would have either no means or else very limited means of profiting from this image, once its initial run in the gossip magazines is complete. The Sad Keanu meme is not attempting to wrongfully exploit a value created by the copyright owner — rather, the Sad Keanu photo’s only source of value is the meme’s existence. In other words, if the “infringement” of the photo didn’t exist, the photo would be worthless. And if the “infringers” of the photo had been forced to pay for their use of the photo from the beginning, the meme would simply have never come to exist in the first place; people probably would’ve just gone and made some more lolcats instead.

But because the photo is now arguably famous — 99% of the credit for which can be given to the meme promoters and participants, and, at most, 1% to the copyright holder — the photo does conceivably hold some “value”, or at least it suggests there is a market for it out there, somewhere. How exactly to convert that value into a monetary return is a task to be addressed by the creative business savvy of the copyright owner — but one way that is guaranteed to not result in any profits for the owner is in sending draconian cease-and-desists to the very people who gave your product value in the first place.

This actually goes back the “fair use” factors under the Copyright Act, the last of which is the “effect of the use upon the potential market for or value of the copyrighted work.” In this case, the use of the Sad Keanu image to promote the meme actually created the potential market for the image and is responsible for the picture having a non-zero value. The takedown notice was little more than blackmail, and I hope that those who wish to parody the Sad Keanu image continue to do so, regardless of any litigation threats made my Splash Media.


p.s. Note to Splash News: if you want to sue me for use of the Sad Keanu image above, please go ahead. I think it’d be fun

Ursula K. Le Guin and the Tragedy of the Copyright Commons

Via TechDirt, Ursula K. Le Guin has resigned from the Authors Guild in protest of their decision to no longer categorically oppose settlement with Google. The Authors Guild was an original plaintiff in the massive class action suit against Google’s book scanning project, and is now negotiating a controversial settlement agreement.

I was sad to see her take such a stance. I was never a die-hard Le Guin fan, but I have very fond memories of checking Wizard of Earthsea out for the first time from my middle school library. Her science fiction is great too, and she is undoubtedly an icon of the genre; I love the fact that, forty years after she invented the ansible, other authors still use the devices in their books, even borrowing the same technological constraints that Le Guin used, as if ansibles were somehow a common heritage of all scifi universes.

That always struck me as a small but delightful example of the benefits provided by a robust intellectual commons — that there can be such spontaneous collaborations between authors, many years apart, and that we can create these common cultural reference points. After all, Sherlock Holmes’ popularity today is not due to the fact that Sir Arthur Conan Doyle was the only one person who ever got to say what happened to him.

But some authors — or their heirs — try to claim that no morsel of their work rightfully belongs to the commons, and that their ideas should die with them. Recently, Philip K. Dick’s daughter threatened to sue Google for naming their phone Nexus One, in a subtle reference to the Nexus-6 replicants, which were a sixth generation model of androids in Do Androids Dream of Electric Sheep. I find it indescribably sad that someone should try to claim a copyright to geek cultural heritage.

As the creator of the ansible, Ursula K. Le Guin could, under her view copyright, prohibit other authors from using ansibles in their works, or else sue those authors who do reference them. I do not think anyone could argue that the world would be better off if authors could exercise such a monopoly over their ideas. But what Le Guin advocates would permit authors to do so.

In her resignation from the Authors Guild, she wrote:

You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.

What “principles” are involved, in Le Guin’s view? The principle that authors are entitled to recoup all the welfare benefits from their work, into perpetuity? Because that principle has never been listed under the heading of “concept of copyright.” (You might be able to find it under “shameless rent-seeking,” though.)

The Authors Guild’s reply to Le Guin’s resignation has a quote that should be underlined, over and over again:

The lessons of recent history are clear: when digital and online technologies meet traditional media, traditional media generally wind up gutted. Constructive engagement — in this case turning Google’s infringement to our advantage — is sometimes the only realistic solution.

Admittedly, for most industries, it seems that “constructive engagement” has meant lobbying the legislature (or in the Google Books case, the judiciary) for restrictive laws that give creators ridiculous rights that copyright was never intended to protect. Even still, engaging in the opportunities that change provides is always a better response than claiming an entitlement to continue living in The World As It Used To Be.

I do have some pretty huge objections to the Google settlement (who doesn’t?), but they are the same objections the DOJ has, i.e., “class action, copyright and antitrust law[.]” (Okay fine, my personal objections include just those last two. Although if I had any modicum interest in class action suits, I’m sure I’d be very concerned about that first one as well.)

Le Guin’s objections to the Google settlement, however, are not about the creation of an unjustified monopoly power, but rather that she is not going to be the beneficiary of one.


Footnote of the Day: The Apple <3 Sagan Edition

72 See Sagan v. Apple Computer, Inc., 874 F. Supp. 1072 (C.D. Cal. 1994) (Apple had given a development project the internal name “Carl Sagan,” but when this fact was publicized Sagan demanded his name not be used. Apple technicians changed the project’s code name to “Butt-Head Astronomer.”)

Edit: After Carl Sagan sued Apple for the “Butt-Head Astronomer” name (a suit Apple eventually won on First Amendment grounds), Apple’s lawyers made the programmers change the codename. They grudgingly did so, re-naming the project LAW — short for “Lawyers Are Wimps.”


American States Purposefully Claim Copyright In Their Own Laws, Demand That Citizens Pay If They Want To See Them

I realized that my last post may have been overly unfair to Liberia, and may have implied that an entity claiming copyright in a state’s legislation was an unusual occurrence.

It’s not. Numerous sub-Federal government bodies in the U.S. (and Canada) have attempted to do exactly the same. (Feds are prohibited from claiming any copyright under Sec. 105 of the Copyright Act.) California, for instance, claimed copyright in its “building codes, plumbing standards and criminal laws”, and charged users to obtain copies of the statutes and regulations they are already presumed under the law to have knowledge of. And it’s pretty clear why states do it: there’s money to be made.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Oregon also tried the same copyright-in-the-compilation trick that Banks is doing in Liberia:

The State of Oregon takes exception to Web sites that republish the state’s Revised Statutes in full, claiming that the statutes contain copyrighted information in the republication causes the state to lose money it needs to continue putting out the official version of the statutes. Oregon’s Legislative Counsel, Dexter Johnson, has therefore requested that legal information site Justia remove the information or (preferably) take out a paid license from the state. …

While the text of the law is not copyrighted, the “arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents” are under copyright.

Luckily, the judiciary has, so far, not looked on to such claims too kindly. Recently, California got its rear end handed to them over its attempt to claim copyright in public maps.

A California county’s three-year battle to prevent a nonprofit group from obtaining public mapping data has ended disastrously for the county after it was ordered by a court to pay the group $500,000 in legal costs.

Last February, Santa Clara County, the heart of California’s Silicon Valley, was ordered to hand over the public records to the California First Amendment Coalition for a minimal duplication fee after initially trying to charge $250,000 for the data and then appealing to the federal government to designate the data a national security secret that couldn’t be released. This week the county paid out to the coalition twice the amount in legal fees that it had once hoped to rake in as profit for the data.

With the release of the exciting (if kinda unwieldy) addition to Google Scholar that allows you to search full federal and state court opinions as well as law journals, ever more “public information” is being made, for the first time, actually available to the public. Meanwhile, I’ll be cheering on the development of Law.Gov. Sorry, Wexis — I loved the freebies you gave me in law school, but it’s time for you to take a less prominent position in the U.S. legal system:

Law.Gov is a movement that is determined to work to raise the quality of government information. They are determined to establish standards for state and local courts, legislatures and agencies to follow in the production and distribution of their own legal materials.

If Law.Gov succeeds in its mission, it will mean that governments and courts will produce better information, in formats that are reliable, accurate and distributed freely to all who need it. And all who need it include both private citizens and providers of VHPPLM [Very Highly Priced Primary Legal Material]. As such, this is good for news for providers of VHPPLM, as well as ordinary consumers of primary legal materials.


Liberia Accidentally Privatizes the Law, Owner Demands that the Government Pay for the Copyright if it Wants it Back

The Republic of Liberia’s laws have been, quite literally, lost. Due to civil war, the actual content of the country’s legislation were scattered and misplaced, and not even the Legislature has a complete collection of the law.

The chairman of the Liberian law reform commission has, however, finally assembled all of Liberia’s laws into one compilation — and he is claiming an exclusive copyright in the compilation. And he’s refusing to hand over the law until someone coughs up a sufficiently high enough sum:

[Philip] Banks sees the copyright as an altogether different tool. “These are resources that you’ve had to expend in putting all of this together, and the question is, should you be compensated? I hold the view that you should,” he asserted in his interview with FP. “And for folks that have said, no you shouldn’t, I’ve said to them, go and get your loose-leaf.”

I’m not sure why this situation is being treated as so self-evidently ridiculous. Not that I agree with his claims in the slightest, but it’s not any more absurd than a lot of the parodies of copyright claims that happen in the U.S. And to be fair to Banks, the compilation (which was begun by a U.S. professor) likely would not exist in its completed form if not for his efforts. Is there a meaningful difference between what Banks is doing and between municipal governments in the U.S. claiming a copyright in their train schedules?

However, in contrast to when such situations occur in the U.S., the FP article, and most the other commentary up, is perfectly willing to describe what Banks is doing as “taking the law hostage” and “ridiculous,” and no commentators seem inclined to accept that he has any moral rights to the data. (Whether or not he has a legal claim to the data is, for obvious reasons, rather a more difficult question.)

One thing the Foreign Policy article does not make clear (possibly because there’s no way to do so) is whether anyone in Liberia is making a distinction between copyright in the laws themselves and a copyright in the collection of the laws. Presumably, Banks can only claim the second. According to the article, “The U.S. Agency for International Development estimates that $13 million is poured into rule-of-law assistance programs in Liberia each year.” Maybe instead of pumping in millions, US AID should just go buy a copy of the laws from Banks, rearrange the compilation order, maybe add in some independent research for good measure, and then start releasing its own collection of Liberian laws under some kind of Liberian Creative Commons arrangement. It would be a cheaper way of drastically improving the rule of law in Liberia.

Or, on the other hand, why hasn’t the Liberian government just gone ahead and passed a law that clarifies that “Copyright protections are not available in any form of legislative document or compilation thereof”? Liberia’s constitution, modeled after the U.S.’s, does have prohibitions on bills of attainder and ex post facto laws, but if those clauses apply in a similar fashion to the U.S. counterparts, they would not actually prohibit the Liberian government from declaring that its copyright statutes do not apply to Liberian laws themselves. However, according to the FP article,

President Johnson Sirleaf said in an Oct. 12 interview that she is willing to entertain compensation for “whatever they may have spent out of their own resources,” but insists, “Rightfully, those copyrights belong to the government.” She hopes to have the situation sorted “within a year.”

So apparently the Liberian government is, myopically, trying to claim that they have a copyright in the laws. Which is ridiculous of them, and undermines their own cause. If the government can have a copyright in legislation, there is no principled reason (assuming Liberian law recognizes copyrights in compilations) why Banks should not be able to copyright his laboriously collected volumes of them.

In which case, I suppose, why not just go ahead and invoke constitutional prohibitions against Banks? That could be the Liberian government’s handiest solution. Under Article 15(c) of the 1984 Liberian Constitution, “there shall be no limitation on the public right to be informed about the government and its functionaries.” Allowing the Minister of Justice to keep the country’s laws secret sounds like a limitation to me.

So I’m assuming there’s something either more corrupt or more complicated going on here than the FP article suggests. Otherwise, it just doesn’t make much sense.


Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the following paragraph from the Notice, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indications, PZ is not nearly so dense as to be oblivious to the irony of quoting another poet, in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession — and many of the copyrights that PZ is trying to protect are themselves volumes of poetry criticism. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright, and contrary to his own father’s feelings on poetry.

Instead, PZ’s Copyright Notice is itself a form of literary criticism, a piece of scholarship about the Zukofskys’ works — albeit one that is, unfortunately, backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, and to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.


p.s. If you want to at least listen to P. Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”