3 circus posters that changed the face of copyright law

The 1903 Supreme Court ruling in Bleistein v. Donaldson Lithographing Co. was a hugely influential for turn-of-the-century copyright. Bleistein was an employee of a company that had designed circus posters for The Great Wallace Shows. Donaldson was a competitor of that company, and agreed to print a subsequent run of those same posters without authorization.

At issue was whether these posters—which were certainly creative, but just as certainly commercial—could be restricted by copyright. By ruling in favor of the plaintiff, the Supreme Court made it clear that the bar for copyright eligibility is not some abstract notion of artistic merit, but simple originality. Commercial speech was just as qualified as fine art. From Justice Oliver Wendell Holmes, Jr’s majority opinion:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.

I’d read about this case many times, but had never seen high quality copies of the three posters at the heart of the matter. After a bit of digging, I found copies in the Library of Congress, which have been scanned at an extremely high resolution. I’ve cropped, cleaned up, and color-corrected the images in this post, but if you’ve got any interest I strongly recommend downloading the huge TIFF files from the LoC. Descriptions of each image by Holmes himself:

Nowadays it seems obvious that these creative and original images would be subject to copyright. It’s a nice reminder that the assumptions of today are likely just as brittle as the ones that affected these colorful posters over a century ago.

 

Making Alice & Bob tees

I wanted a t-shirt in the style of the famous Experimental Jetset Beatles shirt, but with the traditional Alice & Bob placeholder names from crypto discussions. There were a few options for similar things—Bits of Freedom in the Netherlands has one that has Alice and Bob but also intelligence officials, and there are other designs online—but none was quite what I wanted.

Fortunately, it was easy to whip together a pretty convincing looking chunky white Helvetica list of names. From there, I used a company called Teespring, which lets you pick the printing threshold and retail cost. At first I just made the cut I wanted for myself—white text on a black men’s American Apparel shirt—but a bunch of my friends asked for women’s cuts, and it’s very clear to me in retrospect I should’ve made them in the first place.

Both campaigns “tipped” in the first day online, so men’s and women’s t-shirts will be printed in the next few weeks. So far, 40 shirts have been sold—it’s definitely kind of remarkable to think that sprung from my off-hand idea.

I’ve gotten other shirts from Teespring and the quality is high, so I’m looking forward to wearing it. If you want one of these, get it quick!

Musical quote: They Might Be Giants and Darlene Love

For the first time today I noticed that the They Might Be Giants song “Lucky Ball and Chain” off Flood quotes melody and reversed lyrics from a Phil Spector produced Darlene Love song “(Today I Met) The Boy I’m Gonna Marry“. Hear the two segments back to back:

 

I wrote a bit about musical quotes in the context of a lawsuit involving Alicia Keys two years ago. We see it all the time in film (Quentin Tarantino and Wes Anderson make an art of it) but it still feels uncommon in pop music.

Digging up info on the USPTO’s creepy mascot

I filed a FOIA request a few months back to the US Patent and Trademark Office, seeking information about their mascot character, T. Markey, that appears at official events. The character is an anthropomorphized registered trademark circled-R symbol, and is weird and creepy and I wanted to know more. (Incidentally, I can’t find a USPTO confirmation, but I presume T. Markey is named for Howard T. Markey, who was the first chief judge of the Federal Circuit.)

This last week, USPTO delivered the goods, with a little more than a hundred pages of emails and internal documents about the character’s development. Not much scandal afoot, but there are plenty of bizarre shots of T. Markey in various seasonal situations from an internal calendar, and a lot of enthusiasm from various USPTO folks about how good the character looks in a varsity jacket or a baseball glove.

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There are also lots of redactions. Many appear redacting the results of a trademark search for the phrases “Marky” and “Markey,” which are presumably public records. After I tweeted some images from the responsive docs, Techdirt wrote up a post saying the USPTO is acting like a three-letter agency with all these redactions.

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There’s also, as far as I can tell, no information about the costume, which I explicitly requested. That seems like a good reason to appeal, but I haven’t made up my mind yet.

“We will need writers who can remember freedom”: Ursula K Le Guin at the National Book Awards

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Ursula K. Le Guin was honored at the National Book Awards tonight and gave a fantastic speech about the dangers to literature and how they can be stopped. As far as I know it’s not available online yet (update: the video is now online), so I’ve transcribed it from the livestream below. The parts in parentheses were ad-libbed directly to the audience, and the Neil thanked is Neil Gaiman, who presented her with the award.

Thank you Neil, and to the givers of this beautiful reward, my thanks from the heart. My family, my agent, editors, know that my being here is their doing as well as mine, and that the beautiful reward is theirs as much as mine. And I rejoice at accepting it for, and sharing it with, all the writers who were excluded from literature for so long, my fellow authors of fantasy and science fiction—writers of the imagination, who for the last 50 years watched the beautiful rewards go to the so-called realists.

I think hard times are coming when we will be wanting the voices of writers who can see alternatives to how we live now and can see through our fear-stricken society and its obsessive technologies to other ways of being, and even imagine some real grounds for hope. We will need writers who can remember freedom. Poets, visionaries—the realists of a larger reality.

Right now, I think we need writers who know the difference between the production of a market commodity and the practice of an art. Developing written material to suit sales strategies in order to maximize corporate profit and advertising revenue is not quite the same thing as responsible book publishing or authorship. (Thank you, brave applauders.)

Yet I see sales departments given control over editorial; I see my own publishers in a silly panic of ignorance and greed, charging public libraries for an ebook six or seven times more than they charge customers. We just saw a profiteer try to punish a publisher for disobedience and writers threatened by corporate fatwa, and I see a lot of us, the producers who write the books, and make the books, accepting this. Letting commodity profiteers sell us like deodorant, and tell us what to publish and what to write. (Well, I love you too, darling.)

Books, you know, they’re not just commodities. The profit motive often is in conflict with the aims of art. We live in capitalism. Its power seems inescapable. So did the divine right of kings. Any human power can be resisted and changed by human beings. Resistance and change often begin in art, and very often in our art—the art of words.

I have had a long career and a good one. In good company. Now here, at the end of it, I really don’t want to watch American literature get sold down the river. We who live by writing and publishing want—and should demand—our fair share of the proceeds. But the name of our beautiful reward is not profit. Its name is freedom.

Thank you.