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.
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.
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.
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.
There’s an emotionally compelling comic going around now that shows some of the hardships artist Russ Heath faced in the decades after Roy Lichtenstein appropriated one of his panels in a now famous painting. Per the comic, Lichtenstein sold the painting for four million dollars. (I’m not sure where that figure comes from, as another source says he sold it in 1966 for under £4,000.)
Some of the people sharing this comic—like BoingBoing, for example—describe Lichtenstein’s appropriation as “theft.” The short comic doesn’t use that word, but there’s an implication that there’s some kind of injustice here: Lichtenstein got paid and Heath did not, and the comic suggests that’s a problem.
But if something was stolen from Heath, what was it? What is it that Heath doesn’t have, that he would have if Lichtenstein had never appropriated the panel?
There’s a labor story here: talented and hard-working artists from the golden era of comic books were poorly compensated, and frequently taken advantage of. There’s a social welfare story here: independent of Heath’s stature as an artist, it’s shameful that 80-year-olds can’t afford groceries or medical bills.
But I don’t think there’s really a copyright story. Worse, I think the implication that Lichtenstein “owed” Heath something for his success ignores two truths about what copyright isn’t.
Contributing value doesn’t give you a right to control or capitalize on it. Lessig describes the mistake in Free Culture, and attributes the “if-value-then-right” formulation to Rochelle Dreyfuss: if some creative work is valuable, then somebody has a right to control that value. Of course, much of the value of creative works is non-excludable anyway, but that’s a feature, not a bug.
Copyright is not a lottery ticket: copyright policy shouldn’t be geared towards capturing as much as possible of the money exchanged on extremely rare runaway successes. That’s the same mentality that makes a man standing near a monkey taking a selfie feel like he ought to make a living off that photo for life.
I’m quite glad that the Hero Initiative is stepping in to support comics professionals who need it. I don’t think an artist’s healthcare options should depend on how commercially successful their work—or licensed derivatives of it—continue to be.
As with the songwriter who sued Alicia Keyes for infringement two years ago, I feel genuinely bad for the older artist who has fallen on hard times. But in both cases, the solution is not to try to expand copyright to cover them. Given what the Hero Initiative says about comic artists, and the fact that musicians, too, are uninsured at twice the rate of the general population, there’s definitely a policy that needs to change—but it’s a social one, not economic.
The USPTO has released a log of the FOIA requests it has processed in the fiscal year 2014 in response to a request I submitted early last month.1 Looking through these logs is interesting because you can start to pick out a little narrative for many of the requests, and you can get a sense of the public’s connection with an agency. The USPTO’s log is manageable, too: they only handle about 250-300 FOIA requests per year, and in my experience have been very timely with replies.
The request that took the longest to fulfill was Dennis Crouch’s (of Patently O) for “Nomination documents for Michelle Lee as Deputy Directorof the USPTO; documents discussing whether the Michelle Lee’s nomination process was proper and/or followed the law.” It took 98 days.
At least 8 of the 256 requests were about the Washington football team whose trademark has recently been challenged. They requests variously wanted communications with the public, with Congress, and with the relevant trademark judges.
One Josef Viel requested in March a “list of all the retailers that sell disposable underwear.” In September—six months later—he was back, looking for a “list of manufacturers that produce disposable underwear and retailers that sell them.”
Two requests close to my heart asked for information about a trademark by Banksy and USPTO documents on The Pirate Bay. I’ve reached out to those filers to see if they got anything interesting. (Note: the Banksy request has to do with an interesting trademark situation related to the registration of names or pseudonyms; EverythingTrademarks has a really great write-up of what’s going on.)
