Absurdly, Jack Daniel’s, the largest American whiskey manufacturer, sued VIP Products, one of the principle American dog toy manufacturer (Spuds loves their toys) over a parody plastic squeaky toy modeled on Jack Daniel’s bottles. (Spud likes a squeaky toy that looks like a Coor beer bottle). On the dog toy, as you can see, instead of describing “Old No. 7 Tennessee Sour Mash Whiskey” manufactured by “Jack Daniel’s,” the toy is “Bad Spaniel,” “Old No. 2 on your Tennessee carpet.”
Oral argument at the Supreme Court was yesterday. Finding a likelihood that consumers would confuse the “Bad Spaniels” toy with Jack Daniel’s, the trial court ruled in favor of the liquor company and barred VIP from continuing to manufacture the parody toy, ruling, believe it or not, that that consumers would confuse the “Bad Spaniels” toy with Jack Daniel’s whiskey. Yeah, I always have that problem, mixing up dog toys with liquor bottles. The U.S. Court of Appeals for the 9th Circuit reversed on both counts, because the trial court’s theory was…well, let Sidney Wang explain:
It didn’t happen here, but I could easily see it happening here, and…
It’s really, really, really stupid.
A bit of background: Samuel Beckett, the late Irish novelist and playwright of Theater of the Absurd fame ,best known for his minimalist drama and “Waiting For Godot” in particular, was a cantankerous old coot who didn’t trust directors (with good cause, say I), and directed them in his texts to change neither lines nor character, or risk legal action. Edward Albee was similarly strict on this point, having seen what happens to plays in the public domain (like Shakespeare’s works) when far less talented “artists” decide to make them “relevant.” So if you are going to produce a Beckett play, it’s Beckett’s way or the metaphorical highway.
Oisín Moyne, a fellow countryman of Beckett, was directing “Waiting for Godot” in the Netherlands and auditioned only men for the all-male cast of characters, as he was legally and artistically obligated to do. the college production been in rehearsals since November and was due to be presented at the University of Groningen’s Usva student cultural center in March. (Don’t ask me how or why it would take more than three months to rehearse this play, which primarily involves two guys sitting around talking, but never mind.) Continue reading →
Since late last month, April 25 in fact, I have been periodically researching the topic of NFTs or “nonfungible tokens“. The damn things were back in the news yesterday when a digital-only photograph of supermodel Emily Ratajkowski standing in front of a photograph of herself with a smaller, different photograph of herself in the corner sold at auction at Christie’s for $140,000 ($175,000 after fees). Here’s Yahoo!’s description:
“It’s not that the photo can be seen only by the buyer or even that the buyer can physically mount it in a frame (though one supposes the buyer could project it on a wall or screen and put a frame around the projection); it’s that the equivalent of the certificate verifying the authenticity of the digital file of the main photo is unique. It’s really the certificate that cannot be replaced exactly by a copy….NFTs have recently enjoyed a heyday. Nonfungible.com, which tracks such sales, shows massive spikes through the first quarter of 2021 over the last quarter of 2020, with sales volume reportedly in the range of $2 billion already this year.“
Right. I can read that over and over, and it still makes no sense. As far as I can tell, these are like digital tulip bulbs from the Dutch tulip craze crossed with cyber-currency, and people who have so much money they don’t know what to do with it are buying what amounts to metadata as investments. But I may be completely wrong. I eventually gave up on trying to understand NFTs when my sock drawer started looking taking to me.
There is are underlying ethics issues, however. Ratajkowski created her NFT in part to troll Richard Prince, a photographer who has exploited the blurry ethics and copyright laws involving photography to make a lot of money and to infuriate many people, especially celebrities like Ratajkowski. Prince is the master of the digital age of Appropriation Art. When Andy Warhol essentially copied the design of a Campbell’s Tomato Soup can and made millions from it, that was the beginning of the trail of metaphorical bread crumbs that led to Prince. Thousands of photographs are placed online every day and appear all over the web, to be copied and re-used in on Pinterest, Instagram, Facebook and many other cyber-spaces. It is often impossible to track down the original photograph or its source even if one wants to give it attribution or ask permission to use it from the creator—this is something I do know something about, as I deal with it every day. Taking an individual’s image, however, treating it as one’s own and selling it is widely regarded a breach of photography ethics, and arguably a breach of law. “Fine Art,” however, creates a large loophole, and in the loophole dwells the much despised Richard Prince.
“The Great Gatsby‘s” 1925 copyright expired on January 1, 2021, and right on cue, Amazon announced that it was selling a now-legal prequel to that wildly over-praised F. Scott Fitzgerald novel called “Nick,” by Michael Ferris Smith: “A tumultuous origin story of one of the most famous and unforgettable literary narrators, Nick is a true cross-continental bildungsroman. This emotional novel successfully puts “The Great Gatsby” into an entirely new perspective and era: from the battlefields of World War I to the drunken streets of Paris and New Orleans. Dive back into the world of an unparalleled classic.”
It’s not unethical exactly, I guess it’s just pathetic. This author was waiting to scavenge someone else’s original work, and had his rip-off ready the second the bell tolled. The similarly creatively challenged among you now can repurpose and sell as your own books like Virginia Woolf’s “Mrs. Dalloway,” Ernest Hemingway’s “In Our Time,” Franz Kafka’s “The Trial” (in German) Theodore Dreiser’s “An American Tragedy,” John Dos Passos’s “Manhattan Transfer,” and Sinclair Lewis’s “Arrowsmith” (a personal favorite) among others.
1. Nah, the Democrats aren’t turning into totalitarians! That’s going to be the most-used gaslighting reference here in the ordeal to come I fear, as foretold by this screed in the New Yorker (Pointer: Arthur in Maine) by John Cassidy. Its thesis is that there are legislative steps that can be taken to make sure no political outsider like Donald Trump will ever again defeat establishment hacks like Hillary Clinton and Joe Biden.
Among the steps to “Trump-proof” the Presidency: require all candidates to sell off any businesses they own (lifetime politicians don’t own businesses), force them to release their tax returns, try various end-arounds the Electoral College (none of which are constitutional, in my view), and adopt ranked-choice voting so third and fourth party candidates have no chance whatsoever (they do it in New Zealand, so it must be better than our system).
I’d take the time to fisk this thing, but it begins falling apart on its own like Captain Queeg on the witness stand about halfway through, descending into standard anti-Trump blather about “norms,” lies, and “verbal assaults on the media” (which thoroughly deserved them).
The author really exposes his bias when he cites Citizens for Responsibility and Ethics in Washington as his ethics authority, a group that somehow only finds ethics violations in the Republican Party.
1. Hmmmm.“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Recognize those words? Might the news media have the sense and integrity to include them in stories about state governments “ordering” that there be no public gatherings of 500 or more (New York) and 250 or more (Washington state)?
Update:Massachusetts just “banned” gatherings of over 250. I’d like to see the research showing that numbers not ending in zero are unsafe.
As far as I can figure out, a state governor can’t unilaterally restrict the right to assemble even in a “state of emergency,” and whether such a draconian measure is permissible is subject to court challenge and judicial scrutiny. These two orders seem especially vulnerable. Why 500? Why 250?
I’d feel a lot better if organizations and the public would assert their rights and demand that governors, as Tom Cruise was required by Jack Nicholson in “A Few Good Men,” to ask nicely. This reminds me of Boston, of all places, meekly submitting in 2013 to a completely illegal demand by police that its citizens stay inside while the search for the Boston Marathon bombings was underway. Fear is a dangerous tool in the hands of the powerful, who have a nasty habit of becoming totalitarians if they sense any lack of resolve among their potential lackeys and victims.
2. Every now and then Jake Tapper’s once significant commitment to honest journalism creeps out of its post-CNN recruitment paralysis. Tapper recently opined on the air that Democratic voters were acting like progressive pundits:
“To be completely frank, I’m getting real 2004 vibes tonight…Democrats want to defeat an incumbent Republican so badly…that they decide which one is electable…and they decide, okay, it’s John Kerry, or in this case it’s Joe Biden… the point is that when you have the Democratic electorate deciding that they are all a bunch of Rachel Maddows and Chris Hayess and the like, that they’re just, you know, progressive pundits and they’re going to pick out who is the best one, maybe they don’t necessarily always know what they’re doing.”
“Hey! Where’s Tapper’s Kool-Aid? Get him a straw, quick!” I assume that within days, a former female guest will reveal that in 2014 Tapper complimented how she looked in her dress and asked, “Are you working out?,” leading to his immediate dismissal.
A fair point made by CNN critics: “I wonder why he didn’t say “Don Lemon and Chris Cuomo?” Continue reading →
1. Do something, blame someone…In Plano, Texas, police have charged Lindsey Glass with violating a law making it a misdemeanor to negligently sell alcohol to a “habitual drunkard or an intoxicated or insane person,.” It seems she served Spencer Hight two gins, two beers and a shot of alcohol during two visits to the bar where she was working in September 2017, before Hight killed Meredith Hight and seven other people. After police officers shot and killed him, an autopsy found that Hight’s blood alcohol level was about four times the legal limit. The arrest affidavit said surveillance video shows that Hight was unsteady, spun a “big knife on the bar,” and could be seen “pulling out a gun” from his waistband.
It’s a terrible charge, and an unethical prosecution. Glass texted a co-worker, another bartender, saying that Hight had been spinning the knife and told her had had to go “do some dirty work.” A report by the Texas Alcoholic Beverage Commission said that the other bartender had called an owner of the bar, who instructed that police should not be called. Glass was so concerned that followed Hight to his ex-wife’s home and then called 911, according to local station Fox 4.
A lawyer for Glass emphasized that his client had called 911 and said she had been commended by police. “It is shameful of the Plano Police Department to go after the person who was vital in trying to stop the horrific events of that evening,” he told Fox 4 and NBC in a statement. Exactly right. Police, spurred by public anger and frustration, want to find someone to blame. The fact that the drunk went off and killed eight people is pure moral luck. It seems that the bartender went above and beyond her civic duty, at some personal risk, to follow Hight. She was originally commended by police for her actions. [Pointer: ABA Journal] Continue reading →
“Porgy and Bess,” the now iconic opera that premiered in the United States in 1935, tells the tragic and heroic story of a Southern African-American ghettoemploying some of the most memorable music in the musical theater canon. Composer George Gershwin denied licensing rights to companies that wanted to use white performers in the opera (requiring black make-up) and his estate still stipulates that the work be performed by an all-black cast, or rights will be denied.
It will not shock anyone who has read much here to learn that I oppose Gershwin’s all-black edict, just as I oppose objections to actors of any race being prohibited from playing characters of different races. The only question should be whether the production and artistic version is fair to the work and to the audience. Prior restraint of any vision is antithetical to the spirit of the performing arts. I happen to think that a white version of “A Raisin in the Sun” would be ill-advised, but how do I know for sure? I’ve been proven wrong before, and more to the point, I’ve proven others wrong with my own productions.
The inevitable result of Gershwin’s grandstanding, for I believe that’s what it was, is that most people never have a chance to see a full production of “Porgy and Bess.” Yet there is no reason why the cast would have to be all black. Let’s even put aside the inflammatory issue of “black-face.” Some characters in the show, like the snake-like hustler Sporting Life, could be portrayed as white without distorting the show one bit. Non-traditional casting principles would argue that the whole cast could consist of whites, Asians and others playing the black characters. It would be fun—yes, I think of this kind of principled fight as fun—to cast the show with light skinned African-Americans and mixed race performers who identify as black. What would the Gershwin estate do about that, I wonder? Continue reading →
I guess I’m not as recovered as I thought: one high energy ethics presentation to a sluggish audience today and I was fried. This better not be encroaching old age, or I’ll be pissed.
1. Thank you for making the open forum this morning active: I wish you all had been in my audience today. I haven’t read any of it yet (I did finally get your excellent comment out of moderation, Michael R!); I’m trying to get my own posts up.
2. Stolen art ethics. No doubt: the looting of art from the Old World by American tycoons and museums is a long-time ethics scandal, and the international court battles settling the disputes will continue for a long, long time. The argument over a 2000-year-old bronze statue, known as “Victorious Youth between the Getty Villa and Italy, however, is not as clear as most. Italy’s highest court has ordered that the sculpture should be returned to Italy. Currently, it is on display at the villa on the outskirts of Los Angeles, which is part of the J. Paul Getty Museum. It was retrieved from Adriatic waters by Italian fishermen in 1964, and sold to successive collectors and dealers. After a decade-long legal battle, Italy’s Court of Cassation ruled that the statue should be confiscated and brought back to Italy, rejecting the Getty’s appeal. Getty is not giving in.
The ethics as well as the law is murky. This is not a case like King Tut, where Indiana Jones-style archeologists and adventurers, just uncovered foreign cultural treasures and took them home. Before acquiring the prized artifact, the Getty undertook a comprehensive, five-year study of whether the statue could be purchased legally and in good faith. Their due diligence extensive analysis of international, Italian, American and California law and of Italian court decisions pertaining to the work.
In 1968, Italy’s Court of Cassation ruled that there was no evidence that the statue belonged to the Italian state; after all, it is Greek. Although the fishermen took the statue onto Italian soil, the court did not find that its brief presence in Italy transformed the sculpture into a component of Italian cultural heritage. Eventually the statue made its way to a German art dealer who put the statue up for sale. According to the Getty, in 1973, acting on a request from Italy, German police initiated an investigation into whether the German dealer had received stolen goods. The investigation was dropped for lack of evidence of wrongdoing. In 1977, the Getty purchased the bronze in Britain for almost $4 million from a gallery affiliated with the German dealer. The bronze has now been publicly exhibited, studied and cared for at the Getty for 40 years. Continue reading →
It just feels like a gliddy glup gloopy nibby nabby noopy kind of day…
1. Musings on the illness of George H.W. Bush. Perhaps I am over-sensitive, but I found the long segments and speculation on cable news this morning about George H.W. Bush suffering from “broken heart syndrome” sensational, intrusive, and wrong. The man is 93, and he’s suffering from a blood infection. As my Dad said often after his 80th birthday, and eventually proved, when one is 80 or more. you can drop dead at any moment, for any reason. Yes, we all know of long-time married couples of advanced years who perish in close proximity. However, the “broken heart syndrome” is anecdotal, without clinical proof, and, essentially, fake news with a romantic tinge.
[Pointer: valkygirrl]
If vile people like Professor Jarrar will attack Barbara Bush when she dies, imagine what George H.W. Bush has in store. The elder Bush is near the bottom of my Presidential ranking, in the general vicinity of his son, Jimmy Carter and Barack Obama but The Ethics Alarms position is that every single President of the United States is owed respect and a debt of gratitude for accepting the overwhelming challenges of the job, and doing, in every case, what he felt was in the best interests of the nation. Before Harry Truman, even taking away the assassinations from the mix, the Presidency was regarded, accurately, as a killing job, with more Presidents than not dying soon after leaving office. That’s not true any more, but the job is still a terrible physical, emotional and mental burden. The first words out of any American’s mouth when a former President is ailing should be “You have the best wishes of the nation,” and the first words when any former President dies should be “Thank you.”
2. And this has to do with “collusion” how? The raid on President Trump’s fixer Michael Cohen revealed that Fox News host Sean Hannity owns millions of dollars worth of real estate across several states, with links to several shell companies that bought $90 million on 877 residential properties. This is all confidential information, and should never have been jeopardized by the Special Counsel’s effort, coordinated with New York State prosecutors, to gather as much dirt on President Trump as possible—all the better to impeach him with. That this information was leaked to the press indicts the investigation, the process, the judge who allowed the fruits of the raid unrelated to Trump to be obtained, and the lawyers involved. Of course, the fact that Cohen had these records also rebuts Hannity’s claim, obviously disingenuous from the start, that he wasn’t Cohen’s client, but never mind: Hannity should not have been placed in the position where there was anything to deny.
When we last heard from photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque. In 2011, Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.
Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an accident, snapped by the monkey while it was messing around with his equipment?
About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair. Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?
Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA) brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder. Continue reading →
Ethics Alarms 