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Spring 2011 Speaker Series

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We welcome to Tulane Law School the following speakers as part of our Second "Future of Copyright" Speaker Series.

Jane Ginsburg (Columbia Law School)
Kenneth Crews (Columbia University)
Nina Paley (independent film maker)
David Carson (Copyright Office)
Jule Sigall (Microsoft)
Siva Vaidhyanathan (Virginia)

Each of our speakers will also be interviewed for the IP journal.  We are very much looking forward to hosting our speakers!

CLE on Who Dat held February 5.

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The New Orleans Bar held a CLE on the Whodat controversy, featuring Gabe Feldman and Marie Breaux (who teaches Copyright and Trademark Practice at TLS).

For more information about upcoming CLE's: visit the New Orleans Bar website.

Tulane Community Reacts to 'Who Dat' Controversy

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/tlscenters/iplc/images/who_dat_sm.pngLately the city of New Orleans has been buzzing with news that local retailers have received “cease and desist” letters from the National Football League for selling merchandise using the phrase “Whodat” in combination with a fleur-de-lis; on the basis of a 1988 state trademark on the term filed by the New Orleans Saints.

The Tulane Law community has been active in providing context for the story:

TLS Prof. Tania Tetlow on who owns Who Dat

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/tlscenters/iplc/images/red_blue_seats.pngWhatever the answer to the legal question of who owns “Who Dat,” the clear cultural answer is that the people of this city own it. It represents New Orleans in all of its glory — undaunted and ungrammatical, our language a meld of port city immigrants and African heritage.

We ask “Who Dat Gonna Beat Dem Saints” as a demand, an assertion, but also sometimes as a real question. We are used to losing, to having our hopes dashed. From the end of the cotton boom to the passing of the oil rush, we have never again found our economic feet. We are not very good at capitalism, not very good at striving to be the biggest or richest American city. Yet we know who we are. Who Dat?

We define ourselves by the fact that we value our culture so intensely, because we spend inordinate amounts of time wearing costumes to march in parades and cooking mysterious brews because our ancestors did. Who Dat expresses all of those things in shorthand. It symbolizes our unity, despite the absurd forces of race and class that drive us apart. Right now it expresses the transformative power of sport to make us hug strangers, to see each other as brothers and sisters. Even if we don’t look alike, we talk alike. We speak our own language. And no trademark symbol can ever change that or claim ownership of it.

Who dat say dey gonna beat dem C&D's?

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/tlscenters/iplc/images/red_blue_seats.pngSo, all over the local news right now is the story of how the NFL has sent cease & desist letters to New Orleans businesses retailing “whodat” branded apparel combined with fleurs des lis &/or the colors black and gold. It’s pretty exciting that anyone in Louisiana is excited about IP even a little bit, and the situation is pretty messy- I could write a whole article about it, but frankly it’s likely to be a flash in the pan story. Instead, I’ve summarized some interesting facts:

1) The purpose of trademark law, generally speaking, is to give business entities a mechanism for protecting their brands, on the theory that this protection helps consumers associate goods/ services/ products with a particular user experience or level of quality.

1a) The Saints, and the NFL, spend a ton of money trying to get people not just to watch football games, but to buy official Saints merchandise- or more accurately, to create enough of a market for that merchandise that they can sell the manufacturing rights for even more tons of money. Keep in mind that without trademark protection, this wouldn’t be something worth selling, since any manufacturer could make and sell NFL-branded gear. The law creates the product. Whether that’s a good thing or not is something for you to decide.

1b) Who actually gets awarded the merchandising contracts is actually the subject of a pretty interesting current Supreme Court case, American Needle vs. NFL.

2) Reebok’s got the exclusive contract with the NFL right now for all merchandise, and makes a bunch of “Who Dat” labeled products.

4) In order to keep their trademarks, owners are required to proactively “defend” them (usually by sending nasty letters), or risk having those marks deemed “abandoned,” in which case they basically stop being property that can be licensed, etc. The problem with folks calling to eg. boycott NFL sponsors until the Saints give “Whodat” back to the people is that this kind of voluntary abandonment would probably involve breaching a fat contract with Reebok. Again, up to you to decide if that’s a bad thing.

5) The trademarks (there are actually two) in question are actually only registered at a state level. This isn’t legal advice, but it seems Whodat still belongs to The People outside of LA. That said, I checked the national registry and there is a Federal trademark on “Who Dat?” for apparel, owned by some guy who runs a leather boutique in NYC.

6) Part of the problem here is that whoever approves trademarks at the state level seems to be operating under some edict pretty far removed from that “prevent consumer confusion” goal I was talking about before. Check out this selection of other current, apparently valid Louisiana Whodat trade/service marks & trade names. As far as the State of Louisiana is concerned, these are totally distinct from the Saints’ mark. Think there’s any chance of getting any of the businesses behind these products confused with the Saints? Or with each other? If you do, ask yourself “what’s the point of protecting trademarks at all if we can have a whole bunch of competing ones? Who approved all these similar marks? And where is the oversight?”

KREWE OF WHO DAT
(registered to Who Dat? Inc.)
(paper goods, clothing, advertising)

WHO DAT NATION? WE DAT NATION
(clothing)

BLACK AND GOLD WHO DAT!
(paper goods)

WHO DAT NATION FAN CLUB
(promotional, advertising)

“WHO DAT SAY HELL AIN’T FREEZING OVER GEAUX BOYS” & LOGO: BUMPER STICKER GOLD WITH BLACK LETTERS & TWO FLUER DE LIS’, ONE ON EACH END
(paper goods, clothing)

WHO DAT’ITUDE, LLC & LOGO: IS A FLEUR DE LIS WITH WHO DAT’ITUTE GOING ACROSS AT AN ANGLE
(paper goods, clothing & toys)

WHO DAT KIDS CLUB
(paper goods, clothing, advertising)

WHO DAT LADIES
(clothing, jewelery & papergoods)

WHO DAT & LOGO: THE WORD “WHO” FOLLOWED BY A WORD FORMED USING A “D”, A FLEUR DE LIS, “T”
(jewelery)

THE WORD “WHO” FOLLOWED BY THE WORDS “DAT” FOLLOWED BY THE LETTERS “N,A” A “FLEUR DE LIS” SYMBOL AND THE LETTERS “ION”
(jeweler, clothing)

“WHO DAT STATION” & LOGO: A STATION TYPE BUILDING WITH AN OPEN EXPOSED ROOF THAT DISPLAYS AN ENCLOSED FOOTBALL FIELD WITH “WHO DAT” SUPERIMPOSED OVER THE TOP/REAR ROOF SECTION AND SILHOUETTE OF BIG CENTRAL CITY BUILDINGS IN THE BACKGROUND WITH RADIO SIGNAL/WAVES EMITTING WHILE..
(paper goods, clothing, advertising)

WHO DAT?, INC. & LOGO: THE WORD “WHO” FOLLOWED BY THE WORD “DAT” FOLLOWED BY A QUESTION MARK WHICH HAS A CARTOON STYLE ROUND FACE AS THE PERIOD. ALL IN BLOCK STYLE LETTERS IN BLACK WITH WHITE TRIM, ALL ON AN ORANGE BACKGROUND.
(paper goods, housewares, toys, staple foods, advertising)

WHO DAT DREAM
(clothing, jewelery, paper goods)

WHO DAT? & LOGO: BLOCK LETTERS SPELLING “WHO DAT” FOLLOWED BY A QUESTION MARK. COLOR- YELLOW OR GOLD OUTLINED IN BLACK.
(meats & processed foods)

WHO DAT BREW & LOGO: “NEW ORLEANS BREWERY CO. U.S.A.” IN BLACK PALATINO LINOTYPE, “WHO DAT BREW” IN BLACK PALATINO LINOTYPE, ARRANGED IN AN ARCH PATTERN AT THE BOTTOM OF THE LABEL. LIGHT GOLD BACKGROUND WITH SMALL DARK GOLD FLEUR DE LIS LARGE GOLD FLEUR DE LIS IN THE CENTER WITH PURPLE SHADED EDGES.
(beer)

WHO DAT?
(wine, spirits)

WHO DAT! LAWN CARE
(lawn care)

WHO DAT HAIR
(pop in hair extensions)

7) A side note: why is the NFL firing off these nastygrams on a trademark actually owned by the Saints? If this is a question that burns within you, you might want to read more about American Needle and its history.

8) There are some other trademark issues like dilution that are relevant, but not explored here. The NFL guy interviewed in the Times-Pic made a point about this. Basically sometimes a trademark holder can enforce her right against a maker of something not covered by the trademark (like, say, pop in hair extensions) if it threatens public association with the term in any of a variety of ways.

So basically the news/internet is freaking out about some nasty letters. In theory something more could happen with this story, but it’s probably not going to. The retailers will probably get scared off and eat the cost of some shirts. The NFL isn’t actually obligated to sue to defend their mark, just show they made an effort. The retailers might have more of a chance than they realize in court, but it’s not a slamdunk for them and they probably won’t want to risk it. People will still use Whodat mostly to talk about the Saints, and occasionally in other contexts. Someone will sell bootleg t-shirts on the street “in protest,” and probably make a little money without getting caught. The NFL will continue to feel like populist entertainment most of the time; but glimpses of the bajillion-dollar licensing machine will occasionally be visible behind the curtain.

And ultimately, if you’re that worked up about it, there’s nothing stopping you from dusting off the ol’ BeDazzler, picking up some glitter puff paint, & making your own fan gear that says whatever you want it to. Trademarks only apply to uses in commerce- so all this hoopla is about what you can buy, not what you can wear.

Update: An Associated Press article reports that the NFL has stepped back from the position in the C&D, stating that it does not own exclusive rights to the phrase nor the colors black and gold unless “marketed as a Saints or NFL product.” Meanwhile, one retailer targeted by a letter now says the story turned out to be the best thing ever for my business.”

Building a Book Scanner

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Here at the Center for IP Law & Culture/UPP, we’re working hard to complete The Durationator™, a web-based software tool capable of determining the copyright term (how long a creative work remains in copyright before entering the public domain) for any given work, anywhere in the world. It’s a project that seemed simple when we started two and a half years ago; but has grown substantially in scope and complexity- and in the process, illustrates major gaps in our ability as individuals to access the fundamental knowledge necessary to make these basic determinations in a modern era.

For example, it turns out that for certain types of works, a duration/public domain determination can rest on whether a properly registered work was later renewed. This analytical requirement is common knowledge, and most IP students can recite the guidelines for the copyright term of a published work properly renewed in a particular date range. In practice, however, the only way to make this determination is to consult the “renewal records,” many volumes of which only exist in out-of-print hard copy. Our software needs to help the user make this determination for herself, so we decided to fix the problem by compiling what we believe will be the first truly complete database of all registration records necessary to make a copyright determination. As government works, the renewal records are themselves in the public domain.

The first step in the process is digitizing the records. While Tulane’s copy was destroyed in Hurricane Katrina, we were able to secure a complete set of records- comprising roughly 17 linear feet- from a very generous neighboring institution. We priced out commercial document scanners, were staggered by the costs, tried scanning the records ourselves using photocopiers with unusable results, and decided to build our own document scanner using plans from Dan Reetz and the community at DIYBookScanner.org. While just renting a scanner would cost thousands, our total outlay on the project thus far is under $500

This following narrative documents building the core hardware components. Future articles will describe the hardware system controls and open-source tools used to make the thing run.

I started out by keeping an eye out for promising garbage while walking the dog. I quickly found this yard sign in a trash can. That supplied the coroplast and this cool wood which could be used for a sliding cradle mechanism.
durationator001

Shortly afterwards, I found a renovation dumpster full of mostly unused wood. Without writing a full essay on the hierarchy of dumpsters, renovation dumpsters typically contain a fair bit of "cut-off," leftover scrap wood from whatever framing/repair the contractors were working on. Exercise caution, though, because they’ll also contain whatever nastiness was removed from the building. Note that having a helper to trim long pieces can be handy.
durationator002 

Remember to check for and remove leftover nails and staples!
durationator002a

I cut a section from the signpost to use for the cradle support.
durationator003

From the beginning, I wasn’t crazy about the hinge design of the original Instructable, and the only drawer sliders I could find were the side-hung kind. I played around for a while using two hinges- one at the platen and one on the column, but wasn’t happy with the result. Then at the Green Project (http://www.thegreenproject.org). I found this funny little object with four wheels and a bolt sticking out of it, and started to make a track for it.
durationator004

I had to cut pieces of wood to make rails for the slider. To finish it, I would have had to make a top for the rails with a gap behind for the bolt, but in initial tests the wheels started binding on the cap.
durationator005

Fortunately, at the Habitat ReStore (http://www.habitat-nola.org/restore/). I found more of these objects being sold with rails- turns out they’re tracks for sliding doors. This one can take any 1/4" bolt and uses two of them (not shown), which adds some rigidity. Note that using washers will keep the bolt from chewing up the side of the platen over time.
durationator005a

Then I cut the aluminum sliding door rail to fit the column. This size was pretty arbitrary, it just has to be high enough to turn the page underneath. I had a three foot piece of cutoff, so I cut the track to leave space for a) bolting the column to the base and b) cutting holes for the pulley above it. I didn’t put a stop on the track, but should. This picture is totally fake, btw. Shot it, then started to cut, then gave up and tried the circular saw, which ripped through the aluminum like butter.
durationator006

I cut the coroplast to 11×15 using the leftover track as a straight edge. Utility/exacto knives are great for precision but can "wander" pretty easily in my experience; so I frequently opt instead for a sharp BFK.
durationator007

I made the base out of dumpstered 2×4’s, which had been ripped to like 2×3. The sizes were a little arbitrary- 15×24". The weight of the 2×3’s and the column at the back mean the scanner won’t tip even though the cradle actually extends about 2 inches forward. Smaller base means less weight/more portability! I attached the sliding cradle support to two pieces of plywood and attached them to a pair of side-mounted drawer slides inside the base. I then mocked up a cradle support out of cardboard & scrap wood and taped some shims to it so I could start brainstorming camera arms.
durationator009

Then I cut the cradles. Here too the size of the triangle is arbitrary, I just cut 45 degree triangles out of the front of a very cheap drawer that had fallen apart, and used a piece of fence post for the bottom, cut to fit inside the sliding base. I used panel nails ($1/pound at the Green Project) and wood glue, and glued in two little shims for extra support. I drilled two 1/4" holes exactly halfway through the base- into one goes the bolt to attch the cradle, glued into the other is a dowel to keep the thing aligned straight. Here the dowel isn’t yet glued/pushed down. If I had more time, I would have used a lot more dowels in this project- I love the seamless finishes you can get, they’re less likely to loosen over time, and they’re an excuse to use my vintage Stanley 59 jig.
durationator010

Here’s the finished base. I added velcro to attach the coroplast to the cradle. This is helpful for two reasons: a) you can remove the pieces for transport; b) it’s easier to adjust the spine width with them removed. In future versions I won’t bother with the slide, just use the bolt + dowel spaced exactly an inch apart, and drill 1/4" holes every .5 inches or so across a flat piece of plywood inside the sliding base.
durationator011

Clamped everything back on and started experimenting with camera angles using a piece of 2x cut with a miter box. Our scanner will be used by law students who are both super-busy and not really imaging geeks, so I didn’t want to use an articulating arm and introduce all that room for error. We know that the angle from the floor will always be 45 degrees to match the 45 degrees of the platen/cradle, and that as long as the book is centered on the cradle, that angle can always be achieved with books of varying sizes or spine sizes by adjusting up or down and zooming in/out (using only the optical zoom). This photo represents the highest the camera would ever need to go- capturing the entire cradle area. A later version may introduce a second sliding mechanism allowing the camera to go in/out, eliminating the need to zoom, but it’s unclear if in order to be usable, the camera would have to "zoom" in to the point where it was interfering with the sliding platen, and potentially getting too close to the boundary point between the camera’s regular and macro focal distances.
durationator012

Glued the nonslip mat to the coroplast using some automotive headliner spray adhesive that I had lying around. I used the leftover aluminum track to smooth out the bubbles, then glued it & let it dry under weight (I used 45lb fitness weights). Finished the edges with black duct tape. Then attached the velcro and clamped an angle into the exact center in order to doublecheck my arm height and angles.
durationator013

It took me a while to find a single-plane adjustable arm. Finally at the Green Project I saw a nice pair of wooden crutches. They should be cut such that at their lowest point the tip of the crutch is level with the edge of the cradle, and their highest point is just above that line drawn in the last mockup.
durationator014

I put a handle on the platen (which is just two picture frames with one side each removed, cut at a 45 degree angle on the miter box, then nailed to two more triangles made from that busted drawer. I was planning to paint everything using a can of leftover flat black paint ($2 at Big Lots); but it had gone rancid and the smell was horrible… so instead I used some leftover quick-dry stain. In an ideal world I’d still use stain, but a much darker one (and I’d use new wood, route the edges, etc etc etc…). I may still need to paint the crutches black if reflection is an issue. Held my breath and used a tiny bit of the black paint to color the edges of the platen triangles, entirely to cover up some sloppiness in the cuts.
durationator015

Crutches attached. Note that here they’re still a little too long. Cameras are currently attached with corner braces and thumb screws, but that will change to a mount plate- again, to remove the possibility for user error. As it stands it’s pretty easy to turn the camera until the bottom of the frame is aligned with the binding of the book, but again, this is something that can be calculated and fixed in advance. Remember that it’s important to align the camera arms such that the lens is centered over the image, it’s easy to accidentally center the arm instead, which will create a 1-1.5 inch offset! Easiest way to do this is using a string with a weight held at the center of the lens and lowered to the base. Also in this design we have to compensate for the extra ~1.5 inches that the cradle hangs over the front edge; it’s easy to center the thing over the base and be off by another .75 inches.
durationator016

I drilled two holes in the column, one to support the two pulleys, and one for the line to pass through. Two pulleys are necessary to keep the cord from dragging. I used a double-pulley because I found it cheap, but it leaves the door open to make a lever or foot pedal to lift & raise the platen in the future. The cord is just tied to the slide.
durationator017

I found a cool iron cylindrical 4lb window sash weight, but it turns out it’s a little too heavy to properly counterweight the platen. Until I get up the nerve to cut it down or find an alternative, I’m using a 1.25lb fitness weight.
durationator017a

Right now for lighting I’m just using a gooseneck clip light. I already have two light fittings that can support higher wattage bulbs, but need to make an enclosure. Many of you seem to have your lights directed towards the pages, but my reading suggests this is a bad idea. Glare is light reflected back into the camera. A little bit of research on reducing flash glare suggests this is least likely to happen when the light source is 45 degrees from the camera; ie, perpendicular to the floor in this design. Of course, the light spread means that not all the angles are a perfect 45 degrees, but having the light directed down and shielded from the sides sure helps. Note also that lumens decrease exponentially the further you get from your subject; so the closer you can get the bulbs to the book, the better (allowing for reflection, etc). I toyed with the idea of mounting the lights to an attachment rising from the platen itself, but decided that the constant movement would reduce bulb life when using filament bulbs to the point where it’s not worth it.
durationator018

Note that I didn’t have to worry about a trigger button, because we’ll be connecting the cameras directly to a computer. Instead, I built a foot switch that sends a signal to the computer via USB. This is possible because we bought Canon SX100 IS cameras, which have more options available in the Canon SDK & therefore in both commercial Windows multicamera remote programs like PSRemote & open source software like GPhoto2. I’ve documented the USB button here.

Durationator Reviewed

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/tlscenters/iplc/images/durationator_sm.pngRadio show “Hearsay Culture” (KZSU-FM, Stanford) had an opportunity to interview William Patry- author, scholar, and Senior Chief Counsel at Google, Inc. Here’s what he had to say about the Durationator™

"I’ve also seen a demonstration of Elizabeth’s Durationator, which I think is a fantastic product and I encourage everyone to use it. In essence what they have done at Tulane is magical and it’s magical because it provides people with data to determine when a work is in the public domain; and that’s an important step because you don’t want to use a work that’s still under copyright- but you do want to use a work that’s not- and figuring out when it is under copyright and when it isn’t is an incredibly difficult task, because it can’t be limited to the United States… and even limiting it to the United States, there are a host of particular problems that you would face… so I think the Tulane project is a pathbreaking one, and I certainly hope everyone utilizes it."

- William Patry (Author, Patry on Copyright; Senior Chief Counsel, Google, Inc.) Interview in Hearsay Culture #100)

The complete interview can be heard here, in “Show #100.” Note that IPLC co-director Elizabeth Townsend Gard was also interviewed about the Durationator™ in Show #99.

 

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