What We Talk About When We Talk About Editing

Random House logoLike Mike Madison, I noticed Jonathan Galassi’s op-ed in the New York Times on Sunday. Galassi—the president of Farrar, Strauss & Giroux—argues that ebook publishers who republish print books are committing at least a moral wrong by appropriating the work of the print publisher, even if they have the permission of the copyright owner. Mike views this argument, I take it, as one more sign of the “IP apocalypse,” but I have a somewhat different take: I see in Galassi’s op-ed a fascinating old copyright chestnut that has basically (and correctly) gone against Galassi.

The argument goes like this: the naive view of authorship is that authors sit down at their typewriters and churn out complete copyrighted works. But not only is this view incomplete on the input end—as just about everyone recognizes, artists slurp inspiration from all over the place—it’s also incomplete on the output end. Once an author (or a director, or songwriter) finishes a work, all sorts of things happen to it before it reaches the public as a final product, sometimes altering the content of that work substantially. Artists often chafe under the rule of editors, always forcing them to trim out the good stuff, but you can often tell which authors have gotten powerful enough to throw off their editors’ yoke, and not usually in a good way. “Doorstopper” is the term that comes to mind.

Galassi’s argument focuses on the creative nature of all that post-author authorship. And there’s a hidden suggestion in his op-ed—shouldn’t the publisher have some sort of proprietary rights over all the stuff it adds? The ebook publishers can distribute William Styron’s unedited manuscripts if they like, but not the version Random House put out.

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Should We Abolish Copyright in Academic Journal Articles?

scholarSome years ago, when I was on the Marquette Law Review editorial board, my responsibilities included obtaining a rudimentary copyright release from authors whose articles we had agreed to publish.  In fact, I signed the form myself when I published my Note.  If we did not obtain the release, we would not publish the article.  I presume this is still the Review’s policy, although current members can confirm or deny it, and I also suspect that many journals have a similar procedure.  If the “open access” movement continues to gather steam, however, one can wonder how long this and similar practices will continue.    For example, Professor Steven Shavell recently posted a draft, pre-publication article for public comment arguing that we should abolish copyright for all academic writings.

The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles? 

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Redskins Prevail in Offensive Trademark Case

Washington Redskins logoEarlier today (Nov. 16) the United States Supreme Court denied cert. in the case of Harjo v. Pro-Football, Inc., bringing to a close, at least for the moment, litigation concerning the legality of the Washington NFL team’s registration of its “Redskins” trademark. The decision not to hear the case was announced without comment.

In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

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