The "images" that you and the replica-maker saw were delivered by your TVs, at a rate of 24 images per second.
Your reasoning would seem to suggest that someone who'd only ever seen people in Spider-Man costumes (including in copyrighted movies and TV shows), would be allowed to replicate that look in any format, because "costumes are not protected", and the replicator (a bit like an engineer doing a clean-room reimplementation) has only seen the costumes.
Good luck with that interpretation! Copyright is acquired by creative effort and fixation in a medium, and not waived by happenstance of particular-revelation-to-others. And by legal precedents cited in sibling threads, even the story on *costumes* is more complicated than simply "not protected" – creative design elements other than the utilitarian function are protectable. The mere fact that a figurine is instantly recognizable by shape and coloring as "Left Shark" kind of proves there are character design elements separable from the costume, doesn't it?
This obsessions with the 'costume' aspect is a distraction, not the reason I see a reasonable claim of IP.
The original cease & desist says "intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used in Katy Perry's Super Bowl 2015 half-time performance". Images, not just costumes. And as a reflection of underlying IP, not necessarily the IP itself.
Most of the public discussion is of the *look* and *personality* of the shark *character*, which appeared in a televised concert performance. (While many may want a "left shark costume", a lot more cultural significance has been associated with "left shark" as a character.) A costume is just one incarnation, as is a figurine, or a doll, or an animated-cartoon.
And how did the replica-figurine-seller even know what Left Shark looked like? He did not have direct access to any costumes. He didn't implement the generic idea of "man-wearable shark costume". He didn't market it as "figurine of man in shark costume".
He worked from a fixed, tangible medium – an entertainment telecast concert performance – which is undoubtedly both copyrightable and copyrighted. He made a version that's instantly recognizable as one of the Perry Concert Sharks.
Additionally, in the process of designing the show, surely a series of fixed-medium scripts and concept drawings existed first, and guided the creation of the costumes and the performance choices of the actors/dancers.
Go ahead, try a search. Find a preceding shark cartoon character that would be easily confused with the Perry Concert Sharks among the public. (And, happy to see you're acknowledging the issue is a *character* not merely a *costume*. Can't characters like Spider-Man or Barney-the-Dinosaur be protected even though they often instantiate as people-in-costumes?)
Doesn't matter if 'Left Shark' is a trademarked term – that's not the case. Rather, everyone knows it designates one of the Perry Concert Sharks, so it establishes the origin of the interest and commercial value for the knockoff replica.
They're similar, as any shark costume would be. (They're also very evocative of Sanrio characters. If 'Hello, Kitty' had a shark friend, it'd look like Left Shark. A Sanrio v. Perry dispute might be fun!)
But if "almost identical", it should be easy to find earlier images of cartoonish/costumish sharks with similar proportions, eyes, coloring. Will those turn up? I don't know; there's lots of room to make distinctive personality-indicating variations in stylized animals.
At the moment, a Google Image search for [costume shark] turns up hundreds of variants... but not a single one could be confused with the Left Shark. (A search for [disney shark costume], to see if perhaps some professional-grade theme-park costume is similar, also comes up with nothing confusable in look until row 17, after about 150 other variants, where a makezine image of the disputed figurine appears.)
And in this case, the commercial offering wasn't promoted as a "classic American costume-shark" or "anime-inspired cute shark". It was, "Left Shark".
Notably, the C&D recipient wasn't offering a costume (or costume pattern), but a figurine (or its schematics).
They were only working from a costume as a model... because they'd observed it in a copyrighted concert/dance telecast featuring the character. The interest in "left shark" has not been strictly costume-focused, but more character-centric: the personality conveyed by its look and dancing.
If by outside chance the official direction to the dancer – a veteran of Perry's tours, apparently – was to be "adorably clumsy and out of sync", that would strengthen the case it's a creatively-authored character, wouldn't it?
If it's a new character for the Prismatic tour, it almost certainly existed in concept art before realized costume. Does revealing a distinctive character-look in costume inherently abandon all rights to it, whereas a single published comic/drawing beforehand would've protected it? That wouldn't make much sense...
As of late last year, the NFL actually wanted to be paid *by* the halftime performer, but by January Katy Perry flatly denied paying anything. Still, who knows how, for example, the production costs were divvied up?
I suspect the Perry-NFL contracts are quite complicated – no simple 'work-for-hire' or 'pay-to-play' either way – but still probably expertly clear about who retains rights in all elements of the performance. I'd also bet the sharks appear in Perry's North American tour, starting this summer. (I suppose it's even possible they've appeared in some form in her current world tour, even before the Superbowl. If this dispute lingers we may find out.)
The sharks are not primarily costumes, but characters with a distinctive, recognizable look who appeared in a designed, televised, copyrighted performance.
It's possible they've appeared in earlier Perry concerts, and it may even be part of the creative-direction that one is sloppy/goofy.
I'd be interested to learn the exact web of contractual relationships between Perry, her stage-show designers, the NFL, and others. But the idea that *someone* has rights to these characters seems no more radical to me than the idea that some entity has the exclusive right to license Spider-Man dolls and costumes.
It's very suspicious that Golden Frog is not naming this "one mobile wireless company's data service". Other than the context that this is a filing to the FCC, can we even be sure it's in the US?
Such in-flight data-tampering is a very different animal than traffic prioritization, and shouldn't be lumped together other. As a rare and egregious practice, it could be solved via name-and-shame in the market, or even basic laws against fraud. It doesn't need a federal 'neutrality' bureacracy.
(It'd also be relatively easy to work-around via self-help... such as VPN-like tunnelling.)
Um, just listing bad things since NAFTA doesn't show causality. Some other bigger things happened to the economy, too – the rise of competitive industries worldwide, the dotcom bust and multiple wars, the housing bust and financial crisis.
Mexico has become more economically stable and competitive in recent decades – it's grown a little faster than the US since the start of NAFTA – so the in-migration and pressure on wages (from migrants or imports) could easily have been worse.
The reliability of the anti-trade Public Citizen research is revealed by goofball spin like "the average nominal price of food in the United States has jumped 65 percent". Nominal? Only economic policy shysters will pick nominal prices over a long period to try to scare people. The rise in CPI since 1993? 63%. So in real terms, food has gone up by maybe 2%. And is it really likely NAFTA has made that worse - compared to fuel costs, 1.5B more people on the planet, 700 million moved out of poverty (more than halving the global poverty rate)? If NAFTA has led to more people and products moving over borders – as Public Citizen fears – it's almost certainly made food prices (and those of lots of other goods) lower than they would have been otherwise.
Another possibility: the DoD thinks the post is 'dangerous viewing' for troops. So, as when they blocked access to the entire Guardian website (http://www.techdirt.com/articles/20130627/22485123649/defense-department-blocks-all-web-access-to-g uardian-response-to-nsa-leaks.shtml), they will be blocking any *.jhu.edu domains that host it.
But, those same domains may include other information that the DoD/troops need (and have "paid for" in research grants and joint programs). Hence, because (like early versions of China's firewall) their censoring tech is crude and whole domain/IP-address oriented, they pressure JHU to segregate content for troop-friendliness.
...integrate this into an episode next season. Like, the new neighbors are corporal-punishment fire-and-brimstone types... and while visiting their house, Phil notices this book on their bookshelf, with his family on the cover, and is perplexed. Then the dad's family and in-laws get involved somehow, the original picture (where the other spokes of the family were cropped out) is found online, misunderstandings and hilarity ensue.
While less common, Americans do sometimes treat "United States" as plural, and there's even some evidence the usage is making a comeback. See for example this about Obama saying "These United States..." recently:
I think it's most common if wanting to emphasize states' rights or distinct characters... so you also see it sometimes in the rhetoric of some right-wing/originalist groups. (["these united states" "ron paul"] = 744K hits; ["these united states" "barack obama"] = 244K hits)
So it *could have been* a consciously chosen affectation of Snowden's... though Wikileaks' editing makes it seem like their own error of clumsy group-composition.
Why isn't the statement signed with a PGP key, such as the one Wired thought could be Snowden's? Quite possibly, where Snowden currently is, he doesn't have confidence he could unlock his key for signing without compromising it to nearby minders.
...such that it only applies to data that's been processed into a reviewable form and delivered to an intelligence employee end-user.
I suppose if Google used the same definition, they could crawl web pages, use them to build indexes and train algorithms, but deny that any particular page has been 'collected' unless and until they show up in a user's search results.
Note also that Wyden used the qualifying phrase "on millions or hundreds of millions of Americans". Using this peculiar meaning of 'collect' Clapper could have given a fully-forthcoming, peculiar, but still self-consistent answer like: "No, even though we have received and indexed data records on hundreds of millions of Americans, each of our searches are configured to return only the top 10 results, thus our intelligence officers only ever 'collect' data on 10 people at a time. And we try really really hard to craft our queries so that most of those 10 results are foreigners, but you know how hard crafting precise queries can be!"
Another embellishment that could work really well for a twisty time-travel film like Looper: have slightly-alternate versions of the movie replace it during its run, ideally in secret.
The post-viewing discussions would then be delightfully confusing, and perhaps only by seeing them all would you get the full, full story.
(The 'Clue' movie way-back-when had three alternate endings in theaters.)
Even if not for narrative innovation, can we be very far from A/B Tested movie cuts, where on opening night every theater has a unique variant and after audience reactions some cuts are discarded while others proliferate?
Asshole geniuses may bruise a few people's feelings, but leave enduring work that stands alone, without regard to their personality. The asshole damage they can do is capped by their lifetime and personal interactions; the genius good they can do is unbounded by infinite reproduction.
But, given the observation leading this article, the incentives for creation and the personality are now more linked than before. We've actually *lost* one of the benefits of mass-reproduction -- detaching the work from the personality-outside-the-work -- when we go to voluntary payments. Some asshole geniuses will, at the margin, go into other fields (like banking or law) rather than creating great works. Not a win for the culture.
Not that I think this jusitifes (or that it would even be possible) trying to go back to the old system of copy-tolls. It's just an observation about the texture of the new deal. Maybe culturally we'll adapt, when we get bored with all the nice-guys, by adopting an ethic of even paying those we don't 'like' when they make us think.
...this insight also has a dark side. A lot of great creators were assholes. A world where you don't just have to be creative, but also likable, could miss out on some prolific careers.
When the assassination drones home onto their targets by facial recognition, then he'll have a good case. Of course, then it may be too late (for him).
Re: Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
Your reasoning would seem to suggest that someone who'd only ever seen people in Spider-Man costumes (including in copyrighted movies and TV shows), would be allowed to replicate that look in any format, because "costumes are not protected", and the replicator (a bit like an engineer doing a clean-room reimplementation) has only seen the costumes.
Good luck with that interpretation! Copyright is acquired by creative effort and fixation in a medium, and not waived by happenstance of particular-revelation-to-others. And by legal precedents cited in sibling threads, even the story on *costumes* is more complicated than simply "not protected" – creative design elements other than the utilitarian function are protectable. The mere fact that a figurine is instantly recognizable by shape and coloring as "Left Shark" kind of proves there are character design elements separable from the costume, doesn't it?
Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
The original cease & desist says "intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used in Katy Perry's Super Bowl 2015 half-time performance". Images, not just costumes. And as a reflection of underlying IP, not necessarily the IP itself.
Most of the public discussion is of the *look* and *personality* of the shark *character*, which appeared in a televised concert performance. (While many may want a "left shark costume", a lot more cultural significance has been associated with "left shark" as a character.) A costume is just one incarnation, as is a figurine, or a doll, or an animated-cartoon.
And how did the replica-figurine-seller even know what Left Shark looked like? He did not have direct access to any costumes. He didn't implement the generic idea of "man-wearable shark costume". He didn't market it as "figurine of man in shark costume".
He worked from a fixed, tangible medium – an entertainment telecast concert performance – which is undoubtedly both copyrightable and copyrighted. He made a version that's instantly recognizable as one of the Perry Concert Sharks.
Additionally, in the process of designing the show, surely a series of fixed-medium scripts and concept drawings existed first, and guided the creation of the costumes and the performance choices of the actors/dancers.
Re: Re: Re: Re: I'm with Perry's team on this
Doesn't matter if 'Left Shark' is a trademarked term – that's not the case. Rather, everyone knows it designates one of the Perry Concert Sharks, so it establishes the origin of the interest and commercial value for the knockoff replica.
Re: Re: I'm with Perry's team on this
But if "almost identical", it should be easy to find earlier images of cartoonish/costumish sharks with similar proportions, eyes, coloring. Will those turn up? I don't know; there's lots of room to make distinctive personality-indicating variations in stylized animals.
At the moment, a Google Image search for [costume shark] turns up hundreds of variants... but not a single one could be confused with the Left Shark. (A search for [disney shark costume], to see if perhaps some professional-grade theme-park costume is similar, also comes up with nothing confusable in look until row 17, after about 150 other variants, where a makezine image of the disputed figurine appears.)
And in this case, the commercial offering wasn't promoted as a "classic American costume-shark" or "anime-inspired cute shark". It was, "Left Shark".
Re: Re: Re: Re:
They were only working from a costume as a model... because they'd observed it in a copyrighted concert/dance telecast featuring the character. The interest in "left shark" has not been strictly costume-focused, but more character-centric: the personality conveyed by its look and dancing.
If by outside chance the official direction to the dancer – a veteran of Perry's tours, apparently – was to be "adorably clumsy and out of sync", that would strengthen the case it's a creatively-authored character, wouldn't it?
If it's a new character for the Prismatic tour, it almost certainly existed in concept art before realized costume. Does revealing a distinctive character-look in costume inherently abandon all rights to it, whereas a single published comic/drawing beforehand would've protected it? That wouldn't make much sense...
Re: Re:
I suspect the Perry-NFL contracts are quite complicated – no simple 'work-for-hire' or 'pay-to-play' either way – but still probably expertly clear about who retains rights in all elements of the performance. I'd also bet the sharks appear in Perry's North American tour, starting this summer. (I suppose it's even possible they've appeared in some form in her current world tour, even before the Superbowl. If this dispute lingers we may find out.)
I'm with Perry's team on this
It's possible they've appeared in earlier Perry concerts, and it may even be part of the creative-direction that one is sloppy/goofy.
I'd be interested to learn the exact web of contractual relationships between Perry, her stage-show designers, the NFL, and others. But the idea that *someone* has rights to these characters seems no more radical to me than the idea that some entity has the exclusive right to license Spider-Man dolls and costumes.
Confused filing & neturality definition
Such in-flight data-tampering is a very different animal than traffic prioritization, and shouldn't be lumped together other. As a rare and egregious practice, it could be solved via name-and-shame in the market, or even basic laws against fraud. It doesn't need a federal 'neutrality' bureacracy.
(It'd also be relatively easy to work-around via self-help... such as VPN-like tunnelling.)
Flimsy anti-NAFTA reasoning
Mexico has become more economically stable and competitive in recent decades – it's grown a little faster than the US since the start of NAFTA – so the in-migration and pressure on wages (from migrants or imports) could easily have been worse.
The reliability of the anti-trade Public Citizen research is revealed by goofball spin like "the average nominal price of food in the United States has jumped 65 percent". Nominal? Only economic policy shysters will pick nominal prices over a long period to try to scare people. The rise in CPI since 1993? 63%. So in real terms, food has gone up by maybe 2%. And is it really likely NAFTA has made that worse - compared to fuel costs, 1.5B more people on the planet, 700 million moved out of poverty (more than halving the global poverty rate)? If NAFTA has led to more people and products moving over borders – as Public Citizen fears – it's almost certainly made food prices (and those of lots of other goods) lower than they would have been otherwise.
Maybe also motivated by clumsy DoD site-blocking policies
But, those same domains may include other information that the DoD/troops need (and have "paid for" in research grants and joint programs). Hence, because (like early versions of China's firewall) their censoring tech is crude and whole domain/IP-address oriented, they pressure JHU to segregate content for troop-friendliness.
Modern Family should really...
Plural 'United States' not unheard of domestically...
http://www.theatlantic.com/politics/archive/2013/05/these-united-states-how-obamas-vocal-tic-rev eals-a-polarized-america/275739/
I think it's most common if wanting to emphasize states' rights or distinct characters... so you also see it sometimes in the rhetoric of some right-wing/originalist groups. (["these united states" "ron paul"] = 744K hits; ["these united states" "barack obama"] = 244K hits)
So it *could have been* a consciously chosen affectation of Snowden's... though Wikileaks' editing makes it seem like their own error of clumsy group-composition.
Why isn't the statement signed with a PGP key, such as the one Wired thought could be Snowden's? Quite possibly, where Snowden currently is, he doesn't have confidence he could unlock his key for signing without compromising it to nearby minders.
(untitled comment)
They've also redefined 'collect'
https://www.eff.org/nsa-spying/wordgames#collect
...such that it only applies to data that's been processed into a reviewable form and delivered to an intelligence employee end-user.
I suppose if Google used the same definition, they could crawl web pages, use them to build indexes and train algorithms, but deny that any particular page has been 'collected' unless and until they show up in a user's search results.
Note also that Wyden used the qualifying phrase "on millions or hundreds of millions of Americans". Using this peculiar meaning of 'collect' Clapper could have given a fully-forthcoming, peculiar, but still self-consistent answer like: "No, even though we have received and indexed data records on hundreds of millions of Americans, each of our searches are configured to return only the top 10 results, thus our intelligence officers only ever 'collect' data on 10 people at a time. And we try really really hard to craft our queries so that most of those 10 results are foreigners, but you know how hard crafting precise queries can be!"
Another reasoned takedown of simple "you are the product" thinking...
http://powazek.com/posts/3229
Taking 'rewards multiple viewings' to all-new levels
The post-viewing discussions would then be delightfully confusing, and perhaps only by seeing them all would you get the full, full story.
(The 'Clue' movie way-back-when had three alternate endings in theaters.)
Even if not for narrative innovation, can we be very far from A/B Tested movie cuts, where on opening night every theater has a unique variant and after audience reactions some cuts are discarded while others proliferate?
Re: Re: True, but...
Asshole geniuses may bruise a few people's feelings, but leave enduring work that stands alone, without regard to their personality. The asshole damage they can do is capped by their lifetime and personal interactions; the genius good they can do is unbounded by infinite reproduction.
But, given the observation leading this article, the incentives for creation and the personality are now more linked than before. We've actually *lost* one of the benefits of mass-reproduction -- detaching the work from the personality-outside-the-work -- when we go to voluntary payments. Some asshole geniuses will, at the margin, go into other fields (like banking or law) rather than creating great works. Not a win for the culture.
Not that I think this jusitifes (or that it would even be possible) trying to go back to the old system of copy-tolls. It's just an observation about the texture of the new deal. Maybe culturally we'll adapt, when we get bored with all the nice-guys, by adopting an ethic of even paying those we don't 'like' when they make us think.
True, but...
(untitled comment)
I prefer: all censorship is wrong.
Attack of the Drones
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