Up … and Away
posted by Michael Madison
I just came back from seeing the new Pixar animated film Up . It’s a charracteristically charming Pixar effort; all thumbs up! Plus, I got these neat-o 3D glasses. There’s a little IP angle to the film, though, and I want to use that to anchor this last of my guest posts.
It doesn’t spoil any of the movie to note that the two main characters share a moment talking about memories of eating ice cream in front of “Fenton’s” and counting passing cars of different colors. When I heard the reference the first time in the film, I made a mental note. When I saw the reference the second time — there’s a “Fenton’s” sign on an ice cream store — I said a silent “whoa.” The fictional Fenton’s of the film is indisputably modeled on the real Fenton’s, which is a local ice creamery and landmark on Piedmont Avenue in Oakland, California, only a few miles from Emeryville, where Pixar is located and where much of the film was made. When I lived in Oakland, Fenton’s was a late night haunt for me and my family. If you’re in the neighborhood today, by all means stop in. Have a crab salad sandwich.
As I usually do, when the film ended I stayed to the end of the credits, and not surprisingly, the producers acknowledged the cooperation and/or permission of all sorts of third parties whose material appears incidentally in the film. But there was no acknowledgement of Fenton’s. Piracy? Homage? An inside reference? You be the judge. Well, don’t: It’s approved product-placement-as-homage, which you can contrast with more subtle un-approved product-placement-as-homage — the hamburger cake produced by Oakland’s legendary Merritt Bakery — that appears elsewhere in the same film.
Permission to use the name and sign of the ice cream store, but no permission obtained to reference the bakery? Are there rules here? (“Rules? In a knife fight?“) When is a thing sufficiently public (colloquially, on some fuzzy sliding scale, or more technically, under trademark law) that even the industry’s bend-over-backwards-to-clear-rights way of doing business will look the other way? Sometimes even courtesy and industry custom give way; the thing is simply there for the use or the taking.
To be sure, the Fenton’s reference is far more salient and recognizable than the Merritt Bakery reference, but homage is homage, and if the filmmakers were trying to do the right thing when they called Fenton’s, why not do the same with the Merritt?
We might analogize this to the public goods problem that provides a standard point of reference in justifications of much intellectual property law: “Public” goods will be undersupplied in the absence of some market intervention — usually proprietary rights or government subsidies, or both — that assures that producers of the goods can recover their costs. But sometimes, “public” goods get supplied all the same, without being wrapped in proprietary rights or government subsidies — or industry norms — because there are plenty of ways for producers of related goods (and services) to recover costs and make a living. That’s an opportunity to drop in this quotation from the same recent New Yorker piece about watchmakers that I mentioned recently in the context of private legal systems. “Time is free. Why should you pay for it?” asked the watchmaker, rhetorically.
The point being that “time” is a public good only in the sense that we treat it as such. Public goods, like other things, are created by us, given various attributes of law, technology, and, as in the case of the Merritt Bakery and Up, by practice. Remove clocks from public places and public services — as AT&T withdrew its free telephonic “time of day” service on the West Coast a couple of years ago — and time’s up. (Save for those who can derive to-the-minute time by watching the sun.) Check your watch, if you still wear one, or your relevant portable digital device, but now you’re paying for what’s “free,” in an abstract sense.
This doesn’t solve the tiny puzzle that piqued my interest in Up; it only shows that the tiny puzzle is emblematic of a problem that all of us — not just IP lawyers dealing with the collapse of the newspaper industry, or the music industry, etc. etc. — deal with all the time. And we, and the institutions around us, manage that problem just fine — sometimes muddling through, sometimes achieving spectacular results. Somewhere out there, someone may be willing to pay more than $1 million for a watch. Some of the rest of us are satisfied (smug, even) believing that we’re insiders in a game of cultural cross-references. IP law, related rules, and those who interpret them sort out most of the rest. The distribution of wealth evolves; the sun will come up tomorrow, and both Fenton’s and the Merritt will still be there.
I wear a Timex, as it happens, but otherwise I’m out of time. The end of my guest month arrived more quickly than I expected; family duties, and other opportunities of summer, beckon too soon for me to linger longer. Thanks again to Dan and the gang for the invitation to hang out here for a little while. Sometime, I hope to get the chance to come back. In the meantime, you can find me at madisonian.net (for law stuff) and Pittsblog (for stuff about the host of the next G20 summit). As a minor Pittsburgh-born celebrity used to say, I am outta here.
May 29, 2009 at 8:36 pm
Tags: fenton's, merritt bakery, public goods, time, up
Posted in: Intellectual Property
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Responses (2)
A.J. Sutter - May 30, 2009 at 8:14 am
I’ve been an IP practitioner for 20+ years, admittedly without ever needing to resort to the theory of public goods for my billable work, but I did not understand the point of this post. It seems to me that “Fenton’s” is probably a trade mark, at least under a common law theory, whereas the hamburger cake is just a product, probably not protected under a valid design patent. If I were Disney’s lawyer I would have made the same call. Sorry to say I think this is a case of economic theory, abetted by a hyperactive literary style, making the simple seem much more difficult.
Mike Madison - May 30, 2009 at 9:47 am
It’s the practicing lawyer’s job to make the difficult seem simple; if you’re Disney’s lawyer, clearing the rights to Fenton’s and not to the hamburger cake (which I’d characterize as arugably distinctive, non-functional trade dress, if I wanted to be really, really conservative) is a simple call. Not clearing the rights to either one would be a simple call, too. After all, it’s Disney. Fenton’s might have complained, and Disney could have stuffed it up their Dug. That’s the knife fight; Disney is Butch, and Fenton’s or the Merrit is Harvey. (Take your pick.)
But the scope of what’s a protected mark isn’t supposed to be measured by a practicing lawyer; it’s supposed to be measured by the consuming public. That’s the little paradox in Up. The public is supposed to decide what’s owned and not, in trademark terms. The lawyers and the filmmakers are proxies, and arguably they are poor ones.
In copyright and patent doctrine, what the public thinks about what’s protected doesn’t matter so much. (It does sometimes — scenes a faire in copyright; identifying abstract ideas and products of nature in patent — but infrequently.) Instead, public goods theory suggests that some things should be protected; doctrine tends to follow. The paradox in copyright and patent is that there are some pretty obvious examples of (theoretical) public goods that aren’t protected by IP rights, and no one is worse off. That’s the little paradox of time and watches. If copyright and patent law are supposed to be solving public goods problems, then arguably they’re doing a bad — or at least sometimes unnecessary — job.
The point of the post is that these two themes are connected, and it’s interesting to kick around how that might be so. What’s public, when, and why?
As for the literary style, for better or worse I plead guilty. I had enough stifling linearity in 9 years of practice to judge when it’s needed, and when it’s merely dull.
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