December 26, 2007


Creative vigilantes: Magicians, chefs, and stand-up comics protect their creations without the law. What they can teach lawyers - and Congress - about the future of intellectual property. (Daniel B. Smith, December 23, 2007, Boston Globe)

LAST FEBRUARY, JOE ROGAN, the beefy host of the gross-out extravaganza "Fear Factor," got on the stage at the Los Angeles club The Comedy Store and unleashed a tirade against the comedian Carlos Mencia, who sat beside him on a stool, angrily protesting. According to Rogan, Mencia had been stealing other comedians' material for years, and the only way to stop him was by making his habits widely known. This Rogan did his best to achieve; shortly thereafter, he posted a video of the exchange - liberally peppered with indecencies and spliced with supporting material - on his website. From there it spread quickly over the Internet.

For most people who caught the Rogan-Mencia incident, it was little more than a minor entertainment - another B-celebrity dust-up. But for the legal scholar Christopher Sprigman, it was clear and hitherto ignored evidence that the country's recent approach to intellectual-property law has been wrongheaded.

Over the past 15 years, the rise of digital technology and the global economy has made it ever easier to copy, distribute, and profit from the fruits of other people's creativity - from the new Fergie album spreading across peer-to-peer networks to pirated "Spider-Man" DVDs showing up on the streets of Shanghai. In response, American lawmakers have instituted increasingly sweeping laws, seeking to stymie intellectual-property theft with lengthier copyright terms and more stringent consequences for violators. Without these measures, they reason, innovators will lose money, and innovation will suffer.

In something as simple as the public outcry of a Hollywood jokester, Sprigman, an associate professor of law at the University of Virginia, sees an approach that he hopes could put the lie to this thinking, and turn the heads of lawmakers. many of the folk who object to intellectual property rights are also the most offended by Kelo?

Posted by Orrin Judd at December 26, 2007 6:59 AM

There's a lot to be desired in that article.

The examples given seem to fall into two classes: ephemeral fads (cooking, fashion) and guilds (magicians). And in both cases (and including the comedians), trademarks and "name-brands" are also important, too. You don't need legal protection when your property is going to be worthless in a few months anyhow.

The "persona" as protection for comedians is nothing new, just ask W.C. Fields or Groucho Marx or any of the other lesser character actors of the 30s and 40s.

There's also an emphasis in the article on the well established (Madonna?) and how they protect their position from encroachment. I'd like to see how those models would be extended into other areas and protect and help those in the middle of the distribution, not on the tail.

Posted by: Raoul Ortega at December 26, 2007 10:55 AM

Considering that Carlos Mencia is still doing gigs, the "shaming" idea is useless if the person stealing your act has no shame (and thus can't be embarassed).

If it seems like the pro-copying folks are the most anti-Kelo among us, it's probably because they're just mad they couldn't sponge off the developer's deals.

Posted by: Brad S at December 26, 2007 11:31 AM

Orrin would certainly have a point if there had been any art actually produced during the "copyright" era of the twentieth century.

The only place you can find anything from that dustbin of history is on the "copyright" destroying phenomena called YouTube. And who knows where Britannica will be once Wikipedia completely takes over?

The best movies of the 20th century are mouldering away in some vault because no one knows who owns them. Instead we get Star Wars reissues? DIGITAL!!!! NEWLY COMPRESSED EAR-SPLITTING SOUND!!!

Art needs benefactors, not investors.

Posted by: Randall Voth at December 27, 2007 4:59 AM


Posted by: oj at December 27, 2007 3:42 PM