Eleven years ago at the blog

Also a Monday...

This post reminded me of a 1970 review (actually just the first sentence) by Roger Greenspun of a film that popped up a while back on Fox/Weigel's excellent terrestrial superstation, Movies! [emphasis added]

Paul Williams's "Out of It" opened yesterday at the Festival Theater, but it was made in 1967, according to the distributor, and it looks and feels just a bit older—say 1963—even allowing for South Shore cultural lag.

American film was evolving at a tremendous rate in the late 60s and early 70s, significantly enough that it seemed reasonable to distinguish between films made four years apart. Imagine a critic today saying a picture was made in 2018 but the style and sensibility seemed more like 2014.

MONDAY, JUNE 21, 2010

Effect and cause: Hollywood edition

From New York Magazine:

How Toy Story 3 Scored: Even though the kiddies all clap their palms raw whenever that silly cyclops of a desk lamp hops out to squash the "I" in "Pixar," Disney still faced a conundrum: Those tykes who were in first grade when Toy Story first hit theaters in 1995 are now seniors in college.

However, instead of writing off the twentysomethings as too jaded to come, the studio targeted them, knowing that the Woody/Buzz bond was ageless. "Pixar went out of their way to ground the movie in the idea that the character [Andy who] you knew as a kid was now off to college," explained David Sameth, Disney's senior VP of marketing, "It’s only natural to pick up the same idea in marketing, and translate it into our terms." That meant courting the keg-stand-performing college kids directly: In the run-up to TS3's release, Disney sponsored a special "college cliff-hanger campaign," screening two-thirds of the finished film for undergrads at some 80 colleges nationwide, which kicked off the positive buzz from the Twitter set. The studio also crafted a viral YouTube campaign — fake period ads for one of the movie's new additions, Lots-o-Huggin' Bear — that is still being discovered.

Helped by a 100% favorable rating on RottenTomatoes.com, not only did those former grade schoolers come running back to make this Pixar's top-grossing opener ever (helped by 3D pricing), but so did everyone else: Its audience was 46% over the age of 25, and roughly equally distributed between males and females. Who went? With 4,000 plus theaters showing it, "Everybody," said Chuck Viane, Disney's distribution chief. But what about "franchise fatigue" and all that? Says Disney's Sameth, "People don't go to see franchises; they go to see movies. This is a great one."

I'll buy that last part. I haven't seen the film yet but based on the reviews, the talent and most importantly, the standard of work from Pixar, I will be surprised to see anything less than excellence.

I would also have been surprised to see the picture fail to bring in dump trucks of money. This kind of long-awaited sequel tends to do well (think of how many people went to see Harrison Ford hobble around in Crystal Skull or George Lucas burn off what remained of his legacy in Phantom Menace). Pixar films also tend to bring in big money (Up grossed nearly three quarters of a billion worldwide). Add to that the fact that after three films built around gifted but non-bankable character actors (Oswald, Asner, Plummer) and uncomfortable themes (rats preparing food; the destruction of the environment; old age, loneliness, and even miscarriage), Pixar played this one safe with a big star in the lead and familiar thematic territory. It is probably the least adventurous film from the studio since, well, Toy Story 2.

Given all this and the significant traditional media marketing, there is no evidence here that targeting college students brought in anyone who wouldn't have seen the film anyway. This type of alternative, targeted marketing can be highly effective for movies and other products you might not have otherwise heard of (Kick-Ass, Defendor, OSS 117 would all be reasonable choices). The techniques are much less effective for well-publicized films and they aren't scalable; a good twitter/viral video campaign can push a small film into wider release which can take you from a gross of five million to ten or twenty million, but when you're talking about opening in thousands of theatres and having to gross two hundred million just to break even, this kind of non-traditional marketing is usually a waste of time.

But the entertainment industry loves to tell itself these stories: marketing to twenty-somethings helped make Toy Story 3 a hit; the Hangover shows that people want gross out gags and Apatow-style humor; Electra, Catwoman and Charlie's Angels II all bombed because they were female superhero movies with dark themes. None of these stories stand up to any scrutiny. All can be replaced by more credible explanations (usually starting with the quality of the script). But the industry still embraces these unbelievable accounts because of what they say about replication and risk.

William Goldman famously observed that when it comes to how well a movie is going to do "Nobody knows anything." That's not quite true. There is an optimal strategy: start with a strong script; keep people (particularly studio executives) away from it as much as possible; hire a competent director and a cast of good actors who fit their roles; provide an adequate marketing campaign that gives the potential audience an accurate impression of the film.

As straightforward as this may seem, this strategy gives little comfort to people in the industry for two reasons.

First, this is difficult to replicate on a large scale. There are writers who can turn out strong scripts (Goldman being the most obvious example) but they are hard to find and can take a long time to cultivate. To put together a team comparable to what Pixar has is a monumental task.

Second (and this is where Goldman's observation really kicks in), there is a great deal of unpredictability in the system. Sometimes film-makers will do everything right and the film will just fail to gel artistically. Other times a film will come out perfect but for some reason won't get the reception it deserves.

This need to find a comforting explanation for success and failure is not limited to Hollywood. Many if not most companies spend a great deal of time retroactively assigning causes to major successes and failures. There is usually little empirical evidence at work and quite a bit of politics and score settling, but even the most dubious of explanations have a way of making it into the official unofficial history.

For years (perhaps even to this very day), executives at McDonald's would tell you with absolute certainly that the deluxe line failed not because it was based on over-hyped, under-impressive menu items but because the ads showed Ronald playing golf.

Flying cars are still out of range

In the movie Thunderball (FRWL>GF>IHMSS>DN>YOLT>TB, but we'll talk about that later), possibly the most memorable/memorably stupid moment occurs when Bond, with gunmen in hot pursuit, stops to strap on a conveniently stashed Bell Rocket Belt and (through the magic of doubling) really flies a hundred yards or so. This doesn't allow him to escape (it actually diminishes his lead) but it is unquestionably cool.

While on the subject of range, let's pick up where we left off with the NYT's recent flying car article. 

Mr. Leng’s company, Opener, is building a single-person aircraft for use in rural areas — essentially a private flying car for the rich — that could start selling this year. Others are building larger vehicles they hope to deploy as city air taxis as soon as 2024 — an Uber for the skies. Some are designing vehicles that can fly without a pilot.
...

BlackFly is classified by the government as an experimental “ultralight” vehicle, so it does not need regulatory approval before being sold. But an ultralight also cannot be flown over cities or other bustling areas.

As it works to ensure the vehicle is safe, Opener does most of its testing without anyone riding in the aircraft. But the idea is that a person will sit in the cockpit and pilot the aircraft solo over rural areas. Buyers can learn to fly via virtual reality simulations, and the aircraft will include autopilot services like a “return to home” button that lands the plane on command.

It has enough room for a six foot, six-inch person, and it can fly for about 25 miles without recharging. The few Opener employees who have flown it describe an exhilarating rush, like driving a Tesla through the sky — an analogy that will not be lost on the company’s target customer.

No special expertise here so feel free to jump if I stumble but the 25 mile number really stands out. It's a very small distance, even as the crow flies, particularly for a rural area, but it gets worse.

You can't simply pick a destination in a circle with a 25 mile radius.  With any kind of aircraft, you need a cushion to allow for headwinds and unforeseen delays. Just to keep the numbers round, let's knock off ten miles for a fifteen mile safe range.

And just because a destination is safe doesn't make it practical. Without a fast charging option when you get there, you need to leave enough electrons in the tank to get back home. That limits you to 7 mile trips. Even with fast charging, the ratio of plugged-in time to flight time is ridiculous. 

To be clear, BlackFly is no doubt a fun ride and there's probably a market based on that alone, but as a form of transportation, it's about as serious as a water slide. 

This is not nascent technology, rich with potential approaches and possible breakthroughs. Though there has been considerable incremental progress, there doesn't appear to have been any revolutionary advances in the past five or so years, certainly nothing substantial enough to make this kind of personal electric VTOL craft viable. There is nothing on the horizon that would resolve the issues with range, or for that matter with public safety or air traffic control or noise.

This remains cool but impractical tech, and if that's what you're looking for, you might as well stick with the jet pack. 

Aducanumab

This is Joseph. 

Thomas Lumley has a nice piece on the newly approved biologic for treating Alzheimer's Disease:

The drug (or, technically, the ‘biologic’ since it’s an antibody) has been through a lot of ups and downs in its clinical trial history.  There were two main trials that were supposed to show it was effective. They failed. A re-analysis of one of them suggested that it might actually work, at least for some patients. Normally, this would be the cue to do a confirmatory trial to see if it does actually help an identifiable group of people. And the FDA did mandate this trial — but they will let the manufacturer sell and promote the medication for nine years while the trial goes on.  Given that the the market for aducanumab is conservatively estimated at tens of millions of dollars per day, and there’s only a possible downside to getting trial results, the trial is unlikely to end a day sooner than it has to; it’s not unheard of for these post-approval trials to just never recruit enough participants and drag on longer than ‘allowed’.

 While this is a very cynical take, it is clear that the treatment is high burden (given intravenously), expensive ($56,000 USD/year), and with a lot of side effects. There is obviously a huge incentive for the trial results to be generated as quickly as possible, as if the drug is not effective then there are huge costs in money and side effects to be considered. 

What is so puzzling about this decision is that it follows the recent responsible approach to covid-19 vaccines. One can argue whether the FDA was too conservative with vaccines in the face of a pandemic, but it did a great job in approving effective and safe vaccine products. But this is a treatment where the sponsor ended the trials early for lack of efficacy, which is not generally seen as a clear vote of confidence in a product. Even if the treatment post-hoc analysis was right by good fortune, the effect size is quite small, which is a big deal for extremely expensive treatments and requires some careful technology assessment work to decide how to handle this treatment. 

So while Thomas Lumley is cynical here, I think it is worth considering these points very carefully as a part of any medical system, US or other. 

Judges and politics

This is Joseph.

The question of whether Stephen Breyer should retire back in the news because a prominent congresswomen has opined on the issue. It seems that the reason he is reluctant is that he thinks a retirement now would look political. This is absurd.

Let us look at the sequence of the last several SCOTUS judges (dates from wikipedia):

February 13, 2016: Justice Scalia dies

March 16, 2016: Merrick Garland is nominated by a Democratic president

April 10, 2017: Justice Gorsuch replaces Scalia, nominated by a Republican president

July 31, 2018: Justice Kennedy retires and is replaced by a Republican president

September 18, 2020: Justice Ginsberg dies

October 27, 2020: Justice Barrett replaces Ginsberg, nominated by a Republican president

So you already have a norm-breaking hold (election year?), a strategic retirement, and then a actual super-fast replacement. Then you get this where the Republican senate leader threatens to block a nominee in 2024 (or even 2023) if the Republicans are in the majority. 

Now I am not a court expert but I would say that this pattern of facts suggests that it is way too late to avoid a SCOTUS retirement being political. Now if you think that the issues in front of the court have no political weight then maybe it is ok that only Republicans get to nominate supreme court judges. But the ratio of R to D nominees is 6 (mean age 60) to 3 (mean age 70). Now look at some of the cases coming, including abortion, a right to concealed carry, affirmative action in higher education, the affordable care act, and voting rights. There are some key items of current policy debate that would be best solved with a balanced court. The traditional 5-4 balance was a good place to be, even if there was a tilt in one direction. 

But the senior Democratic appointed justice, an 82 year old, is likely to have a limited number of chances to retire with both a Democratic President and a Democratic senate majority. If we take the Republicans at their word and the last five years of actions, these are the only conditions that a Democrat appointed justice would seem to be able to occur.

We can discuss whether it is good that the SCOTUS system has become heavily politicized but a refusal to retire isn't going to help (ask about how that worked out for Justice Ginsberg). Now there could be other reasons not to retire (enjoying one's job) but trying to increase civic virtue in terms of nominations seems odd. 

Some context for the thread

I just learned that David Graeber passed away last year. Looking back over his Baffler piece, I'm kicking myself for not quoting it more often.

SATURDAY, JANUARY 5, 2013

You want flying cars? I'll give you flying cars

As mentioned before, I'm a fan of David Graeber's recent essay, "Of Flying Cars and the Declining Rate of Profit" but I really dislike the title.  Flying cars have become the go-to cliche when discussing underperforming technological progress. On top of that, they have a slightly goofy quality and often come with the at least the implication that no one serious ever actually believed this stuff.

The last part is especially unfortunate because for most of the Twentieth Century, personal aviation was seen as something very close that was going to be very big. Exactly which technology (flying cars, personal planes, and, in the post-war era, jet-packs) would come to dominate was an open question, but serious people believed that flying would become very much like driving for things like commuting and they were willing to back up that belief with money and research.

I n 1933 the U. S. government spent half a million dollars to produce a ‘poor man’s airplane through the efforts of Eugene Vidal, promising a 2-3 seat, all metal aircraft costing $700 (the approximate price of a nice car and considerably less than any aircraft). While this effort was not embraced by the aircraft manufacturers of the time and portrayed as “an all mental aircraft”, the idea was enthusiastically greeted by the public. A direct result of this research was the Erco Ercoupe, which achieved new levels of ease of use, along with a spin-proof, safe stalling, smallfield capable, inexpensive aircraft. T.P. Wright, the Administrator of Civil Aeronautics, wrote an extensive review of NACA small aircraft efforts to “meet the needs of the family”. “When the market for all other types of planes is grouped it is apparent that what may be termed a really large industry, and one having an important effect on national economy, will not be provided. Of course the market for military aircraft will for a long time represent possibly the most important field in aircraft development and manufacture. However, even considering this with the others it can readily be seen that, developed to an adequate extent, the personal aircraft can easily become the most important factor in the aircraft industry. Used both for business and pleasure it is here only that an almost limitless potential market is available.”

Vidal was so committed that he even used his young son to demonstrate (at least briefly) how safe and easy flying these aircraft could be.

Gore Vidal, born Eugene Luther Gore Vidal Jr. on Oct. 3, 1925, in West Point, N.Y., was the only child of First Lieutenant Eugene Luther Vidal and Nina Gore, a socialite. His father was the first aeronautics instructor of the U.S. Military Academy and later the director of the Commerce Department's Bureau of Air Commerce during the Roosevelt Administration. Vidal's father had so much faith in the Hammond flivver-type plane that he sent 10-year-old Gore aloft to fly it. Vidal is pictured at the controls before takeoff. 

The flying car starts looking a bit less goofy in this context. Personal aircraft were soon supposed to be common. Neighborhoods would have their own airstrips. The idea of an airplane that was easily transportable and could double as a family automobile had obvious appeal.

By the Forties, these ideas had even reached the prototype stage

Taylor's design of a roadable aircraft dates back to 1946 [first flight 1949]. During a trip to Delaware, he met inventor Robert E. Fulton, Jr., who had designed an earlier roadable airplane, the Airphibian. Taylor recognized that the detachable wings of Fulton’s design would be better replaced by folding wings. His prototype Aerocar utilized folding wings that allowed the road vehicle to be converted into flight mode in five minutes by one person. When the rear license plate was flipped up, the operator could connect the propeller shaft and attach a pusher propeller. The same engine drives the front wheels through a three-speed manual transmission. When operated as an aircraft, the road transmission is simply left in neutral (though backing up during taxiing is possible by using reverse gear.) On the road, the wings and tail unit were designed to be towed behind the vehicle. Aerocars can drive up to 60 miles per hour and have a top airspeed of 110 miles per hour.

Mid-century Americans had every reason to have high expectations for this type technology. The past fifty years had seen far cruder prototypes of technology such as the car, airplane and helicopter develop into impressive and commercially viable machines. With the Depression and the war out of the way, there was every reason to believe that the turn-around time from early working model to full production would only get faster. If they could build one jet pack today, surely they could have the bugs worked out in a year or two.




That's a Bell Rocket Belt, in case you're curious.

We could argue about exactly why personal aviation never grew beyond the small niche it has occupied for the past few decades, but there's no question that a time traveler from fifty years ago would be surprised at our lack of progress in this area.

Nor do we have a lot of progress to report in the rest of transportation. I'm still not sure how to explain why we actually regressed in terms of transatlantic travel speeds from what we were doing thirty years ago.

‘Uber Meets Tesla in the Air’ -- hopefully not in an "autopilot" malfunction sense

Slightly over one hundred years ago, some unknown reporter wrote the first "Here comes the flying car story." That story has been dusted off ever three to five years since, usually with only minimal changes. By now I'd imagine that the New York Times has some sort of a template so that the latest journalists covering the beat, Cade Metz and Erin Griffith in this case, only have to plug in the names and buzzwords.

In fairness, there is one innovation that helped advance this latest round of personal VTOL companies, but we'll talk about that in a minute.  [Emphasis added]

It has enough room for a six foot, six-inch person, and it can fly for about 25 miles without recharging [We'll be coming back to this one. -- MP]. The few Opener employees who have flown it describe an exhilarating rush, like driving a Tesla through the sky — an analogy that will not be lost on the company’s target customer. [The comparison doesn't make a lot of sense -- you'd expect flying a personal aircraft to be far more exciting than driving a sedan -- but these people REALLY want to connect with the Musk brand. -- MP]

Mr. Leng sees all this as a step toward the starry future envisioned by “The Jetsons,” [cheesy sci-fi reference... check -- MP] the classic cartoon in which flying cars are commonplace. “I have always had a dream that we could have unfettered three-dimensional freedom like a bird does — that we can take off and just fly around,” he said.

...

There is also the noise factor, a crucial selling point over loud combustion engine helicopters. Sitting a few hundred feet from the vehicle, Mr. Thrun boasted about how quiet the aircraft was, but when it took off, he had no choice but to stop talking. He could not be heard over the whir of the rotors. 

Even so, Mr. Thrun says Kitty Hawk will build an Uber-like ride-hailing service, in part, because of simple economics. Heaviside is even more expensive than BlackFly; Mr. Thrun said it costs around $300,000 to manufacture. But with a ride-hailing service, companies can spread the cost across many riders. [Not a great analogy since ride-hailing services are are based on people already owning their vehicles -- MP]

Like BlackFly, Heaviside offers only one seat — and that seat is a tight fit, even for the average-sized person. But a future version will offer a second seat and fly on its own, allowing it to carry two passengers. By mass-producing a two-seat aircraft and sharing the vehicle among many riders, Mr. Thrun said, the company can eventually get the cost per mile down to a level that is on par with today’s automobiles.  

...

Many believe this is how flying cars will ultimately operate: as a taxi, without a pilot. In the long run, they argue, finding and paying pilots would be far too expensive. 

...

To aid in these plans, it has partnered with Toyota to manufacture aircraft and acquired Uber Elevate, the air taxi project Mr. Moore helped create inside the ride-hailing giant. In the coming months, Joby plans to merge with a special purpose acquisition company, or SPAC [and there it is -- MP], that will take it public at a $6.6 billion valuation. Two other companies, California-based Archer and Germany-based Lilium, have struck similar deals.

The SPAC deals allow the companies to advertise ambitious business projections, something the Securities and Exchange Commission otherwise prohibits in initial public offerings. In an investor presentation, Joby touted a trillion-dollar market opportunity.

If you haven't been following the financial section closely, SPACs are the motherlode of dumb money. Even with the old IPOs, we saw investors willing to back numerous multi-billion dollar companies that lose money on every transaction but promise to make it up in volume. Now things are really taking off.

Weekend videos: tortured artists and critical musings

Andrew Gelman's recent post on Phillip Roth opened up a conversation about art coming from creators who were so often horrible people and tortured souls. That got me thinking about the pros and cons of suffering for one's art.




The voices are by Carl Reiner. A couple of years later, the director would collaborate with Reiner's best friend on a similar piece. 

The film was reportedly inspired by an actual incident. In 1962 Mel Brooks attended a screening of an animated short by Norman McLaren. It featured surrealistic, abstract imagery. During the screening of this short, Brooks overheard another audience member "mumbling to himself", an old immigrant man who was voicing his disappointment at the lack of a plot. Brooks was inspired to create a film out of this experience.

Brooks contacted Ernest Pintoff, who had experience producing animated works such as Flebus.[4] They agreed to create a short film based on two points: the visuals of the film had to be fashioned in a style similar to that of McLaren, and Brooks would have no specific warning of the content. He intended to improvise his monologue. Pintoff and animator Bob Heath completed the visuals as agreed, then Brooks watched the result and improvised his monologue for the accompanying soundtrack.  

p.s. Also glad to hear that Richard Burton comes off well in Bloom's autobiography. Burton's a favorite actor of mine and I've always had a positive impression of him as a person as well. If you're interested, this Cavett interview is highly recommended. 

Years later, Cavett passed along one of the great Burton anecdotes:

A much-missed friend, the late and wonderful Jerry Orbach, best known as Detective Lennie Briscoe for so many years on “Law & Order,” is a main player in the story.

Jerry and his wife had just come to New York, hoping to “make it” in the big time and the Big Apple. It was before Jerry got his break in “The Fantasticks,” from which all followed.

The Orbachs were invited to a party in Manhattan and, virtually on their way there, learned that it was a birthday party — to their distress, since buying any sort of present would tax their meager holdings.

Passing a sort of novelty store, Jerry’s wife, Marta, spotted an inexpensive but decent-looking small kaleidoscope. “We’ll tie a ribbon around it,” she said, “and let it be our present.”

Arriving at the party, they noticed that the assembled guests included quite a few theater notables, including — to their amazement — Richard Burton, the birthday boy himself. He was starring in “Time Remembered” on Broadway, with Susan Strasberg and Helen Hayes. Susan was at the party.

The Orbachs submitted their present and passed into the kitchen in time to catch a scene out of soap-fiction.

A half-dozen women had Susan surrounded and were berating her vehemently with such dialogue as “You’re ruining your life” and “You’re mortgaging your future happiness.” The subject: her current affair, while still in her teens, with an “older, philandering, womanizing, married man.”

The birthday boy.

While she was absorbing these presumably — or shall we say, possibly — well-meant and (just possibly) jealousy-inspired psychological body-blows, the villain himself entered the kitchen.

He began a brief but eloquent monologue, beginning, I would guess, with something like, “Jerry, I fear it it may exceed my verbal capacities to sufficiently thank you for your thoughtful, marvelous gift.”

The room fell silent, as it usually did when the Welsh organ tones began to sound, and Richard went on to say that he had never had or held a kaleidoscope before. You’ll have to imagine the spontaneous poeticism, lost to the ages, as he compared the colored-glass-filled instrument to life itself, in its constant, changing, variety; its unexpected, startling delights, its ability to — like life itself — dazzle and surprise in its random, colorful spectacle, etc., etc.

No kaleidoscope ever had it so good.

The kitchen occupants stood rooted and mesmerized, the female berating team as breathless and taken as everyone else. Richard finished and exited, as Susan said, “And that’s just the talk.”

Parody is a protected form of free speech as long as it isn't too good

With IP law, you know in advance that the big boys are heavily favored to win. The suspense is in the legal twists and turns getting there.

From Terence Chua's thesis, "Messing with the Mouse."

In 1971, Disney sued a group of underground comic artists calling themselves the Air Pirates, who published two comics portraying Walt Disney characters in sex and drug-related situations. The resulting case lasted 8 years and ended in a settlement where both sides claimed victory. This thesis uses the case to examine the development of the law of copyright and parody as a defense and demonstrate that the court tends to rule against the parodist if the work is offensive or obscene, although these are irrelevant concerns. It also examines the case itself and the cultural and personal forces motivating the parody.

O'Neill's affidavit was positively lyrical in justifying the artistic reasons behind Air Pirates Funnies, but it contained language that ultimately proved damaging to the Air Pirates' arguments. O'Neill stated that he drew cartoons to "relieve a basic human anxiety pattern, hysteria," by means of laughter. Mickey Mouse, he deposed, had started as a positive image, but as people grew older, it became a "non-positive adjective." To investigate why it had degenerated, O'Neill said he "chose to parody exactly the style of drawing and characters to evoke the response created by Disney (emphasis in original)."
...

[From here on, all emphasis added]

The Ninth Circuit delivered its 15-page decision on September 5, 1978, ruling three to zero against the Air Pirates on the charges of copyright infringement. Judge Walter J. Cummings, a sixty-year-old former Assistant United States Solicitor General and former partner in a Chicago-based law firm appointed to the bench by Johnson, penned the judgment. ... Cummings then considered fair use as a defense. He noted that the Pirates were not saying that the copying was not substantial enough to be infringing, merely that the infringement was defensible as an example of parody and thus fair use. Noting that Loew's case was the legal standard, the court found that Wollenberg's test of "substantial copying, combined with the fact that the portion copied constituted a substantial part of the defendant's work" that "automatically precluded the fair use doctrine" was unjustified. Such a reading would make any defense of fair use untenable, and would lead to a gap where a substantial amount was taken but not a substantial part of the defendant's work. Loew's was more properly read as "setting a threshold that eliminates from the fair use doctrine copying that is virtually verbatim," as in Jack Benny's burlesque of Gaslight. Loew's, in other words, was the upper limit to tell what was definitely not fair use. In the absence of "near-verbatim copying", the test would be Berlin's, as in whether the parodist had taken up more than was needed to "recall or conjure" the original.

The Ninth Circuit decided that the Pirates had done more than was needed. Ironically, the ubiquitous presence of Disney's characters in popular culture that made them such attractive targets was precisely why the Pirates had gone too far. Cummings wrote, "Given the widespread public recognition of the major characters involved here... very little would have been necessary to place Mickey Mouse and his image in the minds of the readers." He noted that Pirates did not parody how the characters looked, but their "personalities, their wholesomeness and their innocence." The Pirates would therefore have had a better argument if they had "paralleled... Disney characters and their actions in a manner that conjured up the particular elements of the innocence of the characters to be satirized... Here, the copying of the graphic image appears to have no other purpose than to track Disney's work... as closely as possible." Cummings dismissed the Pirates' arguments that they had to copy Disney exactly to make their point effectively. They were entitled to parody, but they were not entitled to the "best parody" they could make – that consideration had to be balanced with the rights of the copyright owner, and the Pirates had exceeded what was "necessary to place firmly in the reader's mind the parodied work and those specific attributes that are to be satirized." Because of this, Wollenberg's granting of summary judgment on copyright infringement was proper.

...

"Communiqué #1" goes on to criticize the Ninth Circuit's decision in the Air Pirates case as being too vague. Misidentifying the Ninth Circuit as the "Supreme145 Court", O'Neill quotes the court as saying that the Pirates had taken too much of the original when effecting their parody. Although "'some' says the Court, is OK... no one, including the Court, is sure how much is 'some'..." O'Neill juxtaposed this with a drawing of Mickey's head on a realistic rat's body, its tail curled around a sign that says, "Is this some?" Minnie also points to her gloved hand – which has five fingers instead of the usual cartoon four – with a caption, "Is this some?"

Something about the "best parody" section seems particularly off. It was not the juvenile and deliberately offensive attempts to shock that did the Air Pirates in but the loving homage. Though there was little that could be called copying -- only a few of the images call back directly to the source material --  O'Neill and friends beautifully captured the style and the sensibility of the original Gottfredson strips. 

One of the many ironies of this case is that had the artistic quality of the parody been worse, the defendants' legal case would have been stronger,

And that doesn't seem right. 

I'm guessing Dwyer had the complete set of Wacky Packages stickers

If you're the type of person who would enjoy reading an unpublished master's thesis on parody and copyright, "Messing with the Mouse" by Terence Chua is definitely the one you'd want to read. The main focus is on the conflict between the Disney corporation and a collective of underground comix artists called the Air Pirates (and it's a hell of a story), but it also covers most of the other notable cases that established and severely limited the copyright exemption of art that mocks art.

The resolution of the Starbucks "Consumer Whore" case is particularly relevant. [Emphasis added.]

In 1998, comic book artist Kieron Dwyer created a parody of the Starbuck's Coffee mermaid logo, portraying the mermaid as bare-breasted, holding a cellular phone and a cup of coffee, with "prominent nipples and a navel ring." In place of the "Starbucks Coffee" legend with stars, it had "Consumer Whore" and dollar signs. The "Consumer Whore" parody was only one of a number of parodies that Dwyer had done, including Pokemon, ("Tokemon"), Evian water ("Elian", after the Cuban cause célèbre) and a Microsoft hand icon with the middle finger raised. Dwyer sold T-shirts and stickers with the parody logo through his web site, justifying it by saying that it captured the "crass, rampant commercialism in this country."

Starbuck filed suit in April 1999, getting a temporary restraining order and moving for a preliminary injunction and demanding all T-shirt profits plus damages. Dwyer commented that it was like "carpet-bombing an anthill." Starbucks claimed copyright infringement, trademark infringement and unfair competition. Dwyer's parody made Starbuck's corporate logo "sexually offensive to a substantial portion of the public" and associated it with "conduct that many consumers will find lewd, immoral and unacceptable." It was Air Pirates all over again.

Judge Maxine M. Chesney of the California District Court heard Starbucks' counsel John C. Rawls cite a long line of cases involving "tarnishment" of trademarks, including "Genital Electric", "Buttweiser" and "Gucci Goo" diaper bags, all which were ruled to have degraded the trade marks of the respective companies. On the strength of this, Chesney granted the preliminary injunction, and in June after hearing oral arguments from both sides, made the injunction permanent. However, this order was not made on the basis of unfair use – Chesney found both fair use for Dwyer's parody and lack of market confusion ruling out trademark infringement. However (echoes of Pillsbury), she found that Dwyer's commercial use of the parody by selling T-shirts and stickers violated California's trademark dilution laws. Dwyer was therefore in the strange position of having a legitimate parody but not allowed to display it. Both sides considered it a victory – something that the parties in the Air Pirates case also ultimately did.
...

Unlike O'Neill, Dwyer did not appeal the case up to the Ninth Circuit, but settled with Starbucks soon after. According to Dwyer, "In our private meetings with the judge, she agreed that Starbucks was overreaching, but she clarified things for me. In essence, she confirmed that the legal system is tilted in favor of Starbucks and every company like it. They can and will tie you up in litigation as long as they want, she said, and maybe you’ll win in the end, but it will cost you a lot of time and money to find out. You may be right, but how much does it matter to you to be the fly in Starbucks’ ointment? Can you walk away from it?" Dwyer took Chesney's advice and walked away, settling for undisclosed terms. One of those terms, however, was definitely not to display the logo again, as it appears nowhere on Dwyer's site.

Who's afraid of the big bad wolf's big bad lawyers?

Gelman got us thinking about fair use and Disney's aggressive approach to IP.

[Picture restored from dead link.]

TUESDAY, SEPTEMBER 21, 2010

Alice in Lawyerland: would the laws Disney lobbied for have prevented Disney from existing in the first place?

(disclaimer: I have cashed a number of royalties checks over the years so the following is obviously not an attack on the concept of intellectual property. I like royalty checks. I'm just worried about the consequences of taking these things to an extreme.)

In 1998, the Walt Disney company had a problem: their company mascot was turning 70. Mickey Mouse had debuted in 1928's "Mickey Mouse In Plane Crazy" which meant that unless something was done, Mickey would enter the public domain within a decade. This was a job for lobbyists, lots of lobbyists.

From Wikipedia:

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.

This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act,[2] effectively "froze" the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again. Unlike copyright extension legislation in the European Union, the Sonny Bono Act did not revive copyrights that had already expired. The Act did extend the terms of protection set for works that were already copyrighted, and is retroactive in that sense.

Mickey had been Disney's biggest hit but he wasn't their first. The studio had established itself with a series of comedies in the early Twenties about a live-action little girl named Alice who found herself in an animated wonderland. In case anyone missed the connection, the debut was actually called "Alice's Wonderland." The Alice Comedies were the series that allowed Disney to leave Kansas and set up his Hollywood studio.

For context, Lewis Carroll published the Alice books, Wonderland and Through the Looking Glass, in 1865 and 1871 and died in 1898. Even under the law that preceded the Mouse Protection Act, Alice would have been the property of Carroll's estate and "Alice's Wonderland" was a far more clear-cut example of infringement than were many of the cases Disney has pursued over the years.

In other words, if present laws and attitudes about intellectual property had been around in the Twenties, the company that lobbied hardest for them might never have existed.

There's nothing unusual about a small company or start-up exploiting lapsed or unenforced copyrights to get a foothold. The public domain has long been fertile ground for stage companies, record companies, publishers, and producers of movies or radio and television; it's just been getting a lot less fertile lately.

Who's afraid of Naomi Wolf?

If you most look for a silver lining to the past few years, it has forced public intellectuals to admit that some of the people they allowed into their ranks should have been expelled a long time ago.

Is vaccinated people’s feces/urine Biden’s Katrina? pic.twitter.com/EgU8iINzBP

— New York Times Pitchbot (@DougJBalloon) June 5, 2021

Which reminds me...

Finally got around to Who's Afraid of Virginia Woolf? and it lived up to the hype. Everyone involved was at the top of their game, and when Burton was at his best...





Which reminds me...

One annoying thing about the movie was the substitution of "Mulberry Bush" for "Big Bad Wolf (because Disney wanted too much money). I wonder if there's a way to restore it. I hear they're doing wonderful things with computers these days.

Ten years ago at the blog

[If I'd been more diligent, I would have looked up the menu of one of the restaurants. These prices are ten years out date, but assuming they haven't gone down...]

 

FRIDAY, JUNE 3, 2011

Salmon/Fung cage match -- Did Salmon use a representative example?

Felix Salmon is one of the sharpest business and finance bloggers out there but I've never quite shared his enthusiasm for the Groupon business model. Disagreeing with Salmon on business matters makes me a little nervous, so I feel a bit better to have Kaiser Fung on my side.

Fung (who shares my high opinion of Salmon's acumen) has a good take-down of Salmon's analysis. You should probably read the whole thing but there's one particular aspect that strikes me as requiring additional attention.

Here's Fung:

Let's start with [Salmon's] neighborhood restaurant example:

At Giorgio's, for instance, diners paid $15 for their Groupon -- which gave them $30 of food. But dinner for two at Giorgio's, with some kind of alcohol, can easily run to $100 or more. So even after knocking $22.50 off the bill (remember that Giorgio's kept $7.50 of the proceeds of Groupon), the restaurant would often still make money.

This is a bit complicated. We can trace how the cash flows. For Groupon, diners pay them $15, and they keep half of that, $7.50. For the diners, they paid Groupon $15 (now worth $30 spending), and so they pay Giorgio's $70; in other words, they paid $85 out of pocket for a meal worth $100 without Groupon. Giorgio's take in $70 from the diners plus $7.50 coming from Groupon for a meal worth $100.

...

So, I don't think the Groupon model is the kind of slam dunk Felix seems to think it is. Only if certain conditions are met will the merchants gain anything from Groupon:

• the value of the coupon has to be a fraction of the total spending at the merchant; in this example, the diners spent more than 3 times the face value of the coupon. What if the diners spend exactly $30? Then Giorgio’s loses $22.50 on each regular customer and earns $7.50 on each new customer, meaning that every 3 new customers pay for each regular’s discount. Not very attractive numbers at all.

Of course, that $7.50 doesn't take into account the cost to the restaurant of preparing and serving the meal (which would further help Fung's case), but putting that aside, how likely are customers to overshoot by a factor of three?

Looking at the offers currently on Groupon, I see three restaurants, Beto's Grill ($20 for $10), Stefano's Pizzeria ($20 for $10) and Henry's Hat ($35 for $15). Of the three, I'm only familiar with Henry's Hat (a game themed bar that, last time I was there, had Kruzno in its library), but, based on the information online, it would be fairly easy for two people to keep the tab down to close to the amount of the Groupon offer in all three.

Obviously, there are plenty of places in LA where you should plan on paying big money for your dinner, but I haven't noticed those places on Groupon. Instead I've seen a lot of moderately priced spots, and I doubt you've got a lot of couples running up a $60 dollar tab on three buck a slice pizza.

[Joseph weighed in the next day]

SUNDAY, JUNE 5, 2011

More on Groupon

As a follow-up to Mark, the comment thread to this post is worth reading. One clever reader noted, in the S-1 groupon just filed:

Our merchant arrangements are generally structured such that we collect cash up front when our customers purchase Groupons and make payments to our merchants at a subsequent date. In North America, we typically pay our merchants in installments within sixty days after the Groupon is sold. In most of our International markets, merchants are not paid until the customer redeems the Groupon.

Now you match this up with this, admittedly anecdotal example:

A good mate who owns a restaurant and did one of these deals after said it was outright amazing - many people would come in and spend EXACTLY the amount of the coupon. They didn't want to go 50c under and heaven forbid they went 50c over and have to pay more at full price

Even worse, you seem to have to more effects. One is a priming effect. New customers assume your $30 entree is worth $15. That is poison. The second is that merchants have begun to do things like "Groupon lines" (rational from their point of view to focus on the full-paying customers first) that reduce the value of the service.

So the business model involves a slow reimbursement to the merchant (waiting for money is death in a small business where cash flow issues can be fatal), enormous discounts (typically 75% off, with the last 25% coming in slowly), and "bargain hunters" who are unlikely to become regular customers.

As a final point, consider:

Perhaps Groupon management thinks it is creating a sustainable Prisoner’s Dilemma, one that ultimately destroys value for the local merchant ecosystem but benefits Groupon. In other words, Groupon could grow so big that local merchants have to use it, even though it ultimately hurts them. In game theory terms, Groupon creates an equilibrium point at “All Local Merchants Defect,” and then, having forced merchants into this value-destroying equilibrium, takes a cut for having rigged the game. Obviously, Groupon couldn’t share this thinking publicly. They would just continue to use the attract-loyal-new-customers argument even though it no longer makes any sense for a ginormous Groupon.

This may sound cynical. But if this is Groupon’s game plan, it isn’t cynical. It’s naïve. Most local merchants simply don’t have enough value in their collective ecosystem to share anything remotely like this much value with Groupon. This isn’t a stable equilibrium, it’s a suicidal one. The local merchants will have to stop using Groupon en masse not long after they first start experimenting with it.

The only way this works is if process quadruple for restaurants (because everyone uses a groupon). Maybe more than quadruple because you replace cash in hand with a 60 day payment. Why would restaurants not break this equilibrium and offer 60% off if you show up without a groupon? Immediate cash in hand, much higher profits, the customer pays less and they don't have to buy a groupon in advance.

And if you don't get this type of prisoner's dilemma, then it is hard to see where the sustainable value is going to be in this business model when your clients will eventually hate you.

Linette Lopez: "Cryptocurrencies are for speculators, criminals, and cosplayers"

Lopez is one of the sharpest journalists currently working the business beat. Marketplace loves her. Elon Musk hates her. She combines first rate reporting with a rare gift for calling out bullshit. 

 And in 2021, there is no richer vein of bullshit than...

Cryptocurrencies are for speculators, criminals, and cosplayers. Aside from that, they're useless, and I'm tired of everyone trying to pretend otherwise.

I have waited for years for someone to explain to me a decent use case for cryptocurrencies. But throughout the recent fervor over crypto with its huge price boom and subsequent bust, I've yet to hear one.

I understand it as a fun speculative asset if you have money to burn and a tolerance for stomach-churning volatility. But you need to understand that it is neither an inflation hedge (as it has demonstrated over the past few weeks), nor a "store of value," nor a viable alternative to government-backed currencies.

The entire asset class (strong words for it, I think) is extremely opaque, and there are embarrassingly few rules governing how it circulates. So if your "digital money" is stolen, or you get scammed, I don't want to hear about it. The very things that make it fun for gamblers — like volatility — are some of the very things that make it dangerous for anyone who thinks it is a good investment.

It's easier to understand the craze if you accept that there really is no point. Just let that wash over you.

Mid-week tweets

Arguing on Twitter.. 😅 pic.twitter.com/NKh9Gt517r

— The Feel Good Page 🌻 (@FeeIGoodPosts) May 26, 2021

This undercuts our solution phobia thread, but credit where credit is due. Kristof has long been one of the few bright spots in the NYT opinion section,

Here's the best investment in the world right now, and the West is not taking it: Spend $50 billion to vaccinate people in developing countries worldwide, and, the IMF says, this will generate $9 trillion in economic returns. I hope Biden reads my column https://t.co/iGYeVEmvF8

— Nicholas Kristof (@NickKristof) May 26, 2021

The Ohio lottery is another example of solution-focused thinking. Moynihan is right. Turley is... Turley.

The beauty of lotteries is that they are a cheap way to motivate people. It would be more costly to pay people to take the vaccine. And you would have to build an expensive implementation infrastructure to set up payments.
(As a prof in Maryland I endorse Ohio's lottery) pic.twitter.com/oVIA1WW57d

— Don Moynihan (@donmoyn) May 28, 2021

Silver is making an important point here. It's difficult to claim we're living in unprecedented times then to base your next argument on precedent.

I still think there's a little bit of tension between the notion —which I largely agree with—that the current GOP represents an unprecedented (at least in modern American history) threat to democracy and the CW that Democrats will surely suffer the usual midterm penalty in '22.

— Nate Silver (@NateSilver538) May 28, 2021

Anyone else remember the wave of "this is not the Dick Cheney I know" quotes from about 2 decades ago? https://t.co/R7LUSI4V0b

— Mark Palko (@MarkPalko1) May 31, 2021

You can find the full here (but it really doesn't help).

"When you start to confuse government research and development with actual research and development..."

Mike Lee is a fool.

— Charles P. Pierce (@CharlesPPierce) May 28, 2021

Good advice

Take note of journalists who pretend to believe conservatives when they pretend to be outraged about things we know they aren’t outraged about.

— Brian Beutler (@brianbeutler) May 30, 2021

And while we're on the subject.

Correction: Meghan is at a casino in Maryland honoring American’s fallen by yelling “whooooo” between Jello shots and blackjack.

May we look to her example during this most solemn of weekends that no one should enjoy in any way. Don’t even think about it.

— Mike Redmond (@theredmond) May 31, 2021

From 2019.

If we start with the compound hypothesis that conservative movement propaganda and disinformation has driven a significant portion of the population (let's call it 20 to 40% just to have a ballpark) into a highly unpleasant state of stress and cognitive dissonance and that these people gravitate toward and reward anyone who relieves this emotional tension, either through message, affect, or language.

And sometimes they just drive into people.

WTF? Driving your car through a vaccination tent isn't a "protest". It's attempted murder and probably best described as terrorism. https://t.co/3C5F1leVrX

— Josh Marshall (@joshtpm) May 27, 2021

The flawed notion of equating caving to pressure with "protecting our credibility" is a big part of what got us here. https://t.co/HK7O4cyNkN

— Mark Palko (@MarkPalko1) May 30, 2021

Take a minute. It's worth it.

Bird's eye view of juggling. pic.twitter.com/gOgH2dAHMw

— Strictly (@StrictlyChristo) May 29, 2021

And to bring us full circle.

Twitter versus real life... pic.twitter.com/kmAZF91YJz

— Rex Chapman🏇🏼 (@RexChapman) May 20, 2021

The Lab Leak Hypothesis -- tell me why I should care (6/1/21)

Six months from now, sure. Maybe sooner if we can regain our momentum on shots-in-arms here and up vaccine production worldwide. When we reach containment (which is tantalizingly close in the US), there are a number of important conversations we need to have about what just happened, and what steps we need to take to minimize the damage of the next one. The origins of Covid-19 will play an important part in those discussions

But I can't think of a single likely finding that will seriously affect any decision currently facing us. 

The thread on solution-phobia started somewhat tongue-in-cheek but it's gotten deadly serious. In the 21st century, we have a problem with problems. We've seen the same pattern with global warming, threats to democracy, and the pandemic. Fox et al. deny the crisis while the respectable press equates seriousness with painting the most hopeless picture possible. The one thing everyone seems to agree on is that nothing can be done. 

In an emergency, the rational first step is to stay focused on the emergency and I think one has come along.