Sunday, November 01, 2009

Los Angeles Times on the Fairey "Obama Hope" matter

An editorial at the Los Angeles Times states of the consitutional provision on copyright/patent in the context of the Fairey matter

The framers of the Constitution were so concerned about that incentive that they gave Congress the power to grant inventors and authors exclusive rights over their works in order to "promote the progress of science and the useful arts." But there's a difference between preserving the incentive to create and letting creators collect a toll from every author or artist who builds on what they've done. And it's hard to see how the incentive to take news photos is diminished when generic head-shots are stylized into evocative campaign posters.

The Constitution makes clear that copyright laws are supposed to encourage creativity and innovation rather than restraining them. Giving the green light to truly transformative efforts -- ones that change the context or substance so dramatically that they don't affect the market for the initial work -- should lead to more art, not less. It's not easy to define what makes a use so transformative, nor is that the only consideration. The complexity of the judgment is why the courts decide fair-use questions on a case-by-case basis, with individual rulings helping to chart a rough dividing line between acceptable uses and infringements. The dispute between Fairey and the AP offers a chance to make that line a bit clearer. We don't think the court should condone his deception -- some kind of sanction would be appropriate. Yet that should not tip the balance the court must strike between creators and those who follow them.

Of the LATimes text -- letting creators collect a toll from every author or artist who builds on what they've done ---, Congress has given inventors the right to exclude others for a limited period of time from practicing that which the inventor has created and claimed. The right conveyed from Congress isn't merely a matter of collecting a toll, it is a right to exclude, as in an injunction. In a free market system, one hopes that the creator-inventor can strike a deal with the later entity. The deal making ability breaks down when the later entity does not tell the truth about the facts of the matter. The Fairey-AP matter is one in which a deal should have been made.

**Earlier IPBiz post

Fairey admits misrepresentation in Obama Hope poster matter

**The theme of the LATimes is more thoroughly expounded in a piece in the (London) Times
titled To create, you first have to copy, which includes:

"Borrowing brilliance" is a six-step process that can be divided into two parts, what Murray calls "the origin of a creative idea" and "the evolution of a creative idea".

Step one is defining the problem you are trying to solve. Because a creative idea is a solution to a problem, how you define the problem will determine how you solve it. The Google guys were both working on their PhDs and were using the Internet to gather data - and therein lay the problem: the existing search engines just weren't good enough because they didn't rank the data in order of probable importance to them. This was a very different question to the one asked by two other PhD students, the Yahoo guys, about how best to organise (rather than search) data on the web.

Step two is to borrow ideas from places with a similar problem. You first look at what is being done in your industry and then move outwards from similarity to dissimilarity. In the '20s, Coco Chanel changed women's fashion forever by going to "dissimilarity" to find a new clothing style. She borrowed from men. Her famous Chanel suit was a feminised masculine suit that was both defiant and elegant.

Step three is combining the borrowed ideas through finding appropriate metaphors. Creative thinkers are metaphorical thinkers and the more unusual the metaphor, the more creative the idea. Lucas's Star Wars was an epic, mythological, space opera. The right metaphor is the hard part - Lucas, one of the most creative people in the galaxy, struggled for years to find the right metaphor, but the result was one of the most creative movies of all time.

Steps four to six focus on the evolution of the creative idea, not through thinking it through, but exactly the opposite - not thinking, letting the subconscious mind work its magic below the surface without conscious interference. The subconscious mind can be compared to a parallel processing computer where multiple operations take place simultaneously. This happens in different parts of the computer and is then reconstructed into a solution. The conscious mind, on the other hand, thinks linearly, only able to handle one thought at a time.

NOW, think about how the USPTO analyzes whether claims in patent applications are novel and nonobvious, and especially think about the debate on combination inventions presented in KSR v. Teleflex.


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