Tag Archives: language of IP

i heart new york

New York’s state tourism board is seeking to reclaim their “I heart NY” slogan. (link from michele) According to the article, the slogan was developed for them pro bono by graphic designer Milton Glaser in the early 1970s. It was used prolifically as a mark; then they let their registration lapse and stopped policing it; and then everybody and their sister started selling products with “I heart NY” on them. Over the last few years the tourism board (“Empire State Development”) realized the “error” (read: revenue stupidity) of their non-policing ways so they renewed their registration and began policing the mark.

How did they begin? By threatening to sue Mr. Glaser (the original graphic designer, remember, who donated the logo pro bono), who had, after 9/11, designed an “I heart NY More Than Ever” logo. He was naturally outraged.

random aside: My browser (Firefox 2.0/Mac 10.5) displayed the “heart” ♥ on the browser bar (generated by the title tag) but on the headline text itself and throughout the rest of the body of the article, I saw only a junk ascii character. Looking at the source, they used ♥ in both the title and throughout the body. No problem with display (either of the NYT article or this post) in Safari. Apparently, this is some kind of Firefox rendering problem. Hmm.

… Anyway, just a note on terminology. Here again we have people talking about “fakes”, which is the accepted jargon within trademark circles for unlicensed products. Note, however, that they’re not “fake” in any way that ordinary people would understand fake: It’s not like the t-shirt or mouse pad or bumper sticker is not really a t-shirt or mouse pad or bumper sticker. “Fake” means “unauthorized” — that the NY tourism board didn’t license the use of their registered mark to the t-shirt, mouse pad, or bumper sticker maker.

Well, “unlicensed” or “unauthorized” might arguably be serious when people are actually paying good money for the brand. Traditionally marks are meant to help consumers identify the source of a good or service, so that they can choose to pay top dollar for goods and services with good reputations for high quality. Quality might be quality of components — well-made, true cotton and not poly-blend, etc. Or it might be more money than the bare physical elements of the product are worth, for instance, as in paying top dollar for a Gucci purse. Here we’re getting into more ephemeral attributes and qualities: quality of design, maybe, and of course “authenticity”.

But how does that apply to “I heart NY”? Slogans can be marks; you can associate a slogan with a particular good or service. “I can’t believe it’s not butter.”

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ip in every-day language

In an article about the post-Brokeback cowboy fashion revival [NYT 2006/3/9], I noticed this paragraph:

When you unravel the history of cowboys and their clothes, the 150-year tug of war over who’s a cowboy and who’s a dude, as department-store cowboys are still derisively called, gets tangled. The Wild West may be the place where branding was born, but if the last 150 years have made anything clear, it is that no one has staked a clear copyright claim on cowboy style.

I’m not sure what it says about our culture that IP concepts are simultaneously so ubiquitous and so mangled.

ruminating on … rumination? information? tinkering? imagination?

For some time (years, literally) I’ve been pondering the perfect phrase to capture ‘information rights’ — the natural right people have to create, invent, tinker, think, imagine, ponder, access information, etc. The First Amendment conceptual toolkit doesn’t really measure up: we have First Amendment concepts for speaking and the corollary, listening. But these concepts don’t fully capture the rights which are restricted by intellectual property laws, government Secrets Acts, and the like.

The language I would like would be fuller, and would capture not just the First Amendment concepts of communicating, but also the right to gather information and access information about the world around you, the systems, the people, the cultural creations — the right to investigate? the right to explore? the right to acquire information? the right to learn? It’s about knowledge acquisition and communication. I want the perfect pithy, zingy, umbrella term that encompasses all these information and knowledge-based rights.

The pieces that are critical to the term, I think, are

(a) the right to create new stuff;
(b) the right to experiment with & learn about existing stuff, gathering information and exploring the world;
(c) the right to communicate information and ideas; and
(d) the right to receive information and ideas.

Or maybe these could be broken down into (a) communication (first amendment) and (b) creation (gathering existing information and manipulating it; creating knowledge, whether embodied only in the creator’s mind, or whether embodied in an invention, or embodied in a new derivative work). But this doesn’t quite get it: I worry that the concept “creation” is too subject to being cabined off by notions of originality and novelty. Also, while creation requires exploration and knowledge gathering and information access, I would ideally like to the term to capture both aspects and not privilege acts of “creation”.

Or perhaps (a) receiving information ought to be construed more broadly, to include accessing information &mash; as in FOIA requests, sunshine acts, scientific research, reverse engineering products. And (b) communicating and disseminating alone.

The two candidates I’ve toyed with have been intellectual rights and information rights.

“Intellectual Rights” is nice because it balances “intellectual property”: it suggests that “intellectual property rights” are but one subcategory of “intellectual rights”. And “intellectual” gets at the braininess of the matter: the concept should capture the essence of all its elements, which is to say, the human mind at work. But it sounds wonky and, well, in these anti-intellectual times, maybe it’s not really sellable. Also, “intellectual rights” doesn’t necessarily mean that one can gather information, about the government, say, or about the new DRM methods.

“Information Rights” is nice, but the term “information” always sounds so bland, so cheerless and un-fun. Thinking and learning and reading and talking is fun.

I want this concept, because I want a better way to balance the trade-offs of different sets of rights. Information can be free, or it can be controlled. We have many, many doctrines that aim to control or free up information: the Speech Clause and the IP Clause; trade secrets, contract law, the DMCA and DRM; FOIA and government classification and Secrets Acts; privacy and reputational harms; risks of other harms and national security; open content, open source, and open licensing. But often when I look at a particular instance, the values for controlling information are defined well, and the values for sharing the information are not. It seems that a single pithy term or phrase would help make this work more concrete.

Or maybe the “information rights” concepts are too distinct to ever be wrapped into one? Privacy, for instance, has proven to be a troubling concept; we say “privacy”, but we mean “information privacy”, “data security”, the “right to be left alone”, or even “autonomy” (e.g., reproductive rights). And privacy further breaks down on the subject: private from whom? the government? commercial enterprises? public knowledge?

Maybe imsologists and critical information studies folks (CISters?) have already come up with search a term? but I haven’t found it yet.

Hmm. Still processing …

2005/11/28: “intellectual liberty” ???