ViewPoint 8
ViewPoint 8
Market Skinny
Will I try to get get protection for my "Seattle Skinny" idea?
Government-gifted entitlements are luring US businesses away from making better products & into a morass of contentious "who owns what" battles. Our Corporations are setting themselves up for a big fall if they think the rest of the world will endlessly respect their claims of "ownership" of routine ideas & commodities
written circa winter 2006
Thanks to our generous and wonderful customers, our new product, the “Seattle Skinny” available in 8 iterations, (the Market Skinny is shown above) is doing well. The “Seattle Skinnies” are small, narrow, vertical prints that feature stacked rectangular images. They are the only art prints you still have room for if you are an avid art collector. They allow for all kinds of themes, and look really nice matted and framed. So am I going to seek as much legal protection as I can possibly get to keep anyone from copying my great idea?
No--nothing extra for me. In other words, I automatically receive protection on the images themselves, which is at it should be. I don't need, want or deserve protection for the concept of skinnies.
There's a line between being proud of a great idea, and I am proud, and being opportunistic and selfish about it. The invention of the Seattle Skinny doesn't make me Alexander Graham Bell, and I realize that. It's not nearly new or unique enough that I should be able to hassle some other business should they want to flatter me by imitating it.
Shorebird Skinny
(For all I know, someone could have beaten me to this idea and may have been doing it for years. I might have even seen something like it once, stored it in my subconscious, and forgotten all about it. That's a part of everyone's creativity, and I would feel good about having done that, not bad.)
The problem is, government offices in charge of handing out rights don't always realize this. They have a syndrome--they think everybody they meet is Alexander Graham Bell. They have been freely handing out patents, copyrights and trademarks for things they have no right to take out of the public domain. A clothing company owns all the rights to the phrase “What happens in Las Vegas Stays in Las Vegas.” Why should anyone be able to get the rights to a full sentence in the English language? Meanwhile a Montana businessman has been granted rights to the phrase “Last Best Place,” and now Montanans may have to stop using it in commercial situations if they don't want legal hassles. Starbucks got control of the two words “Christmas Blend,” but lost when challenged by a monestery that had already been using this exceedingly…what do I say, predictable? easy-to-come-up-with? logical? …phrase for years.
While I'm annoyed at Starbucks for ever seeking intellectual property rights protection for the words “Christmas Blend,” the real blame for the situation lies at the feet of the government offices that said yes to the request. When such protection is granted, the government office is blithely stealing these words and phrases from the public. Since these offices are so promiscuous with this gifting, those in business become “stupid” if they fail to ask for it.
And it can be truly ridiculous what you can get government protection for. The artist Kincade is the U.S. Government sanctioned “Painter of Light.” So what was Van Gogh, “The painter of darkness?” Maybe you only thought that was light in those Maxfield Parrish paintings. (A full disclosure-type footnote here: whenever artists like me criticize an artist as phenomenally successful as Kincade, some percent of the motivation, somewhere between 1 and 100%, is jealousy!)
I suppose Picasso, if he were living and painting in this country today, could get protection for cubism. In our brave new world, maybe a new made-over and money-grubbing Monet could trademark "Impressionism," and try to keep Renoir from painting the same bend of the river he was, saying "I thought of painting water lilies first!"
But it gets worse. Monsanto is out to capture, patent and copyright all of agriculture, and is being aided by a government that tends to give Monsanto whatever it wants in the intellectual property rights arena while looking the other way whenever Monsanto genetically pollutes flora on property of its neighbors and degrades ecosystems on neighbor's land with its chemicals. Thankfully, however, sanity does occasionally rear its head. When an American company tried to patent a product of the Neem tree which had been used as a folk remedy in India for over 4000 years, it was…denied!
A guy that I met on a plane who worked for a large tech firm described what was really a new consumer feature, rather than what anyone would think of as an invention, and he mentioned that his company would seek a patent for it. Mostly, he said, because it would help in negotiations with other corporations that held patents on equally routine ideas that his company would need to use. Large companies can play the patent game, and they have a stable of lawyers to do it. But what effect is this legal overlay of hassles having on small startups?
One of the more insidious ideas in the intellectual property realm is the notion that if a company spends a lot of money on advertising a phrase, they therefore deserve the rights to it. This is one of those laws that applies equally to rich and poor, that brings to mind the quotation about the law against sleeping under bridges applying equally to the rich and poor. One party's ability to budget for advertising should not corrupt the process of awarding intellectual property rights.
People who get angry when agencies try to protect our last remaining wetlands often fail to see the erosion of market freedom that goes with the promiscuous granting of patents, copy rights, and trademarks for things that are not really new or unique. Sure, at their core all of these classes of rights are fine and necessary if granted judiciously and conservatively. And I absolutely do not intend this to be a criticism of the vast majority of people and businesses who need and seek various kinds of intellectual property protection, including me, (I get automatic copyright protection for paintings, for which I'm grateful). But let's not reward businesses that substitute intellectual property rights laws and a phalanx of lawyers for simple good business practices and goodwill to all—including their competitors! And let's support any politician who wants to reign in the agencies from granting intellectual protection for everything from sentences to common phrases ("Just Do It" is protected) to methods for solving problems, and consumer convenience ideas that would be thought up next month if they hadn't been thought up and patented last month.
Well, now that I got that off my chest, I'm going to just do it, I'll become a painter of light in the last best place, but no one will know, because what happens on this website stays on this website. Have a Christmas Blend everyone!
Post Scripts: Dale Chihuly
Dale Chihuly certainly is not taking my advice. An article in the Seattle Stranger makes the point that in the coming news coverage of his ridiculous lawsuit against a former employee, the public is likely to become aware, for the first time, of the fact that Chihuly hasn't blown any glass since the 1970's.
May 20 2006 update: This prediction of the Stranger's is coming true, and worse, the court proceedings are revealing information that is embarassing us on behalf of Chihuly. In a countersuit, one of the artists, Bryan Rubino, has submitted a fax that from Chihuly to Rubino that (I'm quoting from the Seattle Times) "includes stick-like drawings and the following instructions: "Here's a little sketch but make whatever you want. We'll get everything up to Tacoma when you're done and I'll try to come down while you're blowing. Till then, Chihuly." The countersuit, according to the Seattle Times, makes the point that Chihuly "cannot use copyright registrations to protect an idea or process that is so elementary that it would preclude any other glass artist from working or creating any glass art at all." Especially when Chihuly's creative idea is "make whatever you want..."
Post Scripts: 12th man
The ridiculousness continues as the "12th man" case progresses in a Texas court. (The "12th man" refers to the added power the fans give an 11-man team on a football field, and Texas A&M apparently originated the term, which the Seattle Seahawks have taken to using). Again, two extremely common words in the English language are conceivabley being removed from the free market, and it isn't Texas A&M's fault, although they should drop this. A spokesperson for the university said, "As the games get more important and there's more public exposure of it, then as the trademark owner if you don't do anything... you really are putting your rights at risk." The fault here lies entirely with the government office that grants the "right" in the first place. It's understandable that Texas A& M is trying to cling to something they "own" that's possibly valuable, but why should they ever have been allowed to own a phrase made of two simple common words? Our government is corrupting our society and intervening in the market to make us think of creativity only as something that can make us rich at the expense of others, rather than as something than can make us richer along with others and our whole society.
It's important to remember when we read about these silly disputes that it's talented grown men and women whose highly-paid time is absorbed working on them, and that often it's our tax money that is involved with fighting them or underwriting the courtroom venue. No doubt Texas tax money is going into the 12th man fight. Had government never granted the protection in the first place, there would be no dispute and no waste of productivity.
Post Scripts: Sweet Pea
Another instance is described in the March 15 2006 Seattle Times. A woman, Leslie Newman, who used the word "Sweet Pea" on designs on t-shirts and bags was sued along with 51 other defendants by Sweet Pea Limited of Florida, an upscale clothing retailer. Remember that Sweet Pea is a horticultural or botanical term that has been around longer than any upscale retailer. Then it was a song that I can still remember being new, but that was a very long time ago.
The story, on the business pages, was presented as a tale with a happy ending. The plaintiff, Sweet Pea Limited, had avoided sueing any large retailers that were using "sweet pea," only picking on small businesses to attack, presumably in the hopes of intimidating them into a large settlement. In this way they presented a perfect laboratory example of how the governmental abuse of promiscuously granting property rights hurts small businesses more than big businesses. The ultimate settlement was kept secret, but thanks to the creative and spirited defense enabled by Newman, who extensively used the internet, it apparently wasn't too painful.
But that's not a happy tale. This is where Leslie Newman's creativity & energy principally was forced to go for the last two months--when she could have been designing and retailing t-shirts and hand bags. We should be outraged that any one incorporating such an old, old, term as "sweet pea" into their artwork was ever bothered at all.
Post Scripts: Walmart
Now, Circa May 9 Walmart is trying to get protection of its version of the happy face, which it says it needs because it's put so much money into it. Needless to say, Walmart had nothing to do with the invention of the happy face.