The Volokh Conspiracy

At this time of year, my email inbox is full of “last chance for Christmas delivery” sales pitches, and so I’ve been thinking about what interests potential buyers in a product.  And having that in the back of my mind when turning to this blog took me straight to one of my favorite entries in Lawtalk:  The Unknown Stories Behind Familiar Legal Expressions: “Comstockery.”  The term–which signifies prudish, self-righteous censorship based on a desire for sexual purity–is named for nineteenth-century crusader Anthony Comstock, who successfully lobbied for enactment of the anti-obscenity law commonly known as the Comstock Act in 1873, got himself appointed two days later as a special postal agent to enforce the law, and by 1874 was already responsible for the seizure of 194,000 pictures and photographs; 14,200 stereopticon plates; 134,000 pounds of books; 60,300 “rubber articles” (condoms); and 5,500 sets of playing cards.  Two years before his death in 1915, he boasted that he had convicted thousands of people and driven fifteen to suicide.

Comstock is nevertheless a paradigmatic example of the marketing value of efforts at suppressing anything remotely sexual.  At least twice in his career his efforts at censorship famously promoted sales.  First up:  George Bernard Shaw.  After some of Shaw’s plays, including Man and Superman, were removed from the open shelves and put on a “restricted list” at New York’s public library, Shaw responded eagerly to a request for comment from a correspondent for the New York Times.  He concluded:  “I can promise the Comstockers that, startling as ‘Man and Superman’ may appear to them, it is the merest Sunday school tract compared with my later play . . . with which they will presently be confronted.”

Comstock rose to the bait and had the next Shaw play that was produced in New York, Mrs. Warren’s Profession, closed on opening night. When courts declined to ban the play as obscene (it dealt seriously with the social and economic issues surrounding prostitution), it became the hottest ticket in town. The Times had predicted just such a result, having published some advice for that “guardian and arbiter of the public morals in these parts.” In an editorial about the library incident the Times wrote:

Let us tell Mr. Comstock an authentic anecdote of the late [eighteen] fifties or the early sixties in New York.  A foreign firm of art dealers had consigned to this country a painting which they expected to make a sensation in this new and unsophisticated world. . . . But nobody came to see it.  [The dealer's U.S. agent then contrived to have a newspaper article published that] recited that a picture was now openly insulting the public moral decency . . . and loudly demanded to know where were the police.  In consequence the next morning there was a queue of ticket buyers to the exhibition extending half way around the block.  Does Mr. Comstock see the point?  We can assure him that Mr. Shaw beholds it vividly.

The second example comes late in Comstock’s career.  The French artist Paul Chabas had won a prize in Paris for his painting September Morn, but in France its nudity was tame even for its time, and its commercial value remained low.

In America, the painting survived an obscenity prosecution in Chicago, and was displayed in a gallery window in New York City in 1913. Comstock learned of the painting’s display and ordered it removed from the window. The dealer refused.

Immediately, the President of a New York art company (prosperous seller of photos, postcards and prints) fired off a letter to the editor of the Times to be sure everyone knew of this affront:  “The people at large as well as the critics and patrons of art are naturally interested in the recent action of Mr. Anthony Comstock in ordering removed from a New York Dealer’s window a copy of Paul Chabas’s beautiful picture . . . [which depicts] the full exposure of God-given beauty modestly posed.”

Scandal worked again.  The resulting publicity made the picture famous, paved the way for its sale to a Russian collector for $10,000 (almost a quarter million in today’s dollars), and created a market for a steady stream of knock-offs. Soon enterprising entrepreneurs were reproducing September Morn on everything conceivable: calendars, postcards, candy boxes, cigar bands, cigarette flannels, pennants, suspenders, bottle openers, and more.  Some of those reproductions took the form of parody, as when Daffy Duck took the place of the modest maid.  When the Metropolitan Museum of Art acquired the painting in 1957, it caused a stir all over again:  art lovers objected that the painting was not art at all, but kitsch.

We can laugh now–in fact by the end of Comstock’s career he was widely ridiculed, as in a clever courtroom cartoon reproduced in Lawtalk–but Comstock’s issues remain with us almost 100 years after his death.  One example has been much noted on this blog.  When the Federal Communications Commission fined CBS millions of dollars for Janet Jackson’s “wardrobe malfunction” during the halftime show of Super Bowl XXXVIII, one writer dubbed it the “Federal Comstockery Commission,” and the resulting lawsuits challenging that and the FCC’s “fleeting expletive” rule are still working their way up and down the federal courts.

It’s enough to make a person want to go out and buy a banned book.

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:

Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service. Raising the odd but interesting question: who assigned the copyright to the News Service? Slater? Perhaps, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). (My friend and colleague Annemarie Bridy recently sent me a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).

But what I love about this little story is that it plumbing its metaphysical depths clearly calls for analysis by someone with deep expertise in (a) primate behavior and (b) copyright law — and guess who that might be?! Yes, it’s true – having spent two years in the Kenyan bush back in the 1970s studying the feeding and ranging behavior of the yellow baboon, and a decade or so writing and teaching in the field of primatology and evolutionary biology, and then the last 15 years working on questions of copyright law and other IP matters, I finally have found the one question that I’m uniquely positioned to answer. I suppose my next step is to send the monkey a short note introducing myself and offering to represent him in his copyright battles with Slater and the Caters News Agency, demanding that his authorship rights be respected and recognized. I’d advise him/her to take a bushel of bananas (33% of which go to me, thank you very much) in return for a covenant not to sue and an irrevocable assignment of all copyright rights in the photos.

[Thanks to Fred Wilf and Diana Lin for the pointer]

XKCD adds: “On January 26, 2010, 2274 Mars days into the mission, NASA declared ‘Spirit’ a ‘stationary research station” expected to stay operational for several more months until the dust buildup on its solar panels forces a final shutdown.”

Spirit = A Robot Laika.  Ave Atque Vale.

I am not very good with graphic design, illustration, and anything that requires good visual instincts.  So I don’t really regard myself as fit to have an opinion about this.  However, a current debate at my school is between Old Logo:

And New Logo:

Opinions at the school seem to be divided; naturally, a Facebook protest page got formed, WCL: What A Crappy Logo.  I don’t know – my Beloved Wife tells me I’m not the guy to pick out a snapshot and get the good one.  So I thought I would ask you, although I know of course that this is a nearly irresistible invitation to put your game face on.  (It also got picked up at Above the Law, but ATL does specialize in being snotty, so even if New Logo were the greatest in the world, it would come in for a bit of sneer.)

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!

Some readers may remember my chronicling my on-the-set experiences portraying a prosecutor in the independent film, InAlienable. (For those who missed the original posts you can read them all in order at this link.) I am very pleased to announce that the film now has a distributor is being officially released on DVD. It is available for pre-order on Amazon.com.
As for my performance, although I have just 2 lines, I am on the screen a lot sitting next to Marina Sirtis who is a major character. Shooting the film, I discovered that even saying nothing involves acting choices, some of which I would have made differently had I ever seen myself on the screen. I did walk away from this experience with enormous respect for those who have mastered the craft of screen acting, which includes the entire InAlienable cast of experienced TV and movie sci-fi actors. Is this a perfect film? Hardly. It treads a very difficult line between drama and comedy. But it is a fun movie to watch, though not nearly as fun as appearing in.

UPDATE: For some reason the Amazon link to InAlienable was not displaying. I am trying again, as well adding a link to the word InAlienable in the text (and here).

When I was running university film societies in the 1970s and early 1980s, I considered Roman Polanski’s Chinatown the best film made in the 1970s. I don’t know what I would think today because I haven’t seen it for three decades. And I still consider Rosemary’s Baby one of the best horror movies ever made.

I mention this because good artists are not necessarily good people and bad people are not necessarily bad artists.

The first writer I encountered who explored this issue was George Orwell in his essay on Dali. The essay is also memorable because its second sentence contains one of Orwell’s most resonant ideas: “any life when viewed from the inside is simply a series of defeats.”

Notes on Dali

George Orwell

Autobiography is only to be trusted when it reveals something disgraceful. A man who gives a good account of himself is probably lying, since any life when viewed from the inside is simply a series of defeats. However, even the most flagrantly dishonest book (Frank Harris’s autobiographical writings are an example) can without intending it give a true picture of its author. Dali’s recently published Life [The Secret Life of Salvador Dali (The Dial Press, 1942)] comes under this heading. Some of the incidents in it are flatly incredible, others have been rearranged and romanticised, and not merely the humiliation but the persistent ordinariness of everyday life has been cut out. Dali is even by his own diagnosis narcissistic, and his autobiography is simply a strip-tease act conducted in pink limelight. But as a record of fantasy, of the perversion of instinct that has been made possible by the machine age, it has great value.

Here, then, are some of the episodes in Dali’s life, from his earliest years onward. Which of them are true and which are imaginary hardly matters: the point is that this is the kind of thing that Dali would have liked to do.

When he is six years old there is some excitement over the appearance of Halley’s comet:

* Suddenly one of my father’s office clerks appeared in the drawing-room doorway and announced that the comet could be seen from the terrace…. While crossing the hall I caught sight of my little three-year-old sister crawling unobtrusively through a doorway. I stopped, hesitated a second, then gave her a terrible kick in the head as though it had been a ball, and continued running, carried away with a ‘delirious joy’ induced by this savage act. But my father, who was behind me, caught me and led me down in to his office, where I remained as a punishment till dinner-time.”

A year earlier than this Dali had “suddenly, as most of my ideas occur,” flung another little boy off a suspension bridge. Several other incidents of the same kind are recorded, including (this was when he was twenty-nine years old) knocking down and trampling on a girl “until they had to tear her, bleeding, out of my reach.”

When he is about five he gets hold of a wounded bat which he puts into a tin pail. Next morning he finds that the bat is almost dead and is covered with ants which are devouring it. He puts it in his mouth, ants and all, and bites it almost in half.

When he is an adolescent a girl falls desperately in love with him. He kisses and caresses her so as to excite her as much as possible, but refuses to go further. He resolves to keep this up for five years (he calls it his “five-year plan”), enjoying her humiliation and the sense of power it gives him. He frequently tells her that at the end of the five years he will desert her, and when the time comes he does so.

. . . When he first meets his future wife, Gala, he is greatly tempted to push her off a precipice. He is aware that there is something that she wants him to do to her, and after their first kiss the confession is made:

* I threw back Gala’s head, pulling it by the hair, and trembling with complete hysteria, I commanded: “Now tell me what you want me to do with you! But tell me slowly, looking me in the eye, with the crudest, the most ferociously erotic words that can make both of us feel the greatest shame!”

* Then Gala, transforming the last glimmer of her expression of pleasure into the hard light of her own tyranny, answered: “I want you to kill me!”

He is somewhat disappointed by this demand, since it is merely what he wanted to do already. He contemplates throwing her off the bell-tower of the Cathedral of Toledo, but refrains from doing so.

. . . Of course, in this long book of 400 quarto pages there is more than I have indicated, but I do not think that I have given an unfair account of his moral atmosphere and mental scenery. It is a book that stinks. If it were possible for a book to give a physical stink off its pages, this one would — a thought that might please Dali, who before wooing his future wife for the first time rubbed himself all over with an ointment made of goat’s dung boiled up in fish glue. But against this has to be set the fact that Dali is a draughtsman of very exceptional gifts. He is also, to judge by the minuteness and the sureness of his drawings, a very hard worker. He is an exhibitionist and a careerist, but he is not a fraud. He has fifty times more talent than most of the people who would denounce his morals and jeer at his paintings. And these two sets of facts, taken together, raise a question which for lack of any basis of agreement seldom gets a real discussion.

The point is that you have here a direct, unmistakable assault on sanity and decency; and even — since some of Dali’s pictures would tend to poison the imagination like a pornographic postcard — on life itself. What Dali has done and what he has imagined is debatable, but in his outlook, his character, the bedrock decency of a human being does not exist. He is as anti-social as a flea. Clearly, such people are undesirable, and a society in which they can flourish has something wrong with it. . . .

But if you talk to the kind of person who can see Dali’s merits, the response that you get is not as a rule very much better. If you say that Dali, though a brilliant draughtsman, is a dirty little scoundrel, you are looked upon as a savage. If you say that you don’t like rotting corpses, and that people who do like rotting corpses are mentally diseased, it is assumed that you lack the æsthetic sense. Since “Mannequin rotting in a taxicab” is a good composition. And between these two fallacies there is no middle position, but we seldom hear much about it. On the one side Kulturbolschewismus: on the other (though the phrase itself is out of fashion) “Art for Art’s sake.” Obscenity is a very difficult question to discuss honestly. People are too frightened either of seeming to be shocked or of seeming not to be shocked, to be able to define the relationship between art and morals.

It will be seen that what the defenders of Dali are claiming is a kind of benefit of clergy. The artist is to be exempt from the moral laws that are binding on ordinary people. Just pronounce the magic word “Art,” and everything is O.K.: kicking little girls in the head is O.K. . . . It is also O.K. that Dali should batten on France for years and then scuttle off like rat as soon as France is in danger. So long as you can paint well enough to pass the test, all shall be forgiven you.

One can see how false this is if one extends it to cover ordinary crime. In an age like our own, when the artist is an altogether exceptional person, he must be allowed a certain amount of irresponsibility, just as a pregnant woman is. Still, no one would say that a pregnant woman should be allowed to commit murder, nor would anyone make such a claim for the artist, however gifted. If Shakespeare returned to the earth to-morrow, and if it were found that his favourite recreation was raping little girls in railway carriages, we should not tell him to go ahead with it on the ground that he might write another King Lear.