Saturday, December 18, 2004

Theatrical Truancy

This article by Charles Isherwood discusses how often one can go to the Broadway theater and find out that the star you came to see is out and the understudy is on. I think his premise is a bit overstated, and the piece lumps together stars who miss shows because they have movie and TV projects with stars who miss shows because of illness. He also exaggerates a bit when he says, "[Ethel] Merman appeared in a new show almost every season." Ethel more often skipped a year between shows. But otherwise, it's a good essay. (If you're interested, I wrote a piece about this that's posted here.)

• Posted at 10:09 PM · LINK

Another Twist in the McFarlane Matter

Here's a message I received from Glenn Adams...

I very much enjoy your blog. I just have to see if you have an opinion on McFarlane's problems and The Aviator.

What Glenn's referring to vis-a-vis "McFarlane's problems" is that Todd McFarlane, comic book artist and creator of Spawn, has just filed for Chapter 11 bankruptcy protection. You can get the details by clicking here or here. I suspect that, even if he has to pay the full $15 million plus all his court costs, Todd will be far from "bankrupt" in the sense that laymen use that word. This Chapter 11 filing is probably a strategic move to protect certain assets and to pressure Twist to accept a lesser amount in settlement.

In any case, as I've said here all along, I think Todd is more in the right than in the wrong on this. The infringement seems slight to me, the dollar amount seems excessive, and the net effect will be to broaden the way in which a Public Figure will seem immune from parody and criticism.

It's odd that you mention The Aviator in the same query. I haven't seen it yet but I'm very interested in Howard Hughes, and I even see a connection here. Hughes hated to have anything written about him — accurate, inaccurate, flattering, libelous...it didn't matter to him. He recoiled at the sheer act of anyone publishing anything that referred in any way to him, and he told his lawyers to spare no expense to prevent it. Throughout the fifties and into the early seventies, they were remarkably successful. Many authors set out to write books about Hughes and only a few, insignificant paperbacks made it into print. In some cases, would-be biographers and reporters were bought off with cold cash, which I suppose is not a threat to Free Speech. In other cases, the Hughes lawyers threatened very costly litigation (costly for the person being sued, natch) based on what they called "The Joe DiMaggio Bat Theory."

Their theory was that if you wanted to manufacture a baseball bat with Joe DiMaggio's name on it, you had to go to Joe DiMaggio, get his permission and pay him a fee. Hughes's attorneys were prepared to go to court to argue that the same principle applied if you wanted to make money off a book about Howard R. Hughes. Needless to say, their assertion was never tested in any court...but books and magazine pieces were actually cancelled by cautious publishers. They were afraid that some jury would get steam-rollered into ruling for Hughes, or that the billionaire would expend sufficient funds to keep the thing going for a long, expensive time. (Before you think that's unlikely, remember how far Jerry Falwell got with a lawsuit that argued he was entitled to damages because a parody by Larry Flynt had caused him "emotional distress." It cost Flynt an awful lot of money and stress to win that case.)

The analogy to the McFarlane case is, admittedly, not exact. Still, if the Twist judgement stands, it's going to scare a lot of authors and artists off from doing things that might prompt some public figure to sue, claiming an infringement on his or her right to merchandise his or her name or likeness. I'm usually skeptical of "slippery slope" arguments but this one seems more slippery than most. I don't like seeing Todd lose this one and I have the feeling that if he does, this case is going to be the keystone precedent in several that will be less arguable in terms of eroding the First Amendment.

• Posted at 9:55 PM · LINK

Spying Eyes

As you've no doubt observed, I'm in the Amazon.Com affiliate program (and a few others) which means that if you click on an Amazon link here, you go to their site and I get a small commission on any purchases you make. This applies to anything you buy if you reach Amazon via the links here. Let's say I put up a link/plug for my book on Mad Magazine and you go to Amazon via that connection. Once there, you come to your senses and decide you have no interest whatsoever in my silly book but you would like a copy of George W. Bush's new book, Destroying Social Security for Dummies. Well, I get a commission on that sale...not a big one but at the end of each quarter, I have enough to pay for a few of my sillier eBay acquisitions and to tip a few websites and such. I'm very grateful for these bucks, by the way.

Recently, a number of Amazon affiliated websites have changed over to a similar program with Barnes & Noble. The motivating factor was that in the last election, Amazon made substantial cash donations to George W. Bush, whereas Barnes & Noble gave almost exclusively to Democrats. I am not a big believer in switching one's patronage of any business over something like that...except, of course, if it will make you feel good. Then, by all means, do it. I just don't think we should kid ourselves and think that kind of thing ever brings a corporation to its knees...or even get noticed in most instances.

While I was briefly mulling the shift, I noticed that lately, Barnes & Noble has sometimes had cheaper prices on some items. They're not a whole lot cheaper — usually 2% or thereabouts — and sometimes, it's the other way around: Amazon is 2% cheaper. I gave the matter more thought than it probably deserved (about 20 seconds) and decided to offer both and let you folks comparison-shop...and if you care about the political donations of the company that sells you your Will Ferrell DVDs, fine. I'd give you a choice. So I signed up for the Barnes & Noble affiliate plan. I have, however, since decided not to carry through with it and post their links.

Here's why: When I started configuring them, I noticed that the Barnes & Noble affiliate links place a small "spyware" cookie on your system. It's part of a marketing program called BFast that shares information between different retailers about your purchasing and web browsing habits. As spyware goes, it's one of the less intrusive specimens. Still, the principle bothers me and, of course, there's no way of predicting what kind of data BFast will be collecting six months from now or what they'll be doing with it. A year or two ago, I was an affiliate of Time-Life Books and I ditched those links because they used BFast. (That affiliate program was run by the same outfit that runs the Barnes & Noble one.) As far as I can tell, Amazon's links do nothing more than make sure I get my cut.

For the benefit of those of you who are interested in purging your system of spyware or adware, this is one of the few areas of my life where I become Felix Unger, cleansing every little nook of my system to within an inch of its life. I've installed Giant Anti-Spyware, which scans my system every night. This is a good, simple program which may soon stop being a good, simple program. It was acquired within the last week or so by the Microsoft Corporation. Someday, we will all be acquired by the Microsoft Corporation but right now, they've purchased Giant and they apparently plan to adapt it into some future Windows update, at which point it will not probably work as well. I also run Ad-Aware, Spybot Search and Destroy, and Pest Patrol, each of which finds and recommends the removal of a few things that the others ignore. And on top of this, my current version of Norton AntiVirus scans for and suggests the deletion of some things that the four other programs let pass. Only two of these five have any issue with BFast but I still thought it would be better not to expose any of you who come here to possible infiltration. Except, of course, by my way of thinking.

• Posted at 5:28 PM · LINK

When Titans Clash

The Marvel Comics folks are suing the companies that market an online game called "City of Heroes" over a claimed infringement on copyrights and trademarks. I haven't paid enough attention to the matter to explain it beyond that or to have any sort of opinion. But when I do get around to reading up on it, this analysis seems like a good place for me to start.

• Posted at 11:55 AM · LINK

December 17, 2004 • Current • December 19, 2004