Calblog

The Great Kozinski

When I am not practicing law or involved in the radio biz, I often involve myself in the world of card magic. (It's primarily a hobby for me. But I have been able to make some pocket change with it on a few rare occasions.)

I was hanging out at the Magic Castle on Tuesday night, where I happened to have met up with Alex Kozinski - the saving grace of the 9th Circuit Court of Appeals and one of the finest jurists currently serving in these here United States.

It turns out that Mr. Kozinski is

a fellow card magician hobbyist, and he showed me a few of his moves.

Then I was able to smoke him with my poker deal routine - Four lawyers and the Judge were sitting at a table and I asked them who wants to win as I dealt out five poker hands. The consensus was that the Judge should win, so I sublimely dealt him a royal flush from a shuffled pack of cards without anyone catching on as to how I rigged the deal.

It was perhaps my proudest moment as an amateur magician....

I was further gratified to learn that Judge Kozinski read my blog posting on the "right of publicity" which was republished in Tuesday's Daily Journal newspaper.

However, there was an awkward moment when I had to explain that, had I written an editorial directly for the Journal (as opposed to simply letting them reprint a blog post), then I would have used much more diplomatic language and probably would not have referred to the California Supreme Court as a bunch of "idiots".

This prompted the Judge to wryly ask, "What do you think about the 9th Circuit?"

I wish I could recall exactly how I managed to deflect the question (I had already gotten myself in enough trouble in the gray area of how blogs might apply to legal etiquette and manners towards judges outside of the courthouse).

For the record, I do not think that the California Supreme Court suffers from institutional idiocy. My blog post was just a hyperbolic was of conveying that the specific reasoning in the Saderup ("Three Stooges") case is irrational and unworkable.

So while I don't take back anything in my post, the exchange with the Judge did get me to think about the nature of blogs and how I reflexively think them as being closer to private "water cooler" talk than publication in traditional media, even though its obvious that these postings can reach quite a wide audience at times. Perhaps I am completely unjustified in these feelings, but that is an analysis for another time.

Eventually, I found out that the Daily Journal editor cut out my "idiots" reference anyway. So the my entire confession was for naught.

I digress....

Back to the evening at hand.

I did not ask the Judge what he thought of the substance of my blog entry. But I suspect that he was quite sympathetic to the arguments if you look at some of his brilliant writings on the subject of publicity and intellectual property.

Trademarks Unplugged

What's so fair about "fair use"? (PDF - Adobe Acrobat required)

White v. Samsung Electronics Dissent

Wendt v. Host Intl. Dissent

Mattel v. MCA Records (Opens with Adobe Acrobat Reader - PDF file)

Check out these and other great opinions at the unofficial Kozinski fan site:

http://notabug.com/kozinski/

His opinions on the "right of publicity" are best summed up in his White v. Samsung Electronics Dissent. The entire opinion is worth reading, but the critical summary is found in the first section which reads:

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn't want tabloids to write about him. Rudolf Valentino's heirs want to control his film biography. The Girl Scouts don't want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it "Star Wars." Pepsico doesn't want singers to use the word "Pepsi" in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year's Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.

The panel's opinion is a classic case of overprotection. Concerned about what it sees as a wrong done to Vanna White, the panel majority erects a property right of remarkable and dangerous breadth: Under the majority's opinion, it's now a tort for advertisers to remind the public of a celebrity. Not to use a celebrity's name, voice, signature or likeness; not to imply the celebrity endorses a product; but simply to evoke the celebrity's image in the public's mind. This Orwellian notion withdraws far more from the public domain than prudence and common sense allow. It conflicts with the Copyright Act and the Copyright Clause. It raises serious First Amendment problems. It's bad law, and it deserves a long, hard second look.

Here here your Honor!

It is easy to see the influence Kozinski had on his former law clerks such as noted UCLA law professor Eugene Volokh.

(Check out Volokh's own Freedom of Speech and the Right of Publicity article [PDF].)

But even apart from the substance of his opinions, there is the great style of Kozinski's writing.

Check out some choice quotes:

"[A]s I tell my kids when they ask what I'll do if they run away and join the circus, I don't give advisory opinions." (Trademarks Unplugged)

"For better or worse, we are the Court of Appeals for the Hollywood Circuit." ( White v. Samsung Electronics Dissent)

"The parties are advised to chill." (Mattel v. MCA Records)

Many other choice quotes can be found at the Kozinski fan site.

So let's now raise a toast to a great mind, a great scholar, and one of the great islands of legal sanity in an ever increasing sea of jurisprudential mediocrity!

When it comes to Judge Alex Kozinski, I'd be only too happy to argue in front of him in the courthouse, or sit down with him at the poker tables any day of the week.

And I promise that I would only cheat in the latter instance...

Posted by Justin Levine at May 6, 2004 05:06 PM | TrackBack