The way to get people to build a ship is not to teach them carpentry, assign them tasks, and give them schedules to meet; but to inspire them to long for the infinite immensity of the sea.

Not only are early incarnations of Mickey Mouse no longer covered by copyright, but as of 1 January last, neither is Popeye (King Features page | Popeye.com | wikipedia), at least in the EU. According to The Times:

Popeye the Sailor copyright free 70 years after Elzie Segar’s death

“I yam what I yam,” declared Popeye. And just what that is is likely to become less clear as the copyright expires on the character who generates about £1.5 billion in annual sales.

From January 1, the iconic sailor falls into the public domain in Britain under an EU law that restricts the rights of authors to 70 years after their death. Elzie Segar, the Illinois artist who created Popeye, his love interest Olive Oyl and nemesis Bluto, died in 1938. .. The copyright expiry means that … anyone can print and sell Popeye posters, T-shirts and even create new comic strips, without the need for authorisation or to make royalty payments. …

Elzie Segar is one of a number of authors whose work came out of copyright on 1 January last. However, in a similar story, The Telegraph warns

… the question of whether any company can now attach Popeye’s famous face to their spinach cans will have to be tested in court.

While the copyright is about to expire inside the EU, the character is protected in the US until 2024. US law protects a work for 95 years after its initial copyright.

The Popeye trademark, a separate entity to Segar’s authorial copyright, is owned by King Features, a subsidiary of the Hearst Corporation which is expected to protect its brand aggressively. …

Moreover, Likelihood of Confusion predicts that the US Congress might be persuaded yet again to extend that copyright period (though there must surely be limits to the US Supreme Court’s forbearance in this matter). In the meantime, as Techdirt (hat tip Peter Black) observes, “what happens with Popeye in the UK may be a rough guide as to what will happen should Mickey Mouse hit the public domain”.


Bonus link: An Informal Rant About [Copyright] Formalities (hat tip: Madisonian).

If this had happened in Ireland, would the photos in this story (hat tip: Piste Off: Man Left Dangling With Full “Northern Exposure” at Ski Resort) be actionable having regard to Sinnott v Carlow Nationalist (discussed here, here, here, here and here), and if so, should they be?

There may – controversially – be no duty to rescue at common law (see, eg, Alan Calnan (SSRN), David Hyman (pdf)), but the emergency can beget the man (Wagner v International Railway 232 NY 176 (1926) (Cardozo J)), even in New York. However, although danger may very well invite rescue (Wagner (Cardozo J) again), nevertheless, it seems that it would now be wise to decline the invitation in California. From Ratio Juris:

… The California Supreme Court has given fresh meaning to “no good deed goes unpunished.” It ruled last week that a woman who yanked a co-worker from a crashed car four years ago, and may have made her injuries worse, can be sued because what she did wasn’t medical care. …

The best conceptual discussions are EJ Weinrib “The Case for a Duty to Rescue” (1980) 90 Yale Law Journal 247 and the very different WM Landes and RA Posner “Salvors, Finders, Good Samaritans and other Rescuers: An economic study of Law and Altruism” (1978) Journal of Legal Studies 83 (SSRN); for Irish law on the point, see “Danger Invites Rescue. The Tort of Negligence and the Rescue Principle” (1992) 14 Dublin University Law Journal 65.

Why do I have the urge to hum the Dionne Warwick/Burt Bacharach/Hal David song “Walk on by“?

In the Law School in Trinity, the proportion of my students using laptops in class has increased year by year, though they have not yet reached the levels attained in US law schools, where the vast majority of students have laptops in class. Whether this is too much of a good thing, however, is now a serious matter for debate: are benefits of the technology outweighed by the capacity for distraction (taking notes vs updating facebook)? The University of Chicago School of Law has turned off wireless internet access in class, Harvard Law School has considered banning laptops in class, various individual law professors have actually done so or negotiated them away, and there is even a law review article on the issue. Now, Law School Innovation reports on an article from The Chronicle of Higher Education, headlined “Survey Gets Law-School Students’ Thoughts on Laptops, Writing, and Ethics” (sub req’d). Some extracts:

Law-school professors are fed up with students using laptop computers in class to surf to Facebook, eBay, everything but LexisNexis. And some have even banned the distracting machines. But results from a new survey show that an outright ban might not be such a good idea.

The 2008 Law School Survey of Student Engagement, released today, suggests that, when used wisely, laptops can actually enhance student engagement. The survey found that class-related laptop use correlates highly with reported gains in several areas, including critical and analytical thinking.

Students who used laptops for class-related activities, like reading case briefs or taking notes, were more likely than students using laptops during class for other purposes to be engaged in classroom discussions, synthesize concepts from different courses, and work hard to meet faculty expectations, the survey found …

I broadly agree with these findings. I’ve been on both sides of these laptops, and I’m going to break ranks and admit something to those students reading this blog: from the front of the class, I can often tell when someone is concentrating on the screen for reasons other than the class. For example, it’s pretty obvious if you’re furiously typing away while everyone else is doing nothing at all, studiously failing to answer a question I’ve just posed – gotcha! you’re drafting an email or updating a profile, aren’t you? Now, this is an extreme example, but there are lots of obvious examples short of that, and even if I don’t notice every non-classroom related usage, I do notice a lot of them. And in my class, you run the risk of having a few questions directed specifically to you just when you’re deepest into your online distraction. But I don’t see myself going any further and seeking to turn off the wifi or even ban the laptops. I think that the benefits of technology far, far outweigh the detriments. And, in any event, people who are bored in class will daydream even if they don’t surf.

It’s an old story by now, but I missed it at the time, and I stumbled upon it today. It begins with a worthy event, the Law Society of Ireland’s Justice Media Awards, established to give national recognition to legal journalism in various categories. To my mind, the categories are rather narrow, confined as they are in effect to full-time journalists in the traditional media, but that’s a minor quibble which I am sure will be addressed in the future by the addition of a new, more general, category (perhaps named for a significant figure associated with the Society). In any event, the 2008 awards were presented late last year, and at the event Mr Justice Adrian Hardiman of the Supreme Court made a speech which caused some controversy. For example, writing the Irish Times the following day, Carl O’Brien (one of the winners on the night) reported that Hardiman

… has sharply criticised the media for its “inadequate and uninformative” coverage of the courts. Speaking at the Law Society annual Justice Media Awards, he accused the media of rushing to comment on judges’ rulings without properly examining or understanding them.

The Irish Times later published the full text of the speech here. And I have to say that in this, Hardiman is absolutely right. His solution was to ask for more rigour in court reporting, and more co-operation between the courts and the media. This is all to the good, but I think his analysis is lacking, in that the problem – if such it be – is not confined to reporting of the courts: it is endemic in how everything is reported, from the most serious political developments to sports to entertainment – everything suffers from the rush to comment, from the focus on the human interest to the detriment of the detail. Indeed, Hardiman’s grumble that

… even the result [in a given case] and its significance is often distorted as the reporter or some editor focuses on some incidental but picturesque detail, or on the need for a headline

could just as easily apply to the reporting of any other event as it does to the reporting of the courts. This is not to say that it is a good thing; merely to say that it is not confined to Hardiman’s context – it is a function of reporting in general. And the problem may really be not with the reporters and editors who give the public what they want, but with us, the public, in wanting it in the first place. And if that is the real problem, the solutions will have to be much broader than those proposed by Hardiman.

This has not prevented Hardiman from attracting criticism for his comments. For example, in another Irish Times report, Prof Finbarr McAuley, Jean Monnet Professor of European Criminal Justice in UCD and a member of the Law Reform Commission, objected that

… it is not sensible for judges to get into controversy with parts of civil society that might appear as litigants in the courts. It’s fine for judges to make statements about technical aspects of the law. But making controversial statements is unwise.

This is a counsel of prudence, rather than of principle; and in principle I don’t see why judges shouldn’t make such comments. Indeed, it might be better that they should, to avoid subsequent problems with conflicts of interest.

However, the controversy was stoked to artificial heights by what seems to me to be an uncalled for mischaracterisation of some of Hardiman’s remarks. In the published version of his speech, in urging amity between the bench and the media, he said

in the words of Rogers and Hammerstein, in Oklahoma!, that:

“The farmer and the cowman should be friends”.

Expanding on this in later discussion, he is reported to have referred to women court correspondents as “cowgirls”, a phrase which was said to have surprised the media and to show his lack of judgment.

I wasn’t at the event, unfortunately. But, to my mind, this aspect of the controversy is a storm in a tea-cup, unnecessarily distracting from the real issue. Hardiman was making an important point, and rather than engaging with the specific problem he was identifying, or with the more general social malaise of which it is simply an exemplar, the media chose instead to focus on a throwaway wisecrack (which, uncharacteristically, seems to have been ill-judged). It seems to me that the media were quick to perceive a mote in Hardiman’s eye, whilst failing entirely to consider the beam in their own.

In the end, because there is no such thing as bad publicity, it was all good publicity for the Justice Media Awards. I wonder whether Mr Justice Hardiman might be the first recipient of the new, more general, category award I posited at the outset? If not, perhaps it might be named for him?

In yesterday’s Irish Times, I noticed the following story:

ESB to pay rebates on 100,000 overcharged bills

The ESB says the payment of rebates to about 100,000 of its customers who were overcharged on estimated bills will be completed by the end of next month.

The utility is repaying a total of €3.5 million to customers after carrying out a review of its billing practices ordered by the Commission for Energy Regulation (CER) …

This is as it should be. Even if there were no contractual obligation on the ESB to regularise the position regarding estimated bills, there would be plainly be a restitutionary one. This reminded me of a story from a recent Financial Times, about pension overpayments on a large scale, which also makes for very interesting reading: Read the rest of this entry »

In Atherton v DPP [2006] 1 IR 245, [2005] IEHC 429 (21 December 2005) Peart J held that a video recording of a hedge visible from the public road – and thus of the accused causing criminal damage to the hedge – did not constitute an unconstitutional invasion of the accused’s right to privacy. On the other hand, in Sinnott v Carlow Nationalist (High Court, unreported, 30 July 2008, Budd J) (already discussed on this site: here, here, here and here), Budd J held that the publication of a photograph of the plaintiff playing Gaelic football in which his private parts were clearly visible constituted a breach of his constitutional right to privacy. It is therefore reasonably clear that – as Atherton illustrates – most matters which occur in a public place will not, for that reason, attract the protection of the constitutional right of privacy; but that – as Sinnott illustrates – some matters will.

Although Sinnott may very well be exceptional, it demonstrates that, as a matter of Irish law, it is possible to assert a right of privacy in a public place. Although it may also be exceptional, the converse may also be true, that a right of privacy may be lost even in a private place. For example, there may be consent to some degree of scrutiny (such as being seen nude by someone else in a private or intimate setting) which would mean that the right of privacy is lost in that private place at least to some extent. But, in principle, there would limits to the consent so given, so that if the scrutiny which occurred (such as secretly making a recording of the nudity) went further than the consent, it would therefore became an infringement of privacy. Read the rest of this entry »