text:
Deconstruction: The Subversive Power of Slash-Fic
I've been thinking a lot about fan-fic and slash-fic lately.
Now, it's really difficult to write a post about fan-fic and slash-fic without defining the terms for the readers who aren't familiar with either. And it's really difficult to accurately define these terms because they mean different things for different people. So I'm going to try to define what the terms mean to me, but with the advance warning that I tend to define these terms more loosely and more broadly than many other people do. And, it's worth noting: I don't own the terms and I'm not the definitive guide for using them. So there's that!
But having said that, I use the term fan-fic to refer to stories written by fans of an existing fictional work. The fan-fic work utilizes some or all of the existing work's pre-established characters, world building, and possibly story arcs. I use the term slash-fic to refer to "fan-fic that contains romantic pairings between existing characters that is not directly supported by the established work", but it's important to note that a large body of slash-fic requires changing or modifying a character's established sexuality in order to make the pairing work.
Based on these very broad definitions, I've loved fan-fic for years. Some of my favorite novels are new retellings of old fairy tales or modern rewrites of Shakespearean plays. My favorite Greek plays are the ones that took pre-existing myths and reworked them into new interpretations. I've seen "The Divine Comedy" described in jest as "history's first recorded self-insert fan-fic", but by golly I like that Dante gets to meet Virgil and be Best Friends Forever. Fan-fic has always seemed to me to be a great platform for breathing modern concerns and issues into relevant older pieces, as well as for filling in plot holes or extrapolating what happens after The End.
Slash-fic, on the other hand, I've had a more changeable relationship with, and for that I blame Sherlock Holmes. You see, I like Sherlock Holmes stories, although I think I liked them more when I was a child and the logic trains seemed more clear-cut and less authorially-mandated. But I like them nonetheless, and I especially like that Sherlock Holmes is portrayed, in my opinion, as a rare asexual character in a genre that more often than not seems to center around the hero getting The Girl (if not lots and lots of girls) as a prize at the end of every solved mystery.
But Sherlock Holmes is also one of the most famous literary characters I can think of who is also regularly the subject of slash-fic romance with his sometimes live-in roommate Watson, despite Holmes' (in my opinion) carefully portrayed asexuality and Watson's romantic devotion to his wife. And if you'd asked me a few months ago what I thought about the tendency to slash-pair Holmes/Watson, I would have said it really isn't my thing. But then Melissa McEwan said something that made me reconsider my position.
A few days after I very badly communicated in a Slacktiverse thread that non-canon pairings weren't really my thing because of this hang-up I have with Sherlock Holmes, Melissa McEwan posted on her blog a trailer for the upcoming movie "The Hobbit". And because Shakesville is a feminist blog with a heavily female readership, a delightful conversation sprung up about Tolkien's "Lord of the Rings" epic and the relative lack of female characters therein. In the ensuing discussion, I confessed that as a child I had accidentally read hobbit Merry and elf Legolas as females, because I had assumed that someone in an epic adventuring party needed to be female. I also offered that I had been so upset on the realization that there were no women in the LOTR adventuring party that I wrote a truly execrable fan-fic about "Gandalf's daughter". I pointed out that this character I had written was a silly and one-dimensional device intended simply to follow the party around and provide a 'hook' for me to sink into the narrative. Melissa responded by saying:
It doesn't sound silly to me.
It sounds like building a room of one's own (so to speak, and with all due respect to Ms. Woolf) within a literary space.
If feminism is learning the cultural architecture to build rooms of one's own wherever one finds the need, and I believe that it is, then creating a character for an author who couldn't be arsed to create one for you is an act of feminism, not silliness.
"Creating a character for an author who couldn't be arsed to create one for you is an act of feminism." I'd never seen it that way before, and now that it had been said, I couldn't see it any other way.
We live in a world where popular fiction, if it wants to avoid being shoved into the "issues" section, frequently presents a world of monochromatic characters in hetero-normative relationships. Female characters, no matter how "strong" or competent, are more often than not shoved aside in favor of male protagonist pie. Minority characters -- people of color, people with disabilities, people with body fat -- are included rarely, if at all, and almost never as main characters and almost always with glowing neon "issue" signs over their heads. Non-neurotypical characters, including people with multiplicity, are rarely included and almost inevitably whodunit. QUILTBAG characters are frequently silenced or absent altogether.
Of the 100+ books I read last year, only two of them even mentioned gays and lesbians, let alone the other letters in the alphabet soup. One of those books was a non-fiction book with the word 'gay' in the title. The other was a history book about U.S. presidents. The last fictional book I read with a bisexual character was Steig Larsson's "The Millenium Trilogy", and the bisexual female protagonist largely prefers men. I cannot remember reading a fictional book with undecided, intersex, transgender, or asexual characters that wasn't explicitly an "issue" book. I can't remember recently watching a movie or television show with QUILTBAG characters where the issue wasn't largely included to drive ratings or to serve in place of actual characterization except maybe, maybe, True Blood's Lafayette. Who, in addition to being gay, is also a drug dealer and a prostitute (and a perfect example of why television writers need to read up on Wicca before throwing it into a show with Vampires and Werewolves and Fairies as though all of those things is just like the others). Well-adjusted, happy QUILTBAG characters seem to be as rare in mainstream fiction as unicorns.
If creating a character with an identity similar to yours, for an author who couldn't (for whatever reason, because I fully recognize that It's Very Complicated) create one for you, is an act of positive subversion, does it matter if the character is a new one a la Gandalf's Daughter or a new interpretation of an existing one a la Sherlock Holmes?
I'm not sure that it does matter, at least as far as fan-fic goes. Possibly the full power and finance of Hollywood does not need to be directed into turning Hamlet gay for a Hamlet/Horatio pairing, or Mary Bennet lesbian for a Mary Bennet/Charlotte Lucas interpretation, or Odysseus transgender and his classic odyssey through space-time reinterpreted as a modern odyssey through self-identification. With great power comes great responsibility, and with the power that big-budget movie makers wield to create definitive renditions of text, possibly they have a greater responsibility to cleave to the author's perceived intent.
But fan-fic is written largely by the powerless and shared widely among those who are not looking to permanently change the original work. The goal of fan-fic is almost always to enjoy and savor the original piece, but with a few tweaks here and there to make the story more approachable for the fan and their readers. And with that in mind, I now have to think that fan-fic and slash-fic can be positive acts, acts that take an existing work and say, "I know you couldn't include a person of my gender, a person with body fat, a person of color, a person who identifies as QUILTBAG, a person of my religion, or a person of non-neurotypicalness in your narrative. But I love your narrative enough that I'm going to write a fan-fic to fix that for me. And I'll share it with anyone else who has the same needs as I."
I now think that can be a good thing, a positive subversive act meant to signal to the larger world that we -- the non-white, the non-male, the non-heterosexual, the non-neurotypical, the non-body conforming -- are here and we are not going away any time soon. I think it can be an act that signals that we are not only building rooms of our own in new houses that we build from scratch, but we are also building additions to the older, existing houses that we've been given to inhabit.
It's More Complicated Than That, of course. Fan writers aren't always automatically on the side of angels, and things become more muddied when the author of the original work is still alive and the work is still under copyright. (This is one of many reasons why the examples in this post are all works in the public domain.) There's the question of author intent to consider, and how much that author's intent should weigh on the interpretation of the work in question. There's the question of how the fan-fic is written, and whether the newly added elements are 'merely' subversive or actively harmful. (As with, for example, fan-fic that portrays intensely triggering, disturbing, or illegal elements.) Like almost every issue there are shades of gray, and reasonable people are going to disagree here and there.
But considering all that, and purely as my personal opinion, I think that when crafted with love and respect and when shared with the intent to expand and embrace, fan-fic and slash-fic can be positive subversive acts. And I am mostly in favor of that.
Feb 17, 2012 2:54:28 PM | Ana Mardoll
@Rowen: I suspect that part of the problem with this discussion is that people are imputing/confounding one poster's opinions with another.
To me, personally, much of the argument about fanfiction sounds as follows:
I don't wanna follow the law. You can't make me. And besides, if you can't prove that it really, really, really hurt someone I like (as opposed to some scuzzy rich person I don't like or someone who doesn't share my politics) then I not breaking the law -- I'm being subversive. So there.
Which isn't really an intellectually persuasive argument.
That said, I have complicated and conflicting feelings about particular instances / circumstances and works and even have a soft spot in my heart for particular pieces of fan fiction.
Posted by: Mmy | Feb 23, 2012 at 02:19 PM
@MercuryBlue: Yay access to LexisNexis! (Project Muse is my personal favorite when it comes to databases. Is it sad that I have a favorite database?)
Posted by: sarah | Feb 23, 2012 at 02:30 PM
I don't wanna follow the law.
Meanwhile much of the argument against fanfiction sounds to me like "you kids get off my lawn!" when we're not on the lawn, we're on the sidewalk, which was put there for everybody's use including ours and nobody's allowed to keep us off it. US copyright law does have fair use provisions. Which I am going to research.
Posted by: MercuryBlue | Feb 23, 2012 at 02:31 PM
@Beroli: Relevant, if we're discussing whether it's possible for fanfic to be harmful.
Yes, and JMS once changed a plot line in Babylon 5 because he read a Usenet post about what he was planning on doing that was a little too accurate and he was worried about being sued. That post was not 'fanfic', just the normal fan guessing.
So there is a real danger of writers _reading_ fanfic set in their own works, that I must agree with. Of course, this is a fairly limited amount of 'harm', as no one is making writers do that. (I.e., it's the 'Selling people a soft drink' level of harm, which in a free society, we live with.)
But, of course, as fanfic is technically illegal, there's actually an easy solution to this: The author should require all fanfic writers to give the author the rights to use the fanfic (And ideas in it) in their work, either for nothing or for just a token amount. (And that would make a lot more sense than the 'I know I'm violating copyright' header that for some reason people think is a good idea.)
Eric Flint has done something like this with his 1632 universe, I think.
Posted by: DavidTC | Feb 23, 2012 at 02:33 PM
I admit, for my part, I...don't really care that much about the law in the abstract. I'll follow it when it makes sense or when there are serious consequences, but I drank plenty before I was twenty-one, fucked plenty before I was eighteen, smoked a little pot in college, and so forth. Yeah, illegal. And yeah, I could've tried to change the laws, but it was easier to get around it. Legality or illegality isn't really a moral force with me.
Posted by: Izzy | Feb 23, 2012 at 02:37 PM
@Mmy,
That makes a lot of sense. Back in the day, I had a dinky geocities webpage to display my art. I really liked this one artist (Ruby. . .something? She did a lot of work for Storm Constantine's Wraeththu series), and wanted to use one of her pieces, modified a bit, as my floating background. So, instead of just doing that, I e-mailed her to see if it was ok, and she said no. And you know what, I was fine with it AND it forced me to look at my OWN artwork, and say, "You know what, I'd prefer to showcase my OWN work (even if you could legally say that by photoshopping her work, I was making it mine), and will use one of my OWN pieces as the background."
There's a point in there somewhere. More then one, I think.
Posted by: Rowen | Feb 23, 2012 at 02:37 PM
@MercuryBlue: US copyright law does have fair use provisions. Which I am going to research.
And who exactly in this conversation was claiming it doesn't? In fact we have had conversations about if several times. If you are interested in researching it a good place to start is the Copyright and Fair Use webpage of the Stanford University Libraries.
smoked a little pot in college, and so forth. Yeah, illegal.
I have only recently encountered the theory that hemp was outlawed in the US because it represented a threat to the cotton and paper industries. I've no idea how plausible that theory is, but if it is correct and if we consider that corporations now can basically buy their own politicians (thanks US Supreme Court! you guys are AWESOME! *lolsob*), then, no, we probably can't get the laws changed.
It's just getting nicer and nicer to live in Gideon. /derail
Posted by: AnaMardoll | Feb 23, 2012 at 02:43 PM
@MercuryBlue: Stanford University also has a really good online chapter on all of the issues of fair use -- which is kept very up to date.
@Ana: Yeah, tell me about it.
Politics...I don't even know, I need to go home and drink.
I wonder if it's an American thing, or an American/liberal thing, to assume that the law or prevailing system of rules a) is going to be against you, b) is going to be unfair, and c) therefore has no moral weight, except for the really obvious "don't kill people" stuff? Or maybe it's just me: I tell the boyfriend stories about school and past jobs, and he gets all shocked and spluttery and "...but, but RULES..." and I'm all "...made to be broken?"
I think it's a lack of privilege thing, Izzy. It's like what a lot of POC in the U.S. have been saying about how the white Occupy protesters are surprised when they experience police brutality. If you lack privilege, things are stacked against you, and that includes the law. Therefore, you don't trust the law.
Posted by: kisekileia | Feb 23, 2012 at 02:53 PM
@kisekileia: Hm, hadn't thought of that.
I usually consider myself pretty privileged. But it's true that my first assumption regarding any law or regulation whose point isn't completely obvious is that it either serves a particular corporate agenda or exists because of someone like Tipper Gore or Jerry Falwell.
I can certainly be persuaded of a given law's social value, of course. But my default is to assume stupid and/or evil, because...well, America. Where you can go get shot but you can't have a beer beforehand.
[TW: Painful Medical Stuff]
Down here (Texas) there's definitely a Conservative/Liberal divide between Lawful/Chaotic. My parents are extremely conservative and they are exceedingly deferential to authority. (As they get more liberal, that falls away, to the point where I'm not sure which is coming first, chicken or egg?)
I remember my Dad being pulled over for (apparently unknowingly) speeding while rushing me to the Emergency Room at 16 yo. Dad quietly sat there and took the ticket and then drove the correct speed the rest of the way while I was screaming from pain in the backseat. This did not strike any of us strange at the time.
We all three now think that incident was... bizarre to say the least.
[TW: Police Brutality]
...and every time I tell that story, someone says "Why didn't your Dad just ask for a police escort to the hospital?" and I have to explain Privilege and the fact that once, in the middle of the desert that is the Oklahoma/Texas border, I had a cop literally threaten to shot me because I failed to pull over as quickly as he wanted.
Really? So that's your only objection to it, that's it's illegal?
See, there's a lot of us on the 'pro-fanfic' side (Which is not a good term, but whatever) who agree it's illegal. I joined this discussion because people were talking about having _moral_ issues with fanfic. In fact, the article itself is about moral issues with fanfic, and not addressing the legal issues at all.
Among those people with moral issue is, I must point out, you, who insisted in your very next sentence that it does harm people. Or, at least, you had an objection to people who said it didn't.
You want to make this entirely about laws, go for it. Almost everyone will agree.
This discussion exists because some people's hobbies were called _harmful to others_.
In high school, I had a local cop who'd swing by the church group I attended and give us tips and pointers on how to deal with "things."
So, once, I was driving home, and I was driving my grandparents' pick up, because my car had been totaled. I thought I had enough day light to get home, but I didn't, and the headlights wouldn't come on. So, I stayed in the far right lane, and put on my hazard lights. A cop pulled me over, but there was nowhere to pull over, so I turned on my cabin lights, and waved at him, and pulled over into the next parking lot I could find, as per my cop friend's instructions. BOY was he FURIOUS that I didn't immediately stop in the middle of traffic for him. He searched the car, looking for *something* and was getting more and more upset that all he could find was an empty cattle feed bag and some toilet paper.
It could just as easily be a privilege thing: you're used to the law working in your favour, and so are genuinely surprised when someone tells you that this time it doesn't. I've certainly seen privileged people get bewildered and outraged in other contexts when someone points out that no, actually the law does not support you getting everything you want.
Posted by: Kit Whitfield | Feb 23, 2012 at 03:20 PM
Izzy, you don't have the privilege of living in a country whose political system hasn't been just about hijacked by corporate interests and whose citizenry isn't half insane with authoritarianism. People in situations like yours can either internalize the oppression they're experiencing and start thinking it's justified, like Ana's dad in the example she just gave, or rebel, like you.
So I wrote a really long impassioned rant about Lawful vs. Chaotic, etc., etc., and then deleted it, because 'do I really want that out in cyberspace, where it'll live forever? And might be used against me at some point?'
I don't trust authority figures. ESPECIALLY not when they insist 'you should trust us because we know what's best!' I've been brutalized by authority figures, some of whom had the law on their side, and some didn't. Somehow, The Law didn't help me survive any better. I imagine I have a lot of company in that experience.
Posted by: Laiima | Feb 23, 2012 at 03:22 PM
@Ana: Ye gods, that sucks. I'm sorry.
The one or two actual police officers I've dealt with have honestly been very nice. (I'm thinking here of the one who pulled me over in NH and then was very patient and understanding when I explained that no, I wasn't drunk, I was in a rental and my GPS wouldn't attach to the ceiling and I was looking at my lap to find out where to turn...not one of my brighter moments. I do not drive a whole lot.) But I've definitely heard stories, and the body of law in the US contains enough ridiculousness that something being illegal doesn't really make me think twice about its morality.
*sigh* I have had this precise thought about a hypothetical Lawful/Chaotic blog post.
@Rowen: One of the things that really scares me about driving is whether I'll misread nonverbal signals from other drivers like the ones cops send to get you to pull over. I don't really understand how cops indicate to a specific other car that they want that car to pull over without using words. I would have to have that explained to me before starting to drive alone. There are hazards to living while autistic, and misreading nonverbal cues from police is a big one, especially for people who lack privilege in other ways.
TW: Underage sex
@Kit: True.
But in this case...I don't know. I think it's telling, for instance, that a lot of porn here advertises that its models are "barely legal". Like breaking the law in minor ways, or coming close, is almost a status thing at times, and certainly isn't a big deal for most people I know.
@kisekileia: Quite possibly. Although I should note the possibility that I'm just damn contrary-minded; my parents could tell you stories about my youth. ;)
@Izzy, it's alright, but thank you.
The 'funny' thing is that my family is about as privileged as you can get in this context. Middle-class with the relative wealth that implies, whiter than white, Southern and with the appropriate accents. And even we can and have been subjected to the *threat* of police brutality. I can't even imagine in other contexts.
And I have had lovely experiences with police officers. But I've had way too many experiences with cruel ones to have any faith in the system in general. (Am now cataloging all encounters with police in my life and wondering if my number is high.)
@Ana: I'm adding that to my mental list of reasons why I will never live in Texas. There are already many. For some reason, most of the worst people I've encountered online have been from there, although I've also met some very nice ones (like you).
I would greatly appreciate it if those of us who generally think -- absent specific reasons contrary -- that following the law is a Good Thing, even if we don't agree with the law in question, because that's part of the implicit social contract of living under the Rule of Law [takes deep breath] were not automatically assumed to political conservative authoritarian conformist sheep, incapable of seeing the inherent subversive Powa of Defying The Man.
Posted by: hapax | Feb 23, 2012 at 03:34 PM
Kisekileia,
There's general cues, which can sometimes get mixed. Like most people I know get a little stressed the moment we see those red and blue flashing lights behind us and relax the moment the cop car changes lanes.
hapax, I'm sorry if I gave the impression that I was making that assumption. I'm well aware that there's a big difference between the crazy authoritarian politics in the U.S. right now and people like yourself who just value following the law.
Rowen: So the cue to pull over is when a police officer is right behind you and has red and blue flashing lights? Or is there more to it than that?
(TW: swearing)
I agree with Kit's assertion of overabundance of privilege as a perception filter.
I split my time between New York and Boston, professionally and personally. I grew up a bit north of Boston where there's an undercurrent of blue-blood "we were here first so we make the rules." It's a strange kind of pointless snobbery. (Oh, your ancestors fought in the American Revolution? Well, my ancestors were on the Mayflower.) I have no idea why, but this sort of nose-thumbing has led to the knee-jerk response to law breaking as "Because fuck you, that's why." Said with the Dowager Countess's utter disdain, of course. I suppose there's so much communal privilege involved that the laws simply don't apply to us. Other people, yes, but not us.
On the other hand, in NYC the power is so obviously split down race/class lines, people can easily point to the systemic disparity to hand-wave law breaking. "They won't let me have it, so hell if I'm not going to take it." Now that corporations are people and the banks have screwed over millions with impunity, there are times when the city feels a bit like a powder keg.
Posted by: Amanita | Feb 23, 2012 at 03:51 PM
Usually. Sometimes they have a megaphone that loudly announces "You in the Honda Civic. Pull over!"
Well, I don't think you could possibly accuse me of not being liberal, and you certainly could not accuse me of being un-American, and this is certainly NOT how I feel, not even a little. In general, my feeling is that the laws (rules) are probably there for a reason, and unless there is a very good reason not to, one should follow them. It is probably a factor that I've never really had any encounters with the police (actually, thinking about it, none whatsoever), and I'm largely uninterested in common illegal pursuits most teenagers or young people involve themselves in (drinking, for instance, has never attracted me in the slightest).
Rather like hapax, actually.
Posted by: truth is life | Feb 23, 2012 at 03:56 PM
@Amanita: There are indeed places that are powder kegs right now. My own personal experience in the US (living there for decades but it is a big country so I am not going to generalize my experience) is that the people I knew who were comparatively privileged and aware of unfair laws did not often enough use their privileged position to fight for changes in those laws.
My own political experience / background is non-American and in my own life (and the lives of people I know) what you did when you became aware that there was something wrong with a law is to work to change it. I understand that that has become progressively more difficult in the US as money has had an ever greater (or more open) influence on the political system in the last several decades.
I am not saying that no Americans are doing things like that (acting truth to power) but if all the people I knew who complained about the system had acted together to make changes then I think the US would be a better place today than it is.
I'm adding that to my mental list of reasons why I will never live in Texas. There are already many.
Aw, I'm sort of sorry to hear that. I mean, I'm NOT sorry because I'm glad I can help people make useful decisions about their lives, so that's good. But I am sorry because there are a lot of things I love about my state and I never want to leave, to be honest. I love my state.
But I do get a little sorrowful that I can't just fix the laws, or the authoritarian atmosphere, or the fact that our governors like to screw up the country as a personal hobby. I do my best to teaspoon, but... at the end of the day, no, I can't change anything. I wish I could.
I love Texas. But sometimes Texas doesn't love me.
Mmy:
A) There's a big difference between coming up against the *civil* law of copyright, where the worst that's likely to happen is that you receive a stern lawyer's letter and you're forced to take down your fanfic, and coming up against the *civil* law where you might actually be shot by armed police, even if you're innocent, as the residents of Berkeley know all too well. The residents of particular colors, anyway.
B) Copyright law, hell, *all* law is written to serve the interests of big, white-dominated corporations and bosses, not creators or the woman on the street. The naive view that not wanting to break the law deserves condemnation in and of itself is a useful position only for people privileged enough so that the law is mainly on their side. Something being illegal doesn't necessarily mean it's bad. I think something has to do harm to be bad, and I don't see any evidence that non-commercial fanfic does any serious harm. Nor is it some kind of subversive or revolutionary act. It's just a harmless diversion and in some cases a training ground.
Posted by: Angry Black Woman | Feb 23, 2012 at 04:02 PM
@kisekileia -- that's the customary signal, yes.
However, if at all possible, cars should pull over *whenever* they hear sirens or see flashing lights, because that means that emergency vehicles (police, fire, ambulance, etc.) are in a hurry, and it is in everyone's interest to let them get to where they need to go as fast as possible.
If it's a police officer who is interested in me, specifically (even if zie isn't right behind me), they will then pull immediately behind me.
(Or, of course, an officer may NOT be in a car, in which case zie will have to use hand signals to make zir intentions clear; but such signals usually be pretty obvious)
Which is not to say that a police officer may not abuse zir authority to say "I signaled her pull over and she didn't." But according to the police officers among my friends and family, that *would* be an abuse.
Recent decisions about abusive tasering to the contrary, citizens aren't legally obligated to read a police officer's mind. (Of course, it may take several court cases ... and years ... and replacement of the torture-monkeys who currently soil the benches of the highest courts in the US ... to have that principle reaffirmed.)
And I will add to that, I voted for Obama with a happy heart because I thought he would do the right thing by women. Texas had more blue votes in 2008 than it's ever had before, iirc, and I was part of that beautiful purple color. I teaspooned relatives, friends, co-workers, and lovers into voting for Obama (or at least telling me they had).
In the end, it didn't make a damned bit of difference. I wish it had. We've had more hostility to women's bodies and rights than we've had in decades and my president isn't interested in speaking up against it.
Sorry. Didn't mean to somehow derail into politics. But...uh...laws. Complicated. Pretty sure that certain kinds of fan fic are protected Fair Use, but honestly IANAL.
Huh. Might be my crowd, then, or a regional thing (I'm also in Boston) or just me. Who knows? Anyhow, was a random hypothesis, sorry it came off badly.
I've always considered "because it's fun" to be a pretty good reason. I mean, I didn't break the law for the sheer "law bad, Hulk SMASH" of it, but...because the appletini looked tasty, or I had better things to do than sixth-period phys. ed, or I'd done my work for the day and had nothing else going on, or whatever.
(I am now reminiscing that there was a comment on my blog in...June? July? around then, that claimed that people who were trying to outlaw birth control were a fringe group that had no political power. Whooooooops.)
@Angry Black Woman: Copyright law, hell, *all* law is written to serve the interests of big, white-dominated corporations and bosses, not creators or the woman on the street.
Buzz, ding, the gong goes off. Got it wrong.
No copyright law was not created by corporations. Actual authors who were actually being ripped by the actual businesses of the day fought really, really hard to get copyright protection.
And then Disney decided "Steamboat Willie" is never going into the public domain.
@mmy, I thought she meant "as it is now written". But I am not so good on reading comprehension today.
@Mmy - sure, back in the days when copyright was originally brought in and it had a 25 year term. But all the subsequent changes to copyright law: 70 years + life, the DMCA, SOPA/PIPA, have been corporate driven while many of the creators have looked on in horror.
Plus, even the Mighty Whitey corporations don't actually use copyright law to shut down fanfics any more. There's a huge amount of fanfic and even whole original episodes on YouTube that could be taken down with the DMCA, but isn't, because the corporations realise that it's not actually in anybody's interest to do so. So again, whether it's "illegal" or not is the last thing you should consider.
Because "all law WAS written" would be a statement of creation but "all law IS written" would be a statement of the current state of affairs. In my head. Which is experiencing technical difficulties.
@MercuryBlue: The fact that corporations have taken advantage of the law (more specifically the fact that American corporations have been able to distort copyright law to their advantage) doesn't change the fact that the Berne Convention arose out of the concerns of authors who wished to protect their own moral, financial and legal rights.
I am naturally suspicious of police officers, mainly because 1)the Philly police department's a bed of corruption and 2) I had some bad experiences with cops when I lived in Camden (across the bridge from Phila).
@Mmy
(Using the general 'you.') Part of the problem with growing up steeped in privilege is that when the scales fall away, you're just staggered at the sight before you. It can be so overwhelming that it can lead to a sort of inertia that you have to mentally shake yourself out of.
I was fortunate enough to have relatives who were actively "fighting the good fight" (ACLU, free clinic volunteers, what have you) but I was still extremely sheltered. A liberal college and some amazing mentors really helped along the way. (Rule 1: shut up and listen)
I agree with you that if everyone had banded together things would be different now. "If" is just a concept, though, and there's nothing we can do to change "if" to "did." All that inertia has worsened the situation from rolling a boulder up a hill to rolling it up a mountain. I wish I knew how we could fix that, but I'm at a loss. So I do what I can and hope like hell that even teaspoons can make a difference. Honestly, though, some days I really have my doubts.
Hmm. That took a depressing turn. Sorry.
@Ana Mardoll: I honestly don't care which she meant. Copyright law did not, and does not, exist solely to protect corporations.
Copyright is the only thing that now protects the rights of the authors. Take it away and the corporations will still do fine, thank you. It is the individual authors who will suffer if copyright ceases to exist.
Don't take your eye off the ball.
Corporations actually often find it more useful to use trademark law to protect their interests.
I didn't, and I don't think Angry Black Woman did either, say a word about how copyright law originated. As it stands now, US copyright law serves Disney and the MPAA and RIAA.
I am fairly certain that, oh, speeding and drunk driving laws, environmental regulations, laws against domestic abuse (just off the top of my head) were not and are not created to serve the interests of white corporate CEOs (except so far as they like to get home safely, drink clean water, and not be beaten by spouses, just like the rest of us.)
In the narrower field of copyright law, of course there are some aspects of the law that serve corporations against the interests of creators. That doesn't mean that the entire concept of copyright is tainted; any more than my disagreement with the speed limit on the bypass past the mall (which was altered to facilitate out-of-town mall traffic, not for the local commuters) means that speed limits are inherently oppressive.
Yeah, exactly, I'm not saying copyright didn't originally serve a useful purpose, and I'm not saying it should be abolished altogether. But the fact is it's been amended for decades to serve the interests of corporations, so the fact that an act is against the law isn't a reason to do it. If you have an instinctive sense that the law is on your side, then you need to do a privilege check.
Even corporations don't apply the existing civil copyright laws. Whoever owns the Harry Potter copyrights doesn't take down fanfics. Hasbro doesn't even take MLP:FIM episodes off YouTube. Because they realise that the letter of the law isn't even in their own corporate interests.
I honestly don't care which she meant. Copyright law did not, and does not, exist solely to protect corporations.
I... I don't feel like this statement exists in conflict to what Angry Black Woman said. At least, I personally agree with both things -- that copyright law does not solely protect corporations, but that it is written with their interests in mind and that *that* needs some remedying of some kind. In my personal opinion. :)
I am fairly certain that, oh, speeding and drunk driving laws, environmental regulations, laws against domestic abuse (just off the top of my head) were not and are not created to serve the interests of white corporate CEOs
Environmental laws are certainly amended due to the lobbying of white corporate CEOs.
But you're right about speeding and drunk driving and domestic abuse laws: they're not written to benefit white CEOS, they're just *selectively enforced* in ways that exempt rich (usually white) people.
@MercuryBlue: Repeat after me.
Corporations have many, many, many ways of protecting themselves. Copyright is just one of those ways. Take away the copyright protection and corporations will do just fine.
Individual authors have very, very, very few ways of protecting themselves. That is why they worked so hard to get copyright.
I would not be at all surprised if major corporations were not secretly in support of the "anti-copyright" movement and indeed may have "moles" out there about the so-called "information must be free" movement. Because copyright law is about the only thing that protects individual authors from behemoth corporations that are monopolizing the spheres of public communication.
Leave RIAA and MPAA out of it -- that is a different argument and for another day.
I would point out that copyright laws are, right now, protecting everyone who posts comments in this thread.
@Angry Black Woman -- I agree with you that selective enforcement is a serious issue. Do you have any good ideas about a remedy?
So what you're saying is we should pay attention to the imaginary corporate "moles" in the anti-copyright movement (name one?)
But we should ignore the massive corporate-funded lobby to extend copyright enforcement, the RIAA and MPAA, because that's a "different argument"? Why is it a different argument? Except for the fact that it kind of militates against your idea that corporations want *less* copyright law, and that's embarrassing for you.
Everyone who can afford legal representation and actually thinks that their comments in this thread have some kind of monetary value (ie rich, crazy people).
Revolution.
What I THINK is being said is that by coming at copyright laws with a scorched earth policy because Disney doesn't want to give up Steamboat Willie is probably not going to hurt Disney. It IS going to hurt the smaller authors and artists who don't have that much money and won't be able to stop people from ripping off their work and distributing it on the wildly free roaming internet. This goes double if there's money involved.
Or, in a less conspiracy-theory way, the "information must be free" movement was started, sustained, and continues to have its heart in computer programmmers, that is the profession where the presence of copyright is probably most prominent next to actual writing, where the products are almost always the product of teams of people rather than a single "author," where relatively few (outside of the programming community) imagine themselves to even have the capability to produce product, where corporate interests are more thoroughly served by copyright than in perhaps any other (given that a large proportion of non-corporate products do not have anything approaching a conventional copyright license), and where a large proportion of the profession has libertarian views...
This, I think, is far far more than enough to explain why that movement behaves the way it does. It's steeped in an environment where author's rights simply don't matter, there's no such thing as a single author for most things anyways (Linus might have *created* the Linux kernel, but hundreds of people have contributed to it), where effectively subverting or undermining copyright laws have worked very well, where most corporate interests hold to conventional ideas about copyright, and where most people assume that "the government" ought to be kept out of most things anyhow. From their point of view, copyright *is* pointless, arbitrary, serves only corporate interests, and has no positive effects. It would be more surprising if they were in favor of it.
@Angry Black Woman: So what you're saying is we should pay attention to the imaginary corporate "moles" in the anti-copyright movement (name one?)
No I am saying that we should be aware of the fact that just because people proclaim that they are brave anti-corporate crusaders it does not make them so.
And I am saying that many of the things that people imagine would be devastating or damaging to corporations will not be a problem for them at all.
And I am saying that there are many people who are saying things that the individuals THINK are anti-corporatist and which actually will do nothing at all to hurt the corporations.
And I don't think it makes any difference whether someone is a *mole* or not if they are ignorant of history and adolescent in their understanding of economics. I doubt corporations right now need to spend a cent to encourage the anti-copyright movement that is undermining the rights of individual authors -- the movement is doing it all for free. Way to go people.
But then, I almost never agree with scorched earth policies.
Let me give a concrete example -- AWAY from copyright law.
Last week I was rear-ended while driving, causing significant damage to my car. The driver who hit me was a young Latina.
I was in fact quite hesitant to call the police. This police in this particular town are NOT well-known for tolerance towards the crime of "driving while brown." A couple of years ago, another Latina almost died of neglect while in police custody.
And I could probably afford to pay for the damage more than she could.
But... this driver also admitted (to me) that she had been texting while driving. She had been driving without a license, without tags, and without insurance (I'm probably going to end up paying for repairs anyhow.) She also told me that she was pregnant and "having pains."
I couldn't call for an ambulance without the police arriving. Even if she didn't need medical care, if I had just waved the whole thing off, would she continue to text while driving? Would I be responsible for the next person she hit, and maybe hurt or killed?
I finally called the police, and stood outside my car and watched their interaction with her (which was very professional, as far as I could tell) until the ambulance pulled away.
Was that the *best* decision? I don't know. How would you have handled it?
Or, in a less conspiracy-theory way, the "information must be free" movement was started, sustained, and continues to have its heart in computer programmmers,
*waves* Adding to that, many programmers love to put code snippets out on the internet to help other programmers. There's really a surprisingly finite way to solve certain coding problems. But then the corporations who own Programmer One's time (and, presumably, creative output during that time) and the corporations who employ Programmer Two's time and creative output get into a major legal battle because One and Two shared information.
It's a mess. We have to deal with this at work all the time. We have one person for every thirty programmers whose JOB it is to google code snippets and make sure they didn't Come From The Internet. I don't know the answer.
Now, this post is getting away from me, but there's another point I have to make, or at least bring up. Why fan fiction? Why, for example, does one have to write a Lord of the Rings around Gandalf's daughter or whomever, for whatever reason? Why not use that as a spring board and do something like Jacqualine Carey's Godslayer books.
Rowen, you will find my answer here.
Posted by: Deird, who writes things | Feb 23, 2012 at 04:53 PM
You think the best answer in the situation I just described would be for me and the other driver to pull out our guns and storm City Hall?
@hapax: Seems as good a decision as I can think of, under the circumstances. And you were awesome and responsible, there.
I don't, myself, think that all laws are bad or purposeless. We need to live in a community; that's how things go. Sometimes the benefit of a certain law is not even that people will obey it but that they'll be cautious about disobeying it.* That's fine.
It's just...saying something's illegal or against the rules just doesn't work very well as an argument against it, for me, in and of itself. Seen too many people break rules with no harm done to anyone; done it myself too many times to the benefit of pretty much everyone concerned.
It's sort of an evaluative process: why does this guideline exist? What's the harm in getting around it? And then a balancing process.
*I remember a LJ conversation about NC-17 writing/artwork/blah, a while back, wherein some high school student was very very upset that she had to click an "Are You 18" button to see the good stuff. There was a "When you were my age, didn't you..."
And half of the people in my age group were all: "Sweetie, when we were your age, we *knew how to lie*." (I myself was eighteen for about six years. It was funtacular.)
But if the "anti-copyright" (more accurately, anti-dacronian enforcement/licensing) movement is so beneficial to corporations, why do the corporations spend so much effort and money lobbying to oppose it? Why, when authors specifically ask for their works to be available under Creative Commons or DRM-free, do the corporations oppose that?
Also, the supposedly "anti-copyright" programmers are usually arguing for the adoption of licenses which may grant additional freedoms, but still require copyright law for their enforcement - e.g. the GPL. You'll often see software people using copyright law to force corporations to release modified versions of GPLed code.
So they're not actually completely anti-copyright authors/programmers at all, they just recognise that a less restrictive version of copyright is more in line with the interests of creators.
@Izzy -- hah!
True story. About three years ago (I think?) hapaxspouse discovered that hapaxson had been using the family computer to surf (very mild soft) porn.
As The Mom, I was designated to be the person to "talk to him."
My very first statement was "Seriously? You never learned how to clear the cache?"
Hapax, have I told you today how much I love you? LOL.
@hapax: Okay, you? Rock.
Admittedly, that was also my first thought when the Anthony Weiner scandal broke. "Tony. Honey. Let's talk about a little thing I like to call 'separate Twitter accounts'."
"Seriously? You never learned how to clear the cache?"
Hee! I may have learned the benefits of clearing the cache after my teenaged brother laughed at me for reading NC-17 fanfic of The Matrix on the family computer. I...really hope my parents never thought to check, LOL. They would have been so traumatized.
Posted by: Nenya | Feb 23, 2012 at 05:22 PM
TBAT reminder: Sockpuppetry and spamming are violations of community posting rules, and grounds for immediate deletion of postings.
Posted by: The Board Administration Team | Feb 23, 2012 at 05:26 PM
And by sockpuppetry and spamming, you mean, writing a long post that proves the mods wrong. Message received and understood, Miss Scarlett ma'am.
Posted by: Angry Black Woman on her phone | Feb 23, 2012 at 05:31 PM
Is anybody interested in links regarding m/m fanworks and women's alleged appropriation of gay male experiences, or has the conversation moved too far on?
@ABW on her phone: Did you post a long message that didn't make it to the board? Happens to people all the time (ask around.)
Yeeeess massa
@MercuryBlue -- I'd be very interested in the appropriation links, actually. It's a question with implications way beyond fanwork (I've been struggling with purchasing m/m manga and fiction for the library)
I'm not pre-judging them, but are any of them written by gay male writers?
I'm... maybe? I'd probably read it. Having said that, I'm a little anxious about cultural appropriation because I feel like I've seen it used to say that authors who aren't X shouldn't be allowed to right X. And that argument is a little... well, I don't want to say 'triggery', but it makes me very uncomfortable.
I think there's a difference between someone saying "You know what my novel needs? Magic Native Americans who provide plot exposition about White Protagonists!" and someone saying "You know what? Let's make Jennifer a Native American because my god there are a lot of white people in my novel. And maybe Bobbie can be Jewish."*
I'm also very anxious of any argument that says that erotic m/m work was written as "porn" for the female author. I'm sure that this does happen, but I'm also very certain that women tend to be hyper-sexualized in my culture and that ANYTHING I do is frequently impugned to have sexual motives behind it.
*Full disclosure: I feel uncomfortable by these arguments because that's pretty much how I write. So there's that.
shouldn't be allowed to right X.
"shouldn't be allowed to write X."
God, it's been a day. Sorry people. :(
@Angry Black Woman, if you comb through the threads a bit, you'll actually find a lot of people complaining about comments they've made that either got caught in the spam trap or vanish completely. It really does happen a lot with TypePad, and it's indiscriminate with regard to who it affects.
@kisekileia: if you comb through the threads a bit, you'll actually find a lot of people complaining about comments they've made that either got caught in the spam trap or vanish completely.
Yes, and generally people whose comments are lost in the spam trap (or disappear into the mystery of cyberspace) are less rude when asking someone else to look through a pile of vile pornographic spam in order to find their lost comment.
@Ana -- yeah, that's why I put in the "I'm not pre-judging" bit.
I don't like the "Non-X people shouldn't be 'allowed' to write about X people" either.
(Or course, ANY line that includes the words "people shouldn't be *allowed* to write" tends to make me terribly twitchy, which is why I'm ambivalent, to say the least [multivalent?] about fanworks as a whole)
I will also say that, as a Kinsey 2, I would probably have an easier time writing a m/m pair than a f/f pair because:
1. Our culture normalizes male experience to the point where I can write a decent m character.
2. I have intimate experience with desiring the male body.
3. I do not have intimate experience with f/f pairing in Real Life, and what I have seen was almost certainly written for a Male Gaze and was very likely colored by that.
^^ More reasons why a woman writing m/m seems complicated to me. :)
@Hapax, this is kind of a derail, but every time I remember that you're a librarian I want to hug you. We have really nice librarians here that I deal with when I send in donations for ebooks, and they've been struggling with the big 6 and ebook issues and I just... love you all in a very general "you aren't appreciated nearly enough" kind of way.
@Mmy -- well, I know it reflects poorly on me, but personally I have less problem with the loliporn than the linkspam. And the totebags. (What is it with totebags, anyhow?)
At least the porn spam tends to be *short*.
@Angry Black Woman on her phone: Material released from the spam trap can be found on the board "at the time" it was originally posted.
*blush* Thanks, Ana, but I'm not the only librarian here. There's ohiolibrarian, of course, and Silver Adept, right? And who else?
@hapax: well, I know it reflects poorly on me, but personally I have less problem with the loliporn than the linkspam. And the totebags.
Well, truth be told porn gets incredibly repetitive doesn't it? But the linkspam! You "page down" and "page down" and hope that you aren't missing any "non spam" in your effort to get by the linkspam. I have found ones that are longer than the essays my undergrads were required to hand in.
Well! I guess I'll be giving out a LOT of hugs, then! :D
Yay librarians! *throws confetti*
*throws puppies*
(In a safe, soft way, of course.)
@Ana: I'll catch one. And keep it. Oh, cuddly puppies.
....of course, my roommate's allergic, so that puts a damper on the whole thing.
Poodle? Mom got one. Better for allergies, they say. Here, have a poodle.
Librarians, yay!
Posted by: PastyAndUnhealthy | Feb 23, 2012 at 05:59 PM
Hmm. Poodle.
We sorta had a street cat that adopted us for a while, but she's been in and out. Not good for roommate's allergies, but we tried to keep the cat out of her room (not hard, really; since my door doesn't latch properly, the cat would come into my room instead).
...I think we completely derailed the thread now. Sorry.
@MercuryBlue, I'd be very interested in that. (And probably unable to comment in a timely manner, because things One Does Not Read from work - which actually this whole thread's gotten perilous close to a couple of times.)
I used to work in library book repair, and all my librarian coworkers were the coolest. Hapax, it sounds like you're right up there with them.
Been reading, and lurking, and reading some more, because I am not able to make a very good statement on this right now - I'm working on it.
It may be greater than comment length.
Posted by: Sixwing | Feb 23, 2012 at 06:19 PM
On straight (and queer) female appropriation of gay male experience, and the converse, gay male policing of straight (and queer) female sexuality:
Linkspam. Another linkspam. I haven't read all these links; given the demographics of fandom, most of them are probably pro-slash. So the rest of these will be skewed anti-slash.
sparkindarkness: Women - write m/m fiction by all means - but do not lie to us. Do not claim to be one of us. Do not claim to understand what it is to be a gay man. Do not claim gay male identity. Do not imply it, do not try to assume it, do not appropriate our experiences and our lives as toys for your enjoyment or tools for your profit. It's dishonest and grossly disrespectful.
arsmarginal (scroll down to #20): I will not begrudge anyone for appreciating man on man action. Hell, in fact, hit me up and I can make recommendations for some top-notch media that excellently features it. But when you're fetishizing and appropriating gay men/gay culture and inaccurately depicting us for your own agenda (stories about gay men written by women for women and simply using gay men as their author inserts), then you need to seriously need to stop because that shit is not cool.
Jane and Sarah: Isn't the romance genre, at its heart, all about the female construction of masculinity? What does it matter if that masculinity is straight or gay?
eumelia: The notion that m/m stories (gay or not, slash or not) are being marketed as a "women's genre" is what's problematic and identity erasing – so let's stop jumping on the fact that "straight" "women" are writing "gay" "men". Can't get a handle from this post on whether eumelia is pro- or anti-slash, but this post is a good summary of all sides of the debate.
I'm going up from the bottom, but I loved Eumelia, and I always love Dear Author.
And Sturgeon's Law. Any post that references that.
Dear Author and SBTB are part of my daily morning routine...despite the fact that I don't read a whole lot of romance.
I find that interesting, Ana, because I find it way easier writing femslash - mainly because I have intimate experience of having a female body, so when it comes to describing what the female characters are experiencing during sex, I have a much easier time.
But then, my sex scenes are more tactile than visual - which probably makes a difference.
Posted by: Deird, who is also a Kinsey 2 | Feb 23, 2012 at 08:51 PM
Board Post, February 16 2012 Regular Business Don't forget to send in items that you want included in This week in The Slacktiverse February 18/19 2012. The three sections of the weekend post are: The Blogaround Any denizen of the Slacktiverse who has posted an...
Updated This week in The Slacktiverse, February 18/19 2012 The Blogaround Literata's mother had surgery this week and is recovering well. Everyone's prayers, thoughts, and wishes have helped tremendously. This week Ana Mardoll posted: Twilight: Falling In Love With Love But the part of Twilight that appeals to me...


text:
using System;
using System.Collections.Generic;
using System.Linq;
using System.Reflection.Emit;
using System.Text;

using Xamarin.Forms;

namespace BuenaHealth.Mobile.Menu
{
    public class MenuPage : ContentPage
    {
        public ListView Menu { get; set; }

        public MenuPage()
        {
            Icon = "settings.png";
            Title = "menu"; // The Title property must be set.
            BackgroundColor = Color.FromHex("333333");

            Menu = new MenuListView();

            var menuLabel = new ContentView
            {
                Padding = new Thickness(10, 36, 0, 5),
                Content = new Label
                {
                    TextColor = Color.FromHex("AAAAAA"),
                    Text = "MENU",
                }
            };

            var layout = new StackLayout
            {
                Spacing = 0,
                VerticalOptions = LayoutOptions.FillAndExpand
            };
            layout.Children.Add(menuLabel);
            layout.Children.Add(Menu);

            Content = layout;
        }
    }
}

redpajama_set_name: RedPajamaGithub


text:
Reloaded – Rihanna claim against Topshop upheld
The Court of Appeal has upheld Rihanna's false endorsement claim against Topshop over the sale of a t-shirt bearing her image.[1] Lord Justice Kitchin, giving the lead judgment, considered that the trial judge had not failed to appreciate the distinction between endorsement and general character merchandising, and that he was entitled to find that Topshop was seeking to take advantage of Rihanna's public position as a "style icon". Despite the absence of an image right as such in UK law, the use of a pop star's image on a t-shirt – particularly one derived, as in this case, from a publicity shoot for an album – could still, in relevant circumstances, give rise to the mistaken belief that the t-shirt had been authorised by her.
In 2012, Topshop began selling a t-shirt showing an image of one of the world's biggest pop stars, Rihanna. At the time Topshop sold many garments bearing images of celebrities, some of which were authorised, and others that were not. The image in this case derived from a photograph taken on a video shoot for a single from Rihanna's "Talk That Talk" album, and similar images had been used by Rihanna in connection with the album. Although Topshop had a licence of the copyright in the photograph, the use of Rihanna's image was not approved.
Rihanna argued that a substantial number of people buying the t-shirt would think that she had endorsed it, when in fact she had not. She contended that Topshop's activities therefore amounted to passing-off. As well as being a singer, Rihanna also controls a large merchandising and endorsement business. Over the years, she has had endorsement agreements with Nike, Gillette, Clinique and LG Mobile. She has also made considerable efforts to promote an association in the mind of the public between herself and the world of fashion. Much of the clothing authorised by Rihanna bears a distinctive logo referred to as the "R slash" logo. The logo and the name "Rihanna" are used extensively, but not universally, on her authorised goods.
High Court judgment
The trial judge, Mr Justice Birss, found that by 2012 Rihanna was regarded as a "style icon" by many people, particularly young women aged between 13 and 30. If they saw Rihanna wearing an item of clothing, they would believe she had endorsed it. He also found that Rihanna (and her associated companies) had acquired significant goodwill in relation to fashion clothing.
At the heart of the case was whether or not Topshop's activities amounted to a misrepresentation. Rihanna's case was that, in the circumstances, the use of her image on the t-shirt amounted to a misrepresentation that was likely to mislead customers. There was a real likelihood that a substantial number of people would be deceived into thinking that it was an authorised product, and that they would purchase it as a result. In contrast, Topshop argued that consumers bought the t-shirt because they liked the product and the image for their own qualities.
The trial judge accepted that there was no evidence of any actual confusion before him. He also recognised that consumers were well aware of the merchandising and endorsement activities of music artists, but this did not mean that consumers always wanted to buy products which those artists had authorised. Separately, he considered that consumers would not have been surprised to find goods on sale in Topshop that had been endorsed by celebrities, but they had no positive expectation when they saw clothing carrying recognisable images.
The trial judge attributed particular importance to the specific relationship between Topshop and Rihanna. Topshop had made a considerable effort to emphasise its connection with various celebrities, including Rihanna. In particular, there was a shopping competition in 2010 in which Topshop offered entrants the chance to win a personal shopping appointment with Rihanna. Separately, Rihanna visited Topshop in February 2012 (shortly before the t-shirt went on sale), which Topshop publicised very effectively. An official tweet to Topshop's 350,000 followers read: "Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she'll buy …"
In the trial judge's view, these events showed that Topshop had recognised and sought to take advantage of Rihanna's position as a style icon. Further, a substantial number of potential purchasers of the t-shirt would have known of the 2010 competition and her 2012 shopping trip.
As for the t-shirt itself, neither the swing tag nor the label carried her name or logo. The image was, however, significant, as it was taken during the video shoot for the "We Found Love" single from the 2011 "Talk That Talk" album. The video had been filmed in the UK, and its controversial nature meant it had been the subject of substantial media attention.
The trial judge held that the relationship between the image on the t-shirt and the images for the album and the video shoot would be noticed by her fans. Further, it looked like a publicity shot for the album. To Rihanna's fans, the image might be considered to be part of the marketing campaign for the album.
He held that the nature of the image itself was a fairly strong indication that the t-shirt might be authorised by Rihanna. The public links between Topshop and celebrities (and more importantly, Rihanna in particular) would enhance the risk of consumers' believing the t-shirt had been authorised by her. Although he recognised that neither the swing tag nor the neck label carried her name or logo (factors pointing against authorisation), this was not sufficient to negate the contrary impression.
In the trial judge's view, a substantial portion of those considering the product would have been induced into thinking it was authorised by Rihanna. Those individuals would have been Rihanna fans, and they would have recognised the image as a particular picture of her associated with the Talk That Talk album. The idea that it was authorised would have been part of what motivated them to buy it, since they regard Rihanna's endorsement as important given that she is their style icon.
The judge accepted, however, that the mere sale of a t-shirt bearing an image of a celebrity does not, in itself, amount to passing-off. Rather, the sale by Topshop of this t-shirt was, in the circumstances, likely to lead people to buy it in the belief that it was authorised by Rihanna, and that had caused her damage.
Grounds of appeal
Topshop contended that the trial judge had erred in four respects:
he wrongly proceeded on the basis that there was no difference in law between an endorsement case and a merchandising case;
although he correctly acknowledged that the sale of a garment bearing a recognisable image of a celebrity does not, in itself, amount to passing-off, he should have found that, as a result, any claim for misrepresentation by omission was not made out;
he ought to have recognised that the absence of an image right is a matter of law and not a matter of fact, and he should have assessed the claim taking account of the perceptions of individuals for whom the presence of the image of Rihanna on the t-shirt was "origin neutral"; and
Rihanna had never properly developed a case that the particular image was in any way distinctive, there was no admissible evidence that it was distinctive, and the evidence on which the judge relied had no probative value.
Court of Appeal judgment
Legal principles
Kitchin LJ summarised the basic legal principles.
First, there is no "image right" that allows a celebrity to control the use of her name or image. Instead, a celebrity must rely on (among other things) the law of passing-off. The three basic elements of a passing-off case, as set out in Reckitt & Colman Products Ltd v Borden Inc. [1990] RPC 341, are that the claimant must demonstrate:
a goodwill or reputation attached to the claimant's goods or services in the mind of the purchasing public by association with the particular name or get-up under which those are offered to the public, such that the name or get-up is recognised by the public as distinctive of the goods or services;
a misrepresentation by the defendant to the public leading (or likely to lead) the public to believe that the defendant's goods or services are the goods or services of the claimant; and
damage that the claimant suffers, or is likely to suffer, by reason of the erroneous belief engendered by the misrepresentation.
The law of passing-off was, however, developed in Irvine v Talksport Ltd [2002] EWHC 367, which drew a distinction between "false endorsement" and "character merchandising". When a person endorses a product, she tells the relevant public that she approves of it or is happy to be associated with it. Merchandising, on the other hand, involves exploiting images, themes or articles that have become famous.
In the Irvine case, it was held that if someone acquires a valuable reputation, the law of passing-off will protect that person from unlicensed use by third parties. Further, it will vindicate the claimant's exclusive right to the reputation or goodwill, and will not allow others to use it so as to diminish its exclusivity. There is, however, still a need to demonstrate a misrepresentation, because it is the misrepresentation that enables the defendant to take advantage of the claimant's reputation. In summary, in a "false endorsement" case, the claimant must show that:
the claimant had a significant reputation or goodwill at the time of the acts complained of; and
the defendant's actions gave rise to a false message that would be understood by a "not insignificant section" of the market that the goods had been endorsed by the claimant.
Kitchin LJ endorsed Laddie J's decision in Irvine. He noted, however, that in Elvis Presley Trade Marks [1999] RPC 567, it was held that members of the public bought Elvis Presley merchandise not because it came from a particular source, but because it carried the name or image of Elvis Presley. Further, he noted that, in addressing the critical issue of distinctiveness, there should be no assumption that only a celebrity may ever market the celebrity's own character.
First ground of appeal
Topshop argued that purchasers of t-shirts bearing images of famous pop stars buy them not because they believe that the garments have any material connection with the pop stars at all, but simply because they want to wear a garment carrying a picture of their idol. So merchandising carries with it no misrepresentation. A claimant must, therefore, overcome two hurdles in a claim for passing-off in a merchandising case:
It must be shown that application of the name or image to the goods has the consequence that they tell a lie. This requirement will not be satisfied if the name or image denotes nothing about the source of the goods.
It must be shown that the lie is material. In many merchandising cases, the lie amounts to no more than a false suggestion that the goods are licensed and, as such, it may have no effect on the buying decision.
Kitchin LJ was, however, satisfied that the trial judge had given proper regard to the distinction between endorsement and general character merchandising: he had referred to Irvine and acknowledged that it is not a necessary feature of merchandising that members of the public will think that the product is in any sense endorsed by the celebrity or creator of the character in issue. He considered that the use of this image would, in all the circumstances, indicate that the t-shirt had been authorised by Rihanna. In short, the trial judge found that the sale of this t-shirt bearing this image amounted to a representation that Rihanna had endorsed it, and Kitchin LJ concluded that the reasoning of the trial judge disclosed no error of principle.
Second ground of appeal
Kitchin LJ saw no inconsistency between (a) the proposition that Rihanna has no absolute right to prevent traders selling garments carrying her image and (b) the trial judge's view that the use of the image amounted to a misrepresentation of authorisation. The trial judge was entitled to draw that distinction, and Kitchin LJ characterised Topshop's submission as a flawed contention of a positive right to market goods bearing an image, whether or not its use deceived the public.
Third ground of appeal
Topshop argued that the trial judge ought to have assessed the relevant factors objectively from the perspective of those for whom the presence of an image on clothing was "origin neutral". Kitchin LJ held that such an approach would require the court both to shut its eyes to reality and to disregard well-settled principles. It was also plainly relevant to consider potential customers who were both fans of Rihanna and prepared to shop in Topshop. Furthermore, the judge was bound to take into account the activities of Topshop in publicising its connection with Rihanna.
Kitchin LJ, like the trial judge, placed significant importance on the 2010 competition, as well as the other publicity relating to Rihanna wearing or choosing Topshop items. The trial judge was entitled to find that Topshop was both recognising and seeking to take advantage of Rihanna's public position as a "style icon".
Fourth ground of appeal
Topshop argued that Rihanna's case was never properly alleged in the pleadings or developed in the course of the proceedings, and that it was not supported by evidence of any probative value. Kitchin LJ found there was nothing in the first of these points. The second point, however, had more substance in his view. Nevertheless, he considered that the trial judge was entitled to find that the image is striking, and that similar images had been used for the Talk That Talk album and associated video. Further, he was also entitled to make the finding that the relationship between the image and the images for the album and video would be noticed by her fans, and that it may be taken to be an authorised publicity shot for the release.
Accordingly, Kitchin LJ held that the trial judge was entitled to find that the sale of the t-shirt amounted to passing-off.
It is helpful to have a Court of Appeal decision confirming the law in this area. It is worth noting, however, that in the judgment given by Lord Justice Underhill (endorsing Kitchin LJ's reasoning), he regarded this case as "close to the borderline". In his view, the trial judge's conclusion had essentially been based on two factors:
Rihanna's past public association with Topshop; and
the particular features of the image itself, which was apparently posed and showed Rihanna with the very distinctive hairstyle adopted in the publicity for Talk That Talk.
Underhill LJ did not believe that either factor would be sufficient by itself. In particular, Rihanna's association with Topshop did not seem to him to have been "such as to weigh very heavily in the balance". This gives additional helpful guidance on the weight of evidence likely to be required to prove false endorsement, given that these cases are inevitably decided in light of all of the relevant facts.
Tom Iverson, Associate, Michael Simkins LLP
Article written for Entertainment Law Review.
The Court of Appeal has upheld Rihanna's false endorsement claim against Topshop over the sale of a t-shirt bearing her image. The trial judge had not failed to appreciate the distinction between endorsement and general character merchandising: despite the absence of an image right as such in UK law, the use of a pop star's image on a t-shirt could still, in relevant circumstances, give rise to the mistaken belief that the t-shirt had been authorised by her. While turning on its particular facts, the decision usefully illustrates what is required to prove false endorsement.
[1] Robyn Rihanna Fenty v Arcadia Group Brands Ltd [2015] EWCA Civ 3.

redpajama_set_name: RedPajamaCommonCrawl


text:
UPDATE: Genomic Solutions to Slash 25% of Jobs; Future of Proteomics Effort Uncertain
NEW YORK, Sept. 7 – Proteomics and microarray developer Genomic Solutions said on Friday it plans to cut 25 percent of its workforce and restructure its business to help it become profitable by the first quarter of next year.
The company said in a statement that the restructuring includes the closing of an R&D and manufacturing facility in Lansing, Michigan. Jobs associated with that space will be transplanted to the company's headquarters in Ann Arbor.
Positions in Michigan and in Genomic Solutions' UK facilities will be eliminated by the end of the fourth quarter this year, the company added.
Genomic Solutions said its proteomic contract research business will either be spun out to an internal management group as a stand-alone business in which Genomic Solutions will maintain a minority shareholder status, or it will be sold outright.
The company also said it intends to retain chemical, reagent, and accessory manufacturing operations that share facilities with the proteomic contract research center. The company will continue to offer genomic research services in its existing in-house genomic laboratory.
"We are taking steps now to accelerate achievement of Genomic Solutions' financial performance goals," Jeffrey S. Williams, the firm's president and chief executive officer, said in the statement. "It is more than simply cutting costs--it is a fundamental restructuring of all of our available resources to further build our position as one of the leading suppliers of DNA microarray and proteomic systems in the life sciences marketplace."
The layoffs will not affect Genomic Solutions' microarray business, according to Kathleen Murphy, vice president of corporate communications at Genomic Solutions. The layoffs will come from the "consolidating of manufacturing," she added. "A lot of these people were offered relocation."
Genomic Solutions has 170 employees and will reduce this amount by approximately 43 between now and the end of the year, Murphy said. Specific positions to be cut "are not all determined yet," she added.
"We are a publicly held company and it is important for us as a publicly held company to determine what our stockholders are looking for," Murphy added. "It is important for us to be profitable. ... It is important to every one of our employees."
The company expects to be profitable in the first quarter of next year, Murphy said.
Separately on Friday, Genomic Solutions said it plans to purchase privately held Cartesian Technologies in a cash and stock deal that the struggling company hopes will help buttress its foothold in the automation tools market.
Terms of the deal call for Genomic Solutions to issue 6.8 million shares of common stock, options to buy 449,319 shares of common stock and $2.5 million in cash.
"Enhanced revenue and cost reduction opportunities, plus the inherent product cross-selling opportunities, make this acquisition a timely, ideal fit for Genomic Solutions," Williams said in a separate statement.


text:
FDA'S NEW APPROACH TO EXPORT REGULATION
Medical Device & Diagnostic Industry
Magazine | MDDI Article Index
Originally published September 1996
Jonathan S. Kahan
When it comes to the export provisions of the Federal Food, Drug, and Cosmetic Act (FD&C Act), the consensus among FDA-regulated industries seems to be that these provisions have been outdated for years. Under the FD&C Act, all medical devices not cleared through the 510(k) premarket notification process or not having obtained premarket approval (uncleared or unapproved devices) can nevertheless be exported if the product accords to the specifications of the foreign purchaser, if it is not in conflict with the laws of the country to which it is intended for export, if it has a label on the outside of the shipping package stating that it is intended for export, and if it is not sold or offered for sale in domestic commerce.1
In addition to these four preconditions, an additional provision under section 801(e)(2) states that the conditions do not apply to any device that does not comply with applicable requirements of sections 514 (performance standards) or 515 (premarket approval); that is exempt under section 520(g) (investigational device exemption [IDE] requirements) from either such section; or that is a banned device under section 516, unless, in addition to the requirements of section 801(e)(1), the secretary of the Department of Health and Human Services (HHS) has determined that exportation of the device is not contrary to public health and safety and has the approval of the country to which it is intended for export.
Under section 801(e)(2) and FDA's interpretation of that section, all Class III devices--including Class III preamendment devices for which premarket approval applications have not yet been called--are thus required to meet not only the four conditions of section 801(e)(1) listed above but also to obtain a finding from FDA that exportation of the device is not contrary to public safety and has the approval of the country to which it is intended for export. Obtaining FDA export approval under section 801(e)(2) has historically been difficult and time-consuming. More recently, FDA has made export approval virtually automatic for devices that are the subjects of approved IDE applications, with approvals averaging 4.2 days. For devices without IDE approvals, export approval averages 12.3 days. However, the need to obtain the approval of foreign countries has led to significant delays in the ultimate export of the products. Export requirements for pharmaceuticals and biologics have been even more difficult and burdensome.
In fact, a recent article in Forbes magazine described FDA's export requirements as "a top FDA job-killer," and Edward Rozynski, senior vice president of the Health Industry Manufacturers Association (HIMA), characterized the law as an arrogant policy.2 Industry has always been upset by the fact that FDA export approval is required for products that are approved in the countries to which they are intended for export, and it has also lobbied Congress to revise the law and revoke FDA's role as an "international nanny." To a certain degree, the agency itself has actually gone on record as favoring export reform. With the support of Senator
Orrin Hatch (RUT) and Congressman Fred Upton (R MI)--as well as many influential politicians such as Congressman John Dingell (DMI) and the late commerce secretary Ronald Brown--President Clinton signed the FDA Export Reform and Enhancement Act of 1996 (Export Reform Act) into law on April 26, 1996.
APPROVAL IN LISTED COUNTRIES
The Export Reform Act was part of the Omnibus Consolidated Recissions and Appropriations Act of 1996.3 The new law revamps the export provisions of sections 801 and 802 of the FD&C Act and significantly lessens the burdens on the medical device industry in the export of unapproved and uncleared products to foreign countries.
The key provision of the law allows the export of medical devices not approved for marketing in the United States to any country if the device complies with the law of that country and has valid marketing authorization in at least one of the following countries or entities (herein referred to as the listed countries): Australia, Canada, Israel, Japan, New Zealand, Switzerland, South Africa, or the European Economic Area.
The HHS secretary--on his or her own initiative or at the request of an appropriate country official, manufacturer, or exporter--may designate additional countries to be added to the list if the following requirements are met:
(i) Statutory or regulatory requirements exist [in the candidate country] which require the review of drugs and devices for safety and effectiveness by an entity of the government of such country and which authorize the approval of only those drugs and devices which have been determined to be safe and effective by experts employed by or acting on behalf of such entity and qualified by scientific training and experience to evaluate the safety and effectiveness of drugs and devices on the basis of adequate and well-controlled investigations, including clinical investigations, conducted by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs and devices.
(ii) Statutory or regulatory requirements that the methods used in, and the facilities and controls used for: (I) the manufacture, processing, and packing of drugs in that country are adequate to preserve their identity, quality, purity, and strengths; and (II) the manufacture, preproduction design validation, packing, storage, and installation of a device are adequate to assure that the device will be safe and effective.
(iii) Statutory or regulatory requirements for the reporting of adverse reactions to drugs and devices and procedures to withdraw approval and remove drugs and devices found not to be safe or effective.
(iv) Statutory or regulatory requirements that the labeling and promotion of drugs and devices must be in accordance with the approval of the drug or device; and
(v) The valid marketing authorization system in such country or countries is equivalent to the systems in the [listed countries]. (The secretary is prohibited under this section of the new law from delegating the authority to designate new listed countries.)4
Interestingly, the regulatory criteria necessary to add a country to the list are sometimes more stringent than the regulatory requirements of some of the listed countries. It will be interesting to see how many countries are added to the list based on these strict criteria.
The importance of the foregoing provisions cannot be emphasized enough. Under the Export Reform Act, a U.S. medical device manufacturer will no longer have to seek FDA approval to export an unapproved Class III device so long as it is approved for use in one of the listed countries. Not only can the device then be exported to one of the listed countries, but it can also be shipped to any country where its import is legal (under the theory that, if one of the industrialized countries has approved the sale of the product in that country, FDA does not need to further evaluate public health issues involving the export of that product).
EXPORT OF INVESTIGATIONAL DEVICES
The Export Reform Act states that any investigational device intended for export to one of the listed countries may be exported in accordance with the laws of that country and is exempt from the investigational medical device requirements of section 520(g) and 21 CFR 812.
While the new law does not define investigational use, one can presume that a device that is involved in a formal clinical study can be freely exported if it meets the laws for investigational devices within the country of intended import. Indications of investigational use include a formal protocol, review of the protocol by an institutional review board or equivalent, and the provision of informed consent under the Declaration of Helsinki or similar study subject protection requirements.
The importance of this new investigational device export provision is that, if read broadly, FDA approval or review will no longer be necessary for the export of a Class III medical device to one of the listed countries so long as the proposed investigational use is in accord with the importing country's laws. If an unapproved device is not approved in one of the listed countries and is intended to be exported for investigational use to an unlisted country, the existing requirements of section 801(e)(2) would still be applicable.
IMPORTATION AND REEXPORT OF COMPONENTS
The Export Reform Act addresses, and probably resolves, a troublesome anomaly under the prior law. Under provisions of the FD&C Act, a component or accessory of a device that was ready or suitable for use for health-related purposes could not be brought into the United States without actual clearance or approval of the device, even though the component was intended for incorporation into a finished device and destined only for export.
Under the new law, such component parts or accessories cannot be excluded from importation into the United States if the following conditions are met:
* The importer of the device, at the time of initial importation, submits a statement to the HHS secretary that says the initial owner or consignee intends to incorporate the article into a device that will be exported in accordance with the revised provisions of sections 801(e) and 802.
* The initial owner or consignee responsible for the imported article maintains records identifying the use of the imported article and, upon the secretary's request, submits a report providing an account of the exportation or the disposition of the imported article, including portions that have been destroyed, and the manner in which such person complied with the requirements of the paragraph.
*	Any imported component, part, or accessory of a device not incorporated is destroyed or exported by the owner or consignee.
The 1996 law does not define what constitutes a component or an accessory, and consequently importers or consignees are required to make their own determinations as to whether the parts they want to bring into the United States for reexport qualify under this provision. The term accessory is not defined in the FDA regulations, although a component is defined as "any material, substance, piece, part, or assembly used during device manufacture which is intended to be included in the finished device."5 FDA may possibly define these terms further in regulations implementing the new law.
This provision should help companies that are in the business of importing parts or accessories that are ready or suitable for health-related use with the intent to further manufacture or package and reexport the finished device. Many such companies exist, and they can now bring in these products for further processing without having to obtain 510(k) clearance or premarket approval for the part or accessory before importation.
UNAPPROVED DEVICES
The Export Reform Act outlines general requirements for the export of unapproved devices.
Applicability to Class I and Class II 510(k)-able Devices. The Export Reform Act maintains the four requirements of section 801(e)(1), meaning that all uncleared or unapproved devices--even those exported to the listed countries--must meet the previously mentioned requirements of section 801(e)(1). Under prior law, FDA took the position that Class I and Class II devices were not subject to the section 801(e)(2) requirement for FDA export approval but only had to meet the four conditions of section 801(e)(1). Although one cannot be certain, FDA will probably continue to use its enforcement discretion and permit export of a 510(k)-able device that is not the subject of an FDA-cleared 510(k) notification if the exporter can reasonably conclude that the device would be found to be substantially equivalent to a legally marketed device. Exporters of these uncleared 510(k)-able devices need only meet the four conditions of section 801(e)(i), and no FDA notification is required.
GMP Requirements. Additionally, under the new law a device may not be exported if it is not manufactured, processed, packaged, and held in substantial conformity with current good manufacturing practice (GMP) requirements or does not meet international standards as certified by an international standards organization recognized by the HHS secretary. Interestingly, this provision of the law does not specifically require that all exported devices meet the GMP requirements of 21 CFR 820, but rather states that they must be manufactured in substantial conformity with GMPs. Substantial conformity is not defined in the law, but the prudent exporter would interpret this provision as requiring all exported devices to be in essential compliance with GMPs prior to export. This would apparently apply to uncleared Class I and Class II 510(k)-able devices as well.
How this "GMP conformity" requirement would apply to investigational devices is also unclear. Under 21 CFR 812.1, investigational devices are exempt from the GMP requirements of section 520(f) of the FD&C Act. However, under IDE regulations, a sponsor of an investigational device must provide FDA with a description of the methods, facilities, and controls used for the manufacture, processing, packing, storage, and, where appropriate, installation of the device, and sufficient
details so that a person generally familiar with GMPs can make a knowledgeable judgment about the quality control used in the manufacture of the device.6 Industry has interpreted this provision to mean that, while the investigational devices are exempt from GMP requirements, the sponsor must still demonstrate that a device was manufactured under sufficient control so that there is uniformity in devices distributed to the investigational sites. Under the Export Reform Act, it is unclear whether these exported investigational devices must now meet the requirements of 21 CFR 820. Again, FDA may clarify this issue in implementing regulations or technical modifications to the act itself.
Simple Notification. Another requirement applicable to devices exported for commercial sale in listed countries is that the exporter must provide a simple notification to the HHS secretary identifying the device when the exporter initially exports it. Similarly, when a device exporter initially exports an unapproved device that has market approval in a listed country to a nonlisted country, that exporter must also provide notification to the secretary identifying the device and country to which it will be exported. The exporter must maintain records of all devices exported as well as the destination countries. It is not clear whether an exporter has to provide separate notification to FDA of each initial shipment of an unapproved device to a listed or nonlisted country. For example, if a device is approved for marketing in France, does the exporter have to notify FDA of the device's initial export to France and also notify the agency separately of the initial export to any other listed country? Similarly, if a device is approved for marketing in France, does the exporter have to notify FDA separately of the initial export to a nonlisted country?
The Center for Devices and Radiological Health (CDRH) has not issued regulations or guidelines implementing the Export Reform Act. Nevertheless, CDRH officials have advised industry that FDA intends to draft such regulations and that one of their provisions will clarify what is meant by simple notification. Indeed, some officials within CDRH's Office of Compliance who are responsible for the export of devices initially advised device manufacturers not to file the requisite notification to the secretary at this time but rather to keep documentation on such exports until FDA issues regulations or guidelines implementing the new law. Notwithstanding this initial advice, a simple notification to the HHS secretary, along with a copy to the CDRH Office of Compliance, is probably a prudent course to follow until implementing regulations are promulgated.
Imminent-Hazard Devices. The Export Reform Act also allows FDA to prohibit the export of any device if FDA finds that its reimportation would present an imminent hazard to U.S. public health and safety, and that the only means of limiting that hazard is to prohibit the export of the device. The new law would also preclude export of the device if it presents an imminent hazard to the public health of the destination country.
Labeling Requirements. Another significant requirement of the new law is that the exported device must be labeled in accordance with the requirements and conditions for use in the country in which the device received valid marketing authorization (from one of the listed countries) and the country to which the device ultimately will be exported. Further, the labeling must be in the language and units of measurement of the country to which the device will be exported. And finally, the device cannot be exported if it is not promoted in accordance with the labeling requirements set forth above.
The labeling provisions of this law are controversial and will require clarification from the agency. It is unclear whether FDA intends to use this provision to prevent off-label uses of the exported products, and it is not clear how FDA intends to implement or enforce this provision. Will it require the submission and FDA review of all promotional materials associated with the exported product? If so, it would defeat part of the Export Reform Act's purpose--namely, getting FDA out of the export review business.
EXPORT CERTIFICATION
For years, FDA has been issuing Certificates for Products for Export (CPEs). No statutory or regulatory requirement that FDA issue CPEs had been established. However, many nations refused to accept U.S.-manufactured devices unless FDA provided some assurance that the devices were approved for sale in the United States and that there were no legal or regulatory actions pending against the manufacturer. Consequently, FDA voluntarily provided CPEs to encourage exports.
Under the new law, FDA is specifically authorized to certify in writing that an exported device meets the requirements of FDA export laws and that the device being exported meets the applicable requirements of the FD&C Act. FDA is directed to issue a certification within 20 days of the receipt of a request. If certification is issued within 20 days, FDA is authorized to charge a fee that may not exceed $175 for each certification. The fees collected are directed to be credited to the FDA appropriation account to meet the salaries and expenses of FDA. The House and Senate conferees intended that these fees be established on a sliding scale to minimize the impact on small businesses.
It can certainly be said that the Export Reform Act is not a model of clear drafting. Many issues need to be clarified through the implementation of regulations or guidances, and it is possible that certain controversial "drafting errors" will be resolved through technical amendments. These technical amendments will likely be directed toward the labeling requirements related to the export of antibiotics, insulin, and new animal drugs, although it is quite possible that other changes may be enacted.7
Even with many issues still needing to be resolved, the direction of the new law is extremely helpful to the U.S. medical device industry. A recent HIMA study showed that approximately 10,000 jobs a year in the medical device industry are being lost to overseas operations of U.S. device companies.8 The revocation of the export approval requirements may help stem part of the outflow of these jobs and encourage exports of medical technology, not jobs.
1. United States Code, 21 USC 801(e)(1).
2. Lane R, "It's a Start," Forbes, 157(11):9798, 1996.
3. Pub. L. 104-134.
4. 21 USC 802(b)(1)(B).
5. 21 CFR 820.3.
6. 21 CFR 812.20(b)(3).
7. FDA Week, May 24, p 7, 1996.
8. The Wilkerson Group, Forces Reshaping the Performance and Contribution of the U.S. Medical Device Industry, Washington, DC, Health Industry Manufacturers Association, 1995.
Jonathan S. Kahan is a partner in the law firm of Hogan & Hartson (Washington, DC), and a contributing editor and member of MD&DI's editorial advisory board.


Great value because this is a very excellent quality low whistle and has the added value of being an excellent practice flute for those wishing to learn flute as well. Tony Dixon Tenor/ Flute/ Low Whistle with a dual head can be played as a whistle or a flute.
The heads can be replaced if lost.
Come and test this whistle out! We are located in Baldoyle Industrial Estate in Dublin. Otherwise we guarantee your money back within 14 days if you're not satisfied for any reason.