Creativity

Where There is Creativity, There is Plagiarism

18 July 2019

From Plagiarism Today:

Plagiarism can often seem invisible.

Not only do plagiarists often go to great lengths to hide the activities but, even when it’s done in broad daylight, those that aren’t actively looking for it will usually miss it. It’s very easy to look around you and feel confident that you’re in a relative plagiarism-free zone.

But the truth is much different. Plagiarism is literally everywhere that there is creativity. It doesn’t matter what kind of work you create or how it’s created, if there is originally and expression, you’re likely to find plagiarism.

In the more than 15 years I’ve been running Plagiarism Today, we’ve discussed plagiarism in a wide variety of environments including knitting, board games, video games, flag design, API development, YouTube videos (not counting other copyright issues), poetry, podcasts, comic books, architecture, marketing and much, much more.

If there’s creativity in an industry, there’s a near-guarantee that there is plagiarism in it. That’s because, whenever there’s a barrier to creating something, whether it’s an essay or movie, you can rest assured someone will be there to take whatever shortcuts they can to create their own.

. . . .

As Jason Chu of Turnitin once said, “Plagiarism is about putting outcomes ahead of processes.”

In short, plagiarist is someone who wants the outcome of having created something but doesn’t value or respect the process of creating that thing. In a simple example, a student who wants an A on a paper but doesn’t want to go through the trouble of actually writing such a paper may be tempted to plagiarize it.

To be clear, not every person that feels this way will be a plagiarist. Many students may not care about or see the value in writing an essay, but most will grit their teeth and do the work, either out of a sense of honesty or a fear of reprisal.

However, a student that values or even enjoys the process of writing an essay or completing an assignment will be much less tempted to plagiarize, regardless of their sense of honesty or how much they fear getting caught.

. . . .

But to creatives, this can seem alien. Why would you want to create something and not have it be original? Why would you want to put your name on something that someone else already made?

The reason is that we, as a society, value creators. Though, not always enough to avoid pirating their work, there is still a cult of celebrity placed around authorship and creativity. Whether it’s authors, filmmakers, musicians, artists, photographers or any other type of work, there’s a lot of appeal to being a creator.

That societal value is only matched by some people’s individual willingness to take shortcuts. In short, being a creative is very appealing, especially in the digital age when just about anyone can find an audience, but being creative requires a great deal of hard work and there are many that find that too high of a cost.

. . . .

[One step toward the deterence of plagiarism] is to be honest about what it takes to create a work.

For example, this post, and ones like, do not spring fully formed from my mind. They often take hours or works, sometimes broken up over multiple days. Even for all of my typos and grammar mistakes, there is a great deal of editing, revision and preparation that goes into them as well.

However, that’s not something that people see. We have created a mythos around creativity where a great work is the product of a brilliant mind, not the toil of countless hours of hard, often dull, labor.

Creativity is not something that’s available on demand and it rarely bears any fruit of worth without being combined with hard work. However, we don’t talk about those elements and that sets up an unrealistic expectations for those who have never done it themselves.

How can we expect others to respect the process of creating something when we aren’t always open and honest about that process ourselves?

Our cult of creativity has minimized the work that goes into creating something and put the focus on an intangible spark or a mythical completely self-contained idea that sprang forth fully formed. Neither are true.

Creativity is work and, though more work does not equal better product, if we were more open about how works were actually created, others might feel less justified in skipping the invisible work or copying the elusive creativity.

Link to the rest at Plagiarism Today

To Stoke Creativity, Crank out Ideas and Then Step Away

31 March 2019
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From ScienceDaily:

There is an effective formula for unlocking employees’ creative potential, according to new research from the McCombs School of Business at The University of Texas at Austin and the Gies College of Business at the University of Illinois at Urbana-Champaign. Employers should incentivize workers to produce an abundance of ideas — even mediocre ones — and then have them step away from the project for an “incubation period.”

The researchers found that people who were rewarded simply for churning out ideas, whether good or bad, ultimately ended up producing more creative ideas than people who did not receive pay incentives or those whose pay incentives were based on the quality of their ideas instead of the quantity. All the study participants stepped away from the initial task for a time and returned to it later.

“Creativity is not instantaneous, but if incentives promote enough ideas as seeds for thought, creativity eventually emerges,” said Steven Kachelmeier, the Randal B. McDonald Chair in Accounting at Texas McCombs and co-author of the study in the Accounting Review.

It has been well established in the academic literature that creative performance is enhanced by an incubation period, but this research looked at a new question: What happens when you add incentives for idea generation to the equation?

. . . .

It has been well established in the academic literature that creative performance is enhanced by an incubation period, but this research looked at a new question: What happens when you add incentives for idea generation to the equation?

. . . .

Some participants were offered pay based on the number of ideas they generated, some only for ideas that met a standard for creativity, and others a fixed wage of $25, regardless of the quantity or quality of their puzzle ideas.

Initially, none of the incentivized groups outperformed the fixed-wage group in measures of creativity, as judged by an independent panel. Creativity incentives, it would seem, do not work instantly. But in a subsequent return to the creativity task 10 days later, those who had originally been paid to come up with as many ideas as they could had “a distinct creativity advantage,” outperforming the other groups in both the quantity and quality of ideas, Kachelmeier said.

Having an incubation period after participants put their minds to work was key to their success, the researchers said.

Link to the rest at ScienceDaily

A Philosopher Argues That an AI Can’t Be an Artist

1 March 2019

From MIT Technology Review:

On March 31, 1913, in the Great Hall of the Musikverein concert house in Vienna, a riot broke out in the middle of a performance of an orchestral song by Alban Berg. Chaos descended. Furniture was broken. Police arrested the concert’s organizer for punching Oscar Straus, a little-remembered composer of operettas. Later, at the trial, Straus quipped about the audience’s frustration. The punch, he insisted, was the most harmonious sound of the entire evening. History has rendered a different verdict: the concert’s conductor, Arnold Schoenberg, has gone down as perhaps the most creative and influential composer of the 20th century.

You may not enjoy Schoenberg’s dissonant music, which rejects conventional tonality to arrange the 12 notes of the scale according to rules that don’t let any predominate. But he changed what humans understand music to be. This is what makes him a genuinely creative and innovative artist. Schoenberg’s techniques are now integrated seamlessly into everything from film scores and Broadway musicals to the jazz solos of Miles Davis and Ornette Coleman.

Creativity is among the most mysterious and impressive achievements of human existence. But what is it?

. . . .

Creativity is not just novelty. A toddler at the piano may hit a novel sequence of notes, but they’re not, in any meaningful sense, creative. Also, creativity is bounded by history: what counts as creative inspiration in one period or place might be disregarded as ridiculous, stupid, or crazy in another. A community has to accept ideas as good for them to count as creative.

. . . .

Advances in artificial intelligence have led many to speculate that human beings will soon be replaced by machines in every domain, including that of creativity. Ray Kurzweil, a futurist, predicts that by 2029 we will have produced an AI that can pass for an average educated human being. Nick Bostrom, an Oxford philosopher, is more circumspect. He does not give a date but suggests that philosophers and mathematicians defer work on fundamental questions to “superintelligent” successors, which he defines as having “intellect that greatly exceeds the cognitive performance of humans in virtually all domains of interest.”

Both believe that once human-level intelligence is produced in machines, there will be a burst of progress—what Kurzweil calls the “singularity” and Bostrom an “intelligence explosion”—in which machines will very quickly supersede us by massive measures in every domain. This will occur, they argue, because superhuman achievement is the same as ordinary human achievement except that all the relevant computations are performed much more quickly, in what Bostrom dubs “speed superintelligence.”

So what about the highest level of human achievement—creative innovation? Are our most creative artists and thinkers about to be massively surpassed by machines?

No.

Human creative achievement, because of the way it is socially embedded, will not succumb to advances in artificial intelligence. To say otherwise is to misunderstand both what human beings are and what our creativity amounts to.

This claim is not absolute: it depends on the norms that we allow to govern our culture and our expectations of technology. Human beings have, in the past, attributed great power and genius even to lifeless totems. It is entirely possible that we will come to treat artificially intelligent machines as so vastly superior to us that we will naturally attribute creativity to them. Should that happen, it will not be because machines have outstripped us. It will be because we will have denigrated ourselves.

. . . .

Can we imagine a machine of such superhuman creative ability that it brings about changes in what we understand music to be, as Schoenberg did?

That’s what I claim a machine cannot do. Let’s see why.

Computer music composition systems have existed for quite some time. In 1965, at the age of 17, Kurzweil himself, using a precursor of the pattern recognition systems that characterize deep-learning algorithms today, programmed a computer to compose recognizable music. Variants of this technique are used today. Deep-learning algorithms have been able to take as input a bunch of Bach chorales, for instance, and compose music so characteristic of Bach’s style that it fools even experts into thinking it is original. This is mimicry. It is what an artist does as an apprentice: copy and perfect the style of others instead of working in an authentic, original voice. It is not the kind of musical creativity that we associate with Bach, never mind with Schoenberg’s radical innovation.

So what do we say? Could there be a machine that, like Schoenberg, invents a whole new way of making music? Of course we can imagine, and even make, such a machine. Given an algorithm that modifies its own compositional rules, we could easily produce a machine that makes music as different from what we now consider good music as Schoenberg did then.

But this is where it gets complicated.

We count Schoenberg as a creative innovator not just because he managed to create a new way of composing music but because people could see in it a vision of what the world should be. Schoenberg’s vision involved the spare, clean, efficient minimalism of modernity. His innovation was not just to find a new algorithm for composing music; it was to find a way of thinking about what music is that allows it to speak to what is needed now.

Some might argue that I have raised the bar too high. Am I arguing, they will ask, that a machine needs some mystic, unmeasurable sense of what is socially necessary in order to count as creative? I am not—for two reasons.

First, remember that in proposing a new, mathematical technique for musical composition, Schoenberg changed our understanding of what music is. It is only creativity of this tradition-defying sort that requires some kind of social sensitivity. Had listeners not experienced his technique as capturing the anti-­traditionalism at the heart of the radical modernity emerging in early-­20th-century Vienna, they might not have heard it as something of aesthetic worth. The point here is that radical creativity is not an “accelerated” version of quotidian creativity. Schoenberg’s achievement is not a faster or better version of the type of creativity demonstrated by Oscar Straus or some other average composer: it’s fundamentally different in kind.

Second, my argument is not that the creator’s responsiveness to social necessity must be conscious for the work to meet the standards of genius. I am arguing instead that we must be able to interpret the work as responding that way. It would be a mistake to interpret a machine’s composition as part of such a vision of the world. The argument for this is simple.

Claims like Kurzweil’s that machines can reach human-level intelligence assume that to have a human mind is just to have a human brain that follows some set of computational algorithms—a view called computationalism. But though algorithms can have moral implications, they are not themselves moral agents. We can’t count the monkey at a typewriter who accidentally types out Othello as a great creative playwright. If there is greatness in the product, it is only an accident. We may be able to see a machine’s product as great, but if we know that the output is merely the result of some arbitrary act or algorithmic formalism, we cannot accept it as the expression of a vision for human good.

For this reason, it seems to me, nothing but another human being can properly be understood as a genuinely creative artist. Perhaps AI will someday proceed beyond its computationalist formalism, but that would require a leap that is unimaginable at the moment. We wouldn’t just be looking for new algorithms or procedures that simulate human activity; we would be looking for new materials that are the basis of being human.

Link to the rest at MIT Technology Review

PG suggests that humans and AI are likely to have a prickly relationship for quite a long time.

PG wonders how the author of the OP would regard creative genius as manifested in humans with severe mental illnesses or addictions to drugs or alcohol.

Vincent Van Gogh spent time in a psychiatric clinic.

Edvard Munch wrote, “I can not get rid of my illnesses, for there is a lot in my art that exists only because of them.” His best-known painting, The Scream, can certainly be interpreted as an expression of someone in the throes of mental illness.

 

 

Quite a number of well-known writers have died from the effects of their chronic alcoholic consumption.

F. Scott Fitzgerald, Jack Kerouac, Raymond Chandler, Dylan Thomas, Grace Metalious, Dorothy Parker, and Carson McCullers come to mind.

Is a severely-impaired human being more truly creative than an unimpaired artificial intelligence?

Why You Should Work Less and Spend More Time on Hobbies

11 February 2019

From The Harvard Business Review:

As professionals around the world feel increasingly pressed for time, they’re giving up on things that matter to them. A recent HBR article noted that in surveys, most people “could name several activities, such as pursuing a hobby, that they’d like to have time for.”

This is more significant than it may sound, because it isn’t just individuals who are missing out. When people don’t have time for hobbies, businesses pay a price. Hobbies can make workers substantially better at their jobs. I know this from personal experience. I’ve always loved playing the guitar and composing. But just like workers everywhere, I can fall into the trap of feeling that I have no time to engage in it. As head of demand generation for Nextiva, I have enough on my plate to keep me busy around the clock. I can easily fall into the trap of the “72-hour workweek,” which takes into account time people spend connected to work on our phones outside of official work hours.

When I crash, there’s always the temptation to do something sedentary and mindless. It’s little surprise that watching TV is by far the most popular use of leisure time in the U.S. and tops the list elsewhere as well, including Germany and England.

. . . .

Creativity. To stand out and compete in today’s crowded and constantly changing business environment, organizations need new, innovative ideas that will rise above the noise. I’m tasked with constantly looking for new ways to attract attention from potential buyers. But coming up with a fully original idea can be difficult when your mind is filled with targets, metrics, and deadlines.

A creative hobby pulls you out of all that. Whether you’re a musician, artist, writer, or cook, you often start with a blank canvas in your mind. You simply think: What will I create that will evoke the emotion I’m going for?

It’s no surprise that by giving yourself this mental space, and focusing on feelings, you can reawaken your creativity. Neuroscientists have found that rational thought and emotions involve different parts of the brain. For the floodgates of creativity to open, both must be in play.

. . . .

Confidence. When I face a tough challenge at work and feel stymied, I can start to question whether I’ll ever figure out a successful solution. It’s easy to lose creative confidence. But after an hour of shredding on the guitar, hitting notes perfectly, I’m feeling good. I can tell that my brain was craving that kind of satisfaction. And when I face that work project again, I bring the confidence with me.

It turns out people like me have been studied. In one study, researchers found that “creative activity was positively associated with recovery experiences (i.e., mastery, control, and relaxation) and performance‐related outcomes (i.e., job creativity and extra‐role behaviors).” In fact, they wrote, “Creative activity while away from work may be a leisure activity that provides employees essential resources to perform at a high level.”

Link to the rest at The Harvard Business Review

Does AI Enhance Creativity?

22 December 2018

From Forbes:

The sophistication of artificial intelligence (AI) software is giving rise to a healthy debate about human creativity v machine creativity.

Whilst there is general agreement that AI will eventually take over many task orientated jobs, there is skepticism over whether occupations that require high creative intelligence will become automated.

. . . .

One of the main benefits of AI is saving time on mundane tasks. Working with a machine can ease the workload for creatives and allow them more time for strategic and creative thinking. But it’s more than just a time saver. From providing data insight to enable marketers to better understand their consumers to ideating and iterating basic ideas to aid the creative process, AI can provide valuable support.

. . . .

AI is also a powerful tool and partner for musicians. There is an entire industry built around AI services for creating music. Big players like Google and Spotify are all getting a piece of the action. Many of the systems work by using deep learning, a type of AI that’s reliant on analyzing multiple layers of data. Dance anthems through to pop classics can be analyzed for their chords, tempo, length etc so the software can determine patterns and create music. AI platform Amper’s co-founder, Michael Hobe, says “It’s more of intelligence augmentation. For me, it’s allowing more people to be creative and then allowing the people who already have some of these creative aspects to really further themselves.”

. . . .

Recently, The & Partnership London turned to tech company Visual Voice to build an AI platform that could write the next Lexus ad script, with visual recognition support from IBM Watson. The first step was to feed the machine the right information. The AI was trained with Cannes Lions-winning car and luxury advertising – 15 years worth –  to find trends associated with acclaimed advertising and it was taught to be intuitive. This was done through drawing on emotional intelligence data and via a study conducted in partnership with applied scientists which explored intuition.

. . . .

Google’s AI boutique DeepMind is developing an AI with imagination. It’s this distinctly human ability to construct a plan, to see the consequences of actions before they are made, that could really shake things up.

Link to the rest at Forbes

Here’s the Lexus ad created entirely by artificial intelligence:
.

How to balance full-time work with creative projects

28 November 2018
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From Fast Company:

“Teacher burnout” refers to a state of chronic physical and emotional exhaustion brought on by prolonged periods of stress. Combined with low wages, inadequate funding, and disheartening educational policy, burnout has resulted in eight percent of teachers in America throwing in the towel over the past decade.

As a teacher myself, it’s been interesting to reflect on what keeps me coming back to the classroom, five years into this difficult yet ultimately rewarding job. What it comes down to, I think, is that teaching is not the only thing that keeps me going. In my opinion, relying solely on a day job or career to fulfill your ambitions and keep you mentally stimulated is risky business. Instead, I like to incorporate a smattering of fulfilling creative projects within my day-to-day life to help me keep my teaching job in perspective. And while it isn’t always easy to do it all, there are ways to balance things out.

Over the past few years, in addition to teaching full-time, I’ve managed to finish a master’s degree, start a record label, contribute to various publications, and release/perform music as Nassau. Through it all I’ve practiced, failed at, and re-tooled strategies for balancing full-time work with multiple creative side projects. In this guide you’ll find a handful of takeaways for staying sane, organized, and intentional while trying to do it all.

BE HONEST ABOUT YOUR 9 TO 5

Your day job matters a lot

It really does! The average person will spend over 90,000 hours, or about a third of their lives, at work. With another third of our hours spent sleeping, the time we actually have for “living” seems modest at best. If you’re holding down an unfulfilling 9-5 with the primary ambitions of supporting yourself and your creative work (versus building a career in that area), ideally this job should provide you with at least one of three things: more time, more resources, or a skill set that will help you be successful in your creative endeavors.

As you contemplate what type of day job might make sense for you, consider the feelings you’ll want to have after completing a shift, or after heading out from the office. Probably “drained, grumpy, and sick of everyone” are not feelings that are on your list. So think about it: What type of work or situations might you seek out that wouldn’t leave you in a bad mood after working? By spending some time brainstorming about the job that could be a nice complement to your personality and side projects, you’ll put yourself in a better position to find the right type of gig.

. . . .

Finding the right gig to nicely balance with your personality and creative work isn’t going to happen overnight. As you work towards finding the right role, pause and reflect on your thoughts and emotions whenever possible. In each type of positions, ask yourself: Were there new trends in your behavior? Did you notice an uptick in your creative work and productivity outside of your 9-5?

As you think about what type of day job might make sense for you, a simple exercise to try starts with taking inventory of your skills and passions. Write them down. Go for quantity here: What are you good at? What comes naturally? Anything goes. Then look for patterns or themes. You may even group your skills into categories including “things I love doing,” “things I get paid the most for doing,” “skills I want to improve,” or “skills I haven’t used in a long time, but would like to use again.” Identifying patterns will enable you to honor and recognize the expertise you already possess, and can help you find employment that complements not only you as a person, but your creative practice as well.

As you do the above exercise, you should also be honest with your intentions, and even name them. Would you like a job that makes you lots of money? Expands your network? Gets you working with your hands? Trust your brain and your body–you’ll thank yourself when you’ve landed the right job that’s actually helping you get what you want (not just what you think you should want), and are also able to have time and energy to produce creative work you’re proud of.

Link to the rest at Fast Company

Colorful Statements: The Art of Illustrator Eliot Wyatt

18 September 2018

From Adobe Create Magazine:

Eliot Wyatt likes to say that his personality and his work are quite similar: “a bit weird, fun, and loud.” An illustrator based in Bristol, England, Wyatt creates colorful—and sometimes a little trippy—work that has enlivened high-profile campaigns for clients like Airbnb, Buzzfeed, and Nescafé.

. . . .

Wyatt’s subjects range from politics and social issues to celebrities, delicious-looking foods, fantasy automobiles, and really cool sneakers. A candy-colored palette and a flat, nearly two-dimensional look make for a very distinctive body of work.

. . . .

When asked about how his approach is unique, Wyatt is thoughtful. “I don’t know if it’s a bad thing, but I wouldn’t say there is anything particularly unique in the way I approach my work,” he says. “I will sketch out ideas, develop the best ones, and then move into a final image. What is unique is the thoughts and ideas that run throughout my illustration work and the way that becomes identifiable as my style. It’s not necessarily the way you approach a project; rather, it’s the way you think about it. For example, it could be thinking about a different way to view a particular scene or object, or how you may be able to refer to something without directly placing it in the image. These decisions contribute just as much to your ‘style’ of work as the aesthetic you choose to work in.”

. . . .

And what, in his mind, constitutes a successful piece? “For me, it is when both the aesthetic and the ideas are strong in a single image. Sometimes an illustration can lead too much with the aesthetic, which ultimately makes for a weaker image. Typically, all work, either client or personal, starts out the same way. My initial sketches are developed further in to larger sketches, which allows for more focus on creating a solid composition and framing of the image.”

Link to the rest at Adobe Create Magazine, which includes several examples of the Wyatt’s art.

PG is familiar with writing exercises but wondered if authors engage in other practices that help jumpstart or expand their creative efforts.

For example, is a character sketch the equivalent of a visual artist sketching out an idea?

To the best of PG’s recollections, visual arts and writing are centered in different parts of the human brain, but he could be wrong.

Poultry Feeder Litigation

27 August 2018

From Rebecca Tushnet’s 43(B)log:

CTB sued HS for making an allegedly exact replica of CTB’s poultry feeder, infringing its registered trademarks for product configuration and color (color on the supplemental register).

Pan feeders are the industry standard. The usual configuration: a pan (bottom portion in which feed collects), grill (top portion, usually made up of spokes of varying number, size, and shape), and center cone (feed distribution mechanism). Feeders are sold to roughly forty “integrators,” who own the chickens and dictate which feeders individual growers may use.  Also of relevance, CTB also had a patent for a poultry feeder, which expired in 2010. The patent said it was aimed at providing a “barrier for preventing birds and animals from bodily climbing into the feeder yet simultaneously allowing those that do force their way inside to easily exit without sustaining injury or damaging the feeder apparatus.” (It discloses a locking brood gate and a mechanism for rotationally unlocking and locking the pan structure and grill structure together.

. . . .

Right after the patent expired, CTB filed a trademark application for the configuration of its feeder, which was rejected on functionality grounds. CTB responded and the PTO issued a registration:

The mark consists of a three-dimensional configuration of a unique mechanized poultry feeder which includes a pan structure and a grill structure. When viewed from any side, the perimeter of the feeder has a generally octagonal shape as it has two generally vertical sides, one defined at the bottom of the pan structure and the other defined at the top of the grill structure, and four generally diagonal sides which inter connect the vertical sides to the horizontal sides. Internal angles between the diagonal sides and the vertical sides are generally smaller than the internal angles between the diagonal sides and the horizontal sides. The matter shown in broken lines is not part of the mark and serves only to show the position or placement of the mark.

TM registration

CTB also sought to register the configuration and the color combination of red pan and gray grill, which was rejected on functionality grounds.  Then it sought to register only the color combination, which application was rejected multiple times for lack of inherent distinctiveness and ended up on the supplemental register.

. . . .

Another patent owned by CTB says: “[I]t is relatively well known within the agricultural industry that adult turkeys and chickens are attracted to the color red and, therefore, many adult turkey and chicken feeding trays are now colored red in order to entice the adult turkeys and chickens to move towards the red feeding tray so that it is easier for the adult turkey and chickens to find their food.” And it touts the virtues of reflective particles, which attract feeding animals, “preferably metallic flecks or flakes, such as titanium or aluminum, or any other metallic or non-metallic material that will bond with the nonreflective material of the feeder.”

. . . .

The patent stated that the area created by the grill and its individual spokes and hub allowed for the functionality of birds entering and exiting the feeder without injury.  CTB’s ads also touted a “patented feeder grill design [that allows] young birds to exit pans easily” and so on, providing further evidence of functionality. The parties agreed that the pan underneath the grill was shaped functionally. This dicated the V-shaped profile of the pan claimed as part of the trade dress. CTB argued that the section connecting the upper grill structure to the lower pan member wasn’t functional: the “two vertical walls, partly formed from the pan structure.” However, the “double-pan lip,” as touted in CTB ads, functioned to save feed.

. . . .

Color:  The parties’ products consisted of a red pan and a grill that is silver with metal flakes or shiny gray. Here’s a great legal sentence: “[I]t is undisputed that chickens are attracted to shiny objects.” CTB argued that metal flakes weren’t relevant because it was claiming only the color gray. But the use of metal flakes in a gray color scheme could be functional. Plus, the parties both used shiny gray, so CTB’s argument meant that it wouldn’t be using an embodiment its own trade dress, which the court thus concluded was red and shiny gray.  There was no presumption of validity here, and CTB’s own patent and ads touted the advantages of using red and shiny gray. Other CTB patents, and other industry patents, also identified red as functional for attracting poultry.  [If functional for poultry, why not for people?]  CTB’s witness Cole also testified that he conducted tests and found that red and shiny gray was close to the best.

CTB argued that there was no scientific evidence to support the conclusion that chickens are more attracted to these colors versus other colors. CTB misperceived on whom the burden lay, and didn’t show that the colors were “ornamental, incidental, or arbitrary” or were chosen for any reason other than functionality. Dismissing its own position in its patent as “apocryphal lore” couldn’t avoid summary judgment.

. . . .

CTB argued that it could still have rights in a color combo, but “a functional arrangement of functional parts remains functional. The undisputed evidence shows that, historically, plaintiff utilized a red pan and metal grill for functional reasons, and, more recently, plaintiff utilizes a red pan and gray plastic grill with metal flakes for functional reasons.”

. . . .

[T]he court went on to deal with remaining unfair competition claims as a matter of failure to show damages/proximate cause instead of pointing out that functionality ended anything but, perhaps, a claim for insufficient labeling. There was no evidence of any harm, just a theory of price erosion.

Link to the rest at Rebecca Tushnet’s 43(B)log

For visitors to TPV who may not have had personal experience with chicken feeders, here is a photo of one of CTB’s chicken feeders with enthusiastic consumers:

And, pursuant to equal treatment of each of the litigants, here’s a photo of an HS (Hog Slat) feeder:

In the lower photo, the chicks are beginning to fledge – grow their adult feathers. Thus, they’re fledglings.

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