Fagundes and Perzanowski (2019)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Fagundes and Perzanowski (2019)
Title: Clown Eggs
Author(s): David Fagundes, Aaron Perzanowski
Year: 2019
Citation: Fagundes, D. And Perzanowski, A. (2019) Clown Eggs. Notre Dame Law Review, 94(3).
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The study consists of an analysis of the Clown Egg Register, supplemented by a series of qualitative interviews with clowns in both the US and UK (number not specified).
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
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Abstract

“Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby skaters, tattoo artists, and other subcultures—have developed an elaborate informal scheme in lieu of state-created copyright or trademark law to regulate their creative production. Second, this Article explores a rarer phenomenon in the norms-based IP context: formalized registration related to norms-based ownership rules. It shows that the Register exists not only to support those rules, but it also serves a host of nonexclusion functions, including expressing members’ professionalism, conferring a sense of prestige, and creating a historical record. Finally, this Article shows how its analysis of the Clown Egg Register offers lessons for the study of registers in the context of tangible and intellectual property alike.”

Main Results of the Study

As with many other areas of negative space, clowns demonstrate a preference for private and informal ordering rather than formal law. The study confirms the existence of shared community norms and their enforcement:

The Antiappropriation Norm: copying of a clowns appearance, name or act is largely disapproved by the community, partly justified by economic investment (time/effort) and moral integrity (e.g. make-up as an expression of self). Nonetheless, some degree of imitation appears to be tolerated in a type of “remix” culture, so long as this is not tantamount to identical copying. Evidence of acceptance of scenes a faire in certain clown acts is also evident.

Enforcement of clown norms: reputational harm and social stigma are effective deterrents in the clown community, though many view norm breaking as an opportunity to educate. Direct infringements are uncommon, though tend to be met with confrontation, with some participants referring to a hypothetical threat of violence.

• The Clown Egg Register supplements these community norms. Whilst resembling a traditional property register (usually limited to defining scope and recording ownership of property) this confers other important functions for the clown community: it signals professionalism; it provides a sense of belonging or prestige in the community; it serves archive functions, and; may be utilised to screen out of participants who do not meet certain criteria of originality.

Policy Implications as Stated By Author

The study finds that the Clown Egg Register is an effectively designed example which policymakers should be encouraged to emulate in other industries (or which other norms-based IP communities may benefit from); particularly registers which contribute to a sense of belonging within a community, and accord prestige, may have greater appeal to potential registrants.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets