19 June 2017

Presolstice Sausage Platter

No real theme here today, just a couple of semirandom sausages each more resembling a "rope" than a "link" sausage. Sort of; I think this metaphor is getting a wee bit overstretched.

  • I have to laugh at the earnestness and colossal ignorance found in a piece trying to explain Marvel's recent "cancellation" of its Black Panther comics:

    Quite simply, World of Wakanda wasn’t selling well enough — but the solution isn’t as simple as going to your local comic store and buying more copies of Gay’s books. That’s because, in Marvel’s eyes, the number of copies of World of Wakanda that were sold in comic book stores was decided months ago. Considering the numerous ways and formats in which we are now able consume different kinds of pop culture, from books to music to television shows to movies, the comic book industry is unique in that it still relies on an outdated method of distribution.

    Every major US comic book company — Marvel, DC, Image, etc. — relies on one company, Diamond Comic Distributors, to print and ship their books to independent retailers, a.k.a. the owners of comic book shops. Diamond sells comics to comic book shops as final sale, meaning owners aren’t allowed to return or exchange books that didn’t sell. This is in contrast to traditional book retailers, which can sell back the books they weren’t able to sell.

    "Marvel canceled Roxane Gay and Ta-Nehisi Coates’s Black Panther comics. The problem goes beyond Marvel" (16 Jun 2017) (italics in original, hyperlinks omitted, inept quasijournalistic paragraphing corrected).

    This particular screed — as reasonable-sounding and generally accurate as it is — misses reality by implicitly claiming that "books to music to television shows to movies" are all distributed so inherently differently from and superior to comics that it's just the distribution system at fault. Not so much; a nonexhaustive list, in no particular order—

    • Just try getting digital works into the library market (which is not exactly trivial, and especially so for teen/YA material like many digitized comics) without being on Overdrive. Just try. Better yet, go to your local library and request an e-book from a major university press that is not obviously a purely academic work and see what reason you're given for the library's refusal to acquire that work — say, any of Michael Klarman's well-written, accessible works on the history of the US Constitution, published by the Oxford University Press.
    • The later-in-the-piece description of "pre-ordering" still describes exactly how commercial publishers treat all works. The only distinction — and it's a narrowing distinction given the recent wave of reconsolidation — is that book distribution is oligopolistic, not monopolistic. Otherwise, the tyranny of pre-orders is exactly the same… and it's actually even worse in non-comic periodicals.
    • Holding up the returnability of books as a feature, not a bug, is more than slightly insane, especially for trade nonfiction… if only because the timing of "returns" and "returnability" was set in the 1930s, ignoring countless changes in both production and fulfillment technology/practices and financial systems that should have collapsed the timelines (but haven't because that would be to the publishers' disadvantage — the current system favors them because it delays and reduces payments to authors). And it's not only that.
    • It's really no better for music. Perhaps you might recall, a few years ago, that an antitrust consent decree was entered against the major distributors of CDs… and if you really think things are better in listenable/downloadable distribution, you haven't been paying attention. The details differ slightly, but that's about it.
    • Television is a laughable distinction, again being an oligopoly-with-conscious-parallelism instead of monopoly issue. Realistically, even "cord-cutters" are still stovepiped through a very small range of distributors, at remarkably similar prices when recalculated on a per-viewer-hour-expended basis.
    • Movies? Really? Does this writer understand a damned thing about film distribution, whether first-run or otherwise, whether archly-commercial-aspiring-blockbuster or anything else?

    Overall, this article gets a C-. It accurately notes problems in comic distribution (and that's leaving aside any particular perfidy at Diamond itself, which is nontrivial but difficult to demonstrate at article length). It stumbles, however, in trying to overdistinguish those problems from the rest of the distributed-copies-of-entertainment industry so as to make its own chosen subject seem unique and important. It ultimately founders in its ignorance of the nondistinctiveness of oligopolies (especially once conscious parallelism is considered) and monopolies, and particularly so in the distribution as opposed to manufacturing phase of an industry.

  • In an interesting decision this morning, the Supreme Court decided that if it's ok for Paul Cohen to wear a jacket proclaiming "Fuck the Draft" in a courthouse (despite posted rules demanding decorum), it's ok for a music group led by a man of East Asian ancestry to call itself "The Slants"… and register the trademark in the name. Frankly, Matal v. Tam is not a hard case: As the Court held (PDF slip op.), the Lanham Act's prohibition of registering marks that "disparage… or bring into contemp[t] or disrepute" anyone (whether alive or not) facially violates the First Amendment. (The court failed to note that sometimes this is more subtle, such as the Aunt Jemima mark, than "mere word marks" can easily communicate.) On this point, the court was 8–0; there was only a nominal plurality for part of the reasoning, but all eight judges (the matter was argued before Justice Gorsuch was even nominated) affirmed the Federal Circuit's judgment below rejecting § 1052(a).

    The key point (which is not all that clear in the opinion) is that although a mark and its registration by themselves constitute commercial speech, the government's actions in registering (or refusing to register) a mark are most emphatically not. The government's actions are, instead, intertwined with the First Amendment's prior-restraint-on-speech issues… because registering a mark is as much, itself, about the markholder's own speech as anything else. Tam obviously makes possible the registration of such marks as "Jailbird Hillary" or "Lying Donald" so long as they meet the other requirements of the Lanham Act (use in commerce, first use, etc.). On the other hand, there's something darker in here, too, given the intertwining of commercial, "moral," and political speech in things like branding and advertising of contraceptives… or the converse.

    Of course, the NFL and its intransigent Washington-DC-based franchise will welcome this decision as some kind of vindication. That ignores that whether something is constitutional (or not) often has very little to do with whether it is a good idea (or not)…