More on the Jack Kirby copyright case

From DEADLINE [Emphasis added]:

EXCLUSIVE: No big surprise that today Marvel and Disney asked the Supreme Court to deny a petition from the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby. “This case presents a factbound application of a test uniformly adopted by the lower courts under a statute that does not apply to works created after 1978,” said a response filed today (read it here). “It implicates no circuit split, no judicial taking, no due process violation, and no grave matter of separation of powers. It does not remotely merit this Court’s review,” added the media giant’s main attorney in the matter, R. Bruce Rich. ... “In likely recognition of the fact that the statutory question does not satisfy the requirements for this Court’s review, petitioners turn to a series of bizarre constitutional arguments raised for the first time in this Court,” says Marvel. “Those arguments only underscore that none of the questions presented merits this Court’s plenary consideration.”

... Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the SCOTUS this spring to hear their much-denied case. The heirs contended they had the right in 2009 to issue 45 termination notices to Marvel and others including Fox, Sony, Universal and Paramount Pictures on the artist’s characters under the provisions of the 1976 Copyright Act. While Kirby was publicly identified with much of the comic company’s prolific period along with Stan Lee, Marvel has won before in the courts under the understanding that the 262 works in question in this case the comic legend helped create between 1958 and 1963 — including many of the brightest stars in the Marvel Universe — were done under a work-for-hire deal and hence he nor his heirs have any rights of termination. With that in mind, Marvel initially waived any response to the SCOTUS petition. However, then the High Court itself requested they respond as the justices took the matter into conference. That initial scheduled May 15 conference was postponed as the Court awaited Marvel’s response.

“Petitioners alleged that their father, Jack Kirby — a freelancer who contributed to Marvel works in the form of commissioned drawings and under Marvel’s continuous supervision — held copyright interests in those works,” said Marvel today summing up the other side’s case. Now the response from Marvel is in, the Justices could take the matter under consideration. If they agree to hear the petition, it will be scheduled most likely for their next term which begins in October.
...
The case is starting to attract some superfriends now that it is in the big court leagues. Last month, SAG-AFTRA, the WGA and the DGA submitted an amicus brief to the Supreme Court in favor of having the petition granted. “The Second Circuit’s holding in this case reaffirms a test that created an onerous, nearly insurmountable presumption that copyright ownership vests in a commissioning party as a work made for hire, rather than in the work’s creator,” said the 32-page filing of June 13 (read it here). “In doing so, it jeopardizes the statutory termination rights that many Guild members may possess in works they created. Accordingly, the Guilds and their members have a significant interest in the outcome of this critically important case.”

The Kirbys are in a tough position here but I have to wonder if Marvel may yet regret pushing that "continuous supervision" line. Here's why [from the very good write-up by Michael Dean in the Comics Journal]:

The case did not go to trial, but during the discovery phase, testimonies on both sides were collected in deposition. Testifying on behalf of Kirby were Silver Age Marvel artists Jim Steranko, Joe Sinnott and Dick Ayers and comics experts Mark Evanier and John Morrow. Lined up on Marvel/Disney’s side were Roy Thomas, John Romita Sr. and Larry Lieber, but the key testimony that seemed to carry the greatest weight with Judge McMahon came from Kirby’s erstwhile creative partner Stan Lee. The 87-year-old Lee gave a two-day deposition in support of Marvel. Based on the depositions, McMahon formed the following picture of Lee and Kirby’s working relationship: Lee gave Kirby a premise in outline and then “created the plot and dialogue for the characters after the pencil drawing was complete, [and] often times ignored any ‘margin notes’ submitted by the artist with suggestions as to the plot or dialogue in the story.”

Those familiar with how a comics story is produced under the Marvel method, may have difficulty imagining how the pencil drawing for an entire story could be complete and still be in need of a plot to be added afterward by the writer, and Evanier and Morrow argued that Kirby’s creative contributions went well beyond the instructions he received from Lee. McMahon, however, acceded to Marvel’s motion to strike Evanier and Morrow’s testimony. She seemed skeptical of their status as comics “experts,” always placing the word in quotes, and expressed the view that they would not be able to add anything to the proceedings that lay persons, or non-comics-experts, couldn’t determine on their own. Also mitigating against the relevance of Evanier’s and Morrow’s testimony was the fact that they didn’t have firsthand knowledge of industry practices before 1963.

My knowledge of the law here is limited to about three minutes on Wikipedia but if the judge improperly excluded testimony, that would seem to fall under the heading of reversible error. Evanier and Morrow are arguably the two most recognized authorities on this subject and their version of the Marvel method where certain artists (particularly Kirby and Steve Ditko) would often add major story elements seems to be the expert consensus. Note Dean's line "may have difficulty imagining" (and for the record, The Comics Journal has a well respected source for a long time).

One of the experts who has often supported this version is Stanley Lieber, a.k.a. Stan Lee.

On Steve Ditko:

 "I'd dream up odd fantasy tales with an O. Henry type twist ending. All I had to do was give Steve a one-line description of the plot and he'd be off and running. He'd take those skeleton outlines I had given him and turn them into classic little works of art that ended up being far cooler than I had any right to expect."

And on the creation of the Silver Surfer:

"There, in the middle of the story we had so carefully worked out, was a nut on some sort of flying surfboard". He later expanded on this, recalling, "I thought, 'Jack, this time you've gone too far'"

Like I said. I doubt the Kirbys will win this. I'm not even sure they should. Jack Kirby made a massive contribution to the medium, but he was not a good businessman and he made some bad deals. Disney/Marvel have mistreated creators for decades but as long as they did it within the law, I'm not sure if the courts should get involved.

What I am fairly sure of is that we've seen absurd and destructive regulatory capture in the area of copyrights. The current system is unfair to actual creators. It erects barriers to entry and encourages media consolidation. It even allowed companies to snatch films out of the public domain. I hope the Kirbys win their case but the real fix for this problem needs to come from Congress, not the courts.

Vergara transcripts

I probably won't be getting back to to the Vergara Case for a while -- I pretty much had my say in this Monkey Cage piece -- but I just came across the transcripts for the trial. The section linked to here includes testimony from Raj Chetty.

Chetty has gotten in the habit of making very bold causal and predictive statements based on interesting but not conclusive studies. Before reading through all of his testimony (which I haven't done myself -- it's not that relevant to the threads I'm pursuing), I would advise checking out what Bruce Baker of Rutgers had to say about the original research.

Sometimes when you blow a something up, you just get rubble...

I know we've been over this before, but most of the fundamental ideas in the education reform movement (the magic of the markets, scientific management, etc.) are unsurprisingly popular with CEOs, ex-CEOs and other thought leaders of the business class. One of the most popular is disruptive innovation, so much so that the satiric counter-reform site Edushyster makes the overuse of the word 'disruption' a running joke.

Like many of these MBA-friendly concepts, there is some substance to the idea, but not much. While it is true that new approaches and technologies often make old ones obsolete (and cause corporate fortunes to rise and fall as a consequence), attempts to derive useful business rules to deal with this phenomena have produced little but jargon-filled platitudes supported by case studies that go beyond cherry-picked.

Jill Lepore eviscerated most of the standard examples (and pissed off quite a few Silicon Valley types) in this recent New Yorker piece. She also delved into the appeal of the idea.

Most big ideas have loud critics. Not disruption. Disruptive innovation as the explanation for how change happens has been subject to little serious criticism, partly because it’s headlong, while critical inquiry is unhurried; partly because disrupters ridicule doubters by charging them with fogyism, as if to criticize a theory of change were identical to decrying change; and partly because, in its modern usage, innovation is the idea of progress jammed into a criticism-proof jack-in-the-box.

The idea of progress—the notion that human history is the history of human betterment—dominated the world view of the West between the Enlightenment and the First World War. It had critics from the start, and, in the last century, even people who cherish the idea of progress, and point to improvements like the eradication of contagious diseases and the education of girls, have been hard-pressed to hold on to it while reckoning with two World Wars, the Holocaust and Hiroshima, genocide and global warming. Replacing “progress” with “innovation” skirts the question of whether a novelty is an improvement: the world may not be getting better and better but our devices are getting newer and newer.

As is often the case, movement reformers have not only adopted this flawed business fad; they have embraced its most cartoonish form.

I've already discussed the class and race components of Arne Duncan's quote: “I think the best thing that happened to the education system in New Orleans was Hurricane Katrina,” but he was also expressing the fetishized attitude toward creative destruction that is common in reform circles.

Michigan provides another example:

Keith Johnson, president of the Detroit Federation of Teachers, said he had expected [Detroit Public Schools Emergency Manager Roy] Roberts to discuss Monday’s upcoming visit by U.S. Secretary of Education Arne Duncan.

“When he said, ‘I’m stepping down,’ all of our mouths just dropped,” Johnson said. “I can’t say it’s a bad day. I can’t say it’s a good day, because we don’t know who’s coming next.”

Roberts also told those gathered more shocking news: His initial instructions when he arrived in Detroit were to “blow up the district and dismantle it,” Johnson said.

“He’s got nothing to lose by saying it now,” Johnson added.

Roberts said he spent the first several months of his tenure convincing state officials the district was worth saving, according to board members.

“Blow it up – those were his exact words,” Detroit School Board member Tawana Simpson confirmed.

Roberts has been trying to back away from that comment ever since he said it, but both the sentiment and the language are absolutely in line with the movement. You hear this sort of thing all the time if you follow education reform, often coming directly from the leading lights of the creative disruption cottage industry and it is exactly how you would expect Gov. Rick Snyder to frame the problem.

Of course, the disruption of New Orleans and Michigan has not proven all that creative...

Ray Fisman on Swedish school vouchers

Ray Fisman reports on the Swedish experience with vouchers and how it hasn't quire worked out as well as one might hope.  Ray Fisman isn't a naïve opponent of school reform -- he has been willing to discuss some rather strong findings arguing for improvements in how we handle teachers.  But he is pretty rough on Sweden, which apparently has more students going to for profit schools than anywhere else in the developed world. 

He rather clearly points out the basic problem:

None of this is terribly surprising—in econ 101 we learn that markets work their magic when buyers and sellers are well-informed about what’s getting bought and sold, and can therefore transact with one another without fear of getting conned. The apparent failure of the Swedish schooling experiment is a lesson in the inability of markets to solve problems where it’s hard to compare the educational “product” that’s offered, and the outcomes you can observe are subject to manipulation. It’s also a reminder that the cold, hard calculations of markets aren’t necessarily suited to the realm of education. Governments don’t shut schools because they fail to turn a profit. Private equity firms do. The parents of more than 10,000 students learned this difference the hard way last year, when the Danish private equity group Axcel abruptly announced its exit from the Swedish school market, stating that it could no longer cover the continued losses.

If we had really good, real time information on educational quality then this would be a less difficult problem.  After all, if informed decisions can be made then it makes sense that a liberal country like Sweden would want to empower parents to make the best decisions for their children.  Now, it is possible to argue that tweaking some feature of the Swedish approach could result in better outcomes -- much is possible.  But these sort of ecological examples certainly raise the bar for evidence of this approach working when it is fully scaled up (unlike something like KIPP which isn't necessarily intended to scale to all children in the US). 

Formalizing Next-Big-Thingism

Various time in various posts, I've complained about Next-Big-Thingism, often in conjunction with ddulites and the growth fetish, but while I've defined the latter two, I don't remember ever laying out the fundamentals of NBTism.

It's basically an "End of Days" belief system found widely among investors, journalists, policy makers and other 'thought leaders.' (I'm sorry, but I can't bring myself to type that term without the scare quotes.). It goes something like this:

The new order is about to emerge. All will change;

The bringer of creative destruction is already among us;

Only those who embrace the bringer will save themselves and their portfolios.

Over the past few years, personal computing, the internet, social media, mobile, the sharing economy, and the internet of things have all been, at least briefly, the new messiah. All have had or will have a major impact, but none, including the internet, have been what their adherents hoped (anyone who says the internet surpassed the hype doesn't remember the hype).

My main main complaint with Next-Big-Thingism, other than the annoying part, is that it leads to bad thinking and worse investments and that means that a great deal of money and man-hours get diverted to obviously bad ideas just because they might be part of the new order (yes, I'm looking at you, Groupon).

A lesson about Twitter, TV cameras and life in the public eye

I heard this on TPM, but surprisingly Josh Marshall left out the context and that context adds greatly to the story.

At least based on his Wikipedia page, Adam Kwasman has an impressive resume and appears to be a young up-and-comer in the Arizona GOP, but even with the assumption he was having a bad day, he also appears to be not quite ready for prime time.

Here's a more complete clip than the one on TPM.





Lots of teachable moments here.

Kwasman was embellishing when he talked about the fear on the children's faces. When he mistook the YMCA, he was innocently getting his facts wrong. If he would have done just one of these he could have come out unscathed.

The speed of social media sometimes creates a false sense of urgency. Many tweets would be just as effective a little while later and that fact-checking time can come in handy. The schedule function can be your friend.

On a related note, you should always remember the fundamental asymmetry of Twitter. There's a practical limit on how intelligent you can be in 140 characters, but the potential for looking stupid is virtually unbounded.

A similar principle holds with TV cameras, and since the advent of embed code, bad video can follow you anywhere.

Finally, one of the dangers of coming up through partisan media ('A frequent guest of the James T Harris radio show in Tucson, Kwasman has been dubbed "Captain Arizona" by the host for his consistent defense of Arizona against an overreaching federal government' -- from Wikipedia) is that if you have the proper positions, the producers and on-air talent will go to great lengths to keep you safe. It is easy for someone like Kwasman to develop great confidence in his ability to handle the media. Sometimes too great.

Helsinki's 'mobility on demand' system and the travel-time landscape

I've got a lot on my plate so I'm just going to take a very quick pass at this. I may try to get back to it later.

There are a lot of good things in the proposal outlined in this Guardian article (via Marginal Revolution), but, as with most transportation articles, there is a bit that troubles me, both because these plans have a way of bringing out the inner ddulite in people and because generalizing from Helsinki is a tricky proposition.

I don't have time to dig into these questions in any depth but I did want to mention a way of thinking about the problems I find useful. For any geographic location and set of transportation options, you can overlay on the map something that looks a bit like a fitness landscape where instead of fitness the variable corresponding to each point on the map is the expected time to travel to that point from the origin.

For pedestrians, the landscape is more or less conical with irregularities caused by obstructions (highways, mountains, bodies of water). The sides of the cone slope up quite rapidly making all but relatively short trips prohibitive.

With automobiles, the slope becomes much more gradual but the landscape becomes much more rugged. A destination five miles away (actual, not driving, distance) can take longer to reach than one thirty miles away if the first has to be reached via surface streets and the second lies along a major highway. (I found numerous examples of this in LA using Google Maps.) Furthermore, the shape of this landscape changes dramatically with traffic levels.

The really rugged landscape comes with mass transit, particularly when you leave some of the more geographically compact cities in the Northeast. (According to Wikipedia "About one in every three users of mass transit in the United States and two-thirds of the nation's rail riders live in New York City and its suburbs." That level of use combined with a highly compact population makes for a unique transportation environment.) This is true for buses, trains and airplanes, but since most people who fly can also get access to cars and taxis, the effect is somewhat mitigated for high end travelers. For those who have to depend on buses and metro lines and who can't walk long distances, the differences can become startling.

I'm sure other people have been using this landscape approach but it doesn't seem to show up in many discussions of the topic. Personally, I find it a remarkably useful way to think about these problems, particularly when talking about food deserts and other areas where transportation and questions of inequality overlap.

Unions

From an econoblog:

You might wonder how the cross-country evidence shows a positive correlation whereas the cross-workplace evidence generally doesn't. Here's a theory. People will always want better pay and conditions. This is simply because they are human. If they can't achieve these through unions they will try to get them through the ballot box, in the form of legislation.

This is actually an odd finding, as I would normally prefer to ascribe the ecological data to the ecological fallacy and stop there.  But the discussion of mechanism is interesting, plausible, and might actually explain some odd paradoxes -- but it also explains other oddities like German productivity.

So why are unions so hated:

Which poses the question: if unions are good for productivity, why have bosses traditionally been opposed to them? The answer, I suspect, lies in this paper, which finds that unionization "is significantly associated with lower levels of total CEO compensation."

If this explanation is true, we have a classic principal agent problem.  If the pay of a CEO is related to breaking unions, one can imagine that they will try to do so even if it hurts the overall profitability of the company.  Classic misaligned incentives, really.

It's not that I see an immediate return to a pro-union environment, but it does point out that we might actually have a case where markets aren't necessarily going to maximize efficiency.  And that is worth keeping in mind during these discussions. 

I know there's a verb there somewhere

Or maybe a preposition.

I'm working on a couple of ed reform pieces, one on the recent charter school scandals and another going still deeper into the role of big money in the reform movement, picking up where my recent Monkey Cage piece (Vergara vs. California: Are the top 0.1% buying their version of education reform?) left off.

The following quote, from our old friend Jennifer Alexander, might work for both pieces, assuming I can figure out exactly what she's saying.

Jennifer Alexander, the chief executive officer of the pro-charter group, ConnCAN, said she welcomed an examination of how it oversees charter schools, prompted by the Jumoke and FUSE scandal.

"I think it is an important moment that signals a need to revisit and update Connecticut's charter law so that it keeps pace with best practices nationally, including clarity around areas of accountability and transparency -- but, I think, also flexibility and funding," she said.

The part about clarity around transparency is bad enough but what's really giving me trouble is the "flexibility and funding." I think she means "but also keeps pace with best practices including flexibility and funding." Given ConnCan's well-known positions, that would mean keeping up with the states that offer charters the most freedom and money. If that's what she means, it's an extraordinary response to the latest in a string of charter school scandals that appear to have cost taxpayers billions of dollars and denied quality education to some of the very kids who needed it most.

But she could mean 'clarity around flexibility and funding,' which would be a problem since I have no freaking clue what she means by 'clarity.' Unless anyone in the audience has any suggestions, I may just give up on this one.

As Bruce D. Baker of Rutgers can tell you, trying to follow a ConnCAN argument will not be good for your blood pressure.

Sometimes it really is just because "that's where they keep the money"

Joseph and I have been having a long running debate about the emphasis of many of my education posts. I tend to spend quite a bit of time discussing culture, both specific to the reform movement and in relation to the type of corporate culture associated with management consultants and MBA programs.

I tend to see this culture as a big and interesting part of the story. Joseph is more inclined to see it as a secondary factor and something of a distraction. He argues that when there unquestionably bad actors and egregious wrong-doing, that should be our focus.

This story by Jennifer Dixon (from the Detroit Free Press's exceptional series on corruption in the Michigan education system) would be a point for Joseph.

The Summit payments to the Witucki-Cancilliari companies added up. In 2008-09, for example, the schools paid Helicon and other companies nearly $1.8 million for management fees, janitorial and tutoring.

Over time, the revenue streams just kept multiplying.

When Summit North issued $26.6 million in bonds to refinance existing bonds, pay off leases and finance an ice rink, Helicon collected nearly $400,000 for “financial services,” while a construction company owned by Dino Cancilliari and his brother built the school ice rink for $3.2 million.

In 2008, Central Michigan raised questions about conflicts after the school’s outside auditors revealed Summit North had done several deals with companies tied to Dino Cancilliari and Witucki. Under pressure from CMU [the Summit schools’ authorizer, Central Michigan University], the schools replaced Helicon, its lawyers and auditor-accountant. Witucki died in 2009.

The schools’ boards allowed the Cancilliaris to remain at the schools, with Dino Cancilliari earning $200,000 a year as facilities director and Alison Cancilliari earning $250,000 as program director. But even as she was paid to run the schools, Alison Cancilliari worked off-site — at the offices of a textbook company the Cancilliaris founded.

In 2011, Summit hired Canyon Insulation of Corona, Calif., to oversee a $4-million construction project; the company was owned by Alison Cancilliari’s brother, Kenneth Sirls. And then an anonymous tipster complained to CMU about Sirls, saying Canyon didn’t build houses, let alone schools.

In response, CMU demanded hundreds of pages of records from the schools. The schools’ finance director, Brian Beaudrie, came forward with worksheets, invoices and other records. His brother, it turned out later, was the anonymous tipster, who also went to the FBI, which does not confirm or deny investigations. CMU said it also contacted the FBI. Beaudrie alleged that:

■ Alison Cancilliari and a Dino Cancilliari company received a cut of Helicon’s management fees from 2002-07 worth hundreds of thousands of dollars, if not more.

■ Helicon billed Summit hundreds of thousands of dollars for “benchmark tracking,” but did no work.

■ Summit reimbursed Helicon $20,000 to pay off a fired employee who had threatened to expose the company for financial improprieties. Alison Cancilliari said she couldn’t find any record of the payment.

■ Summit paid a school employee for two years while she worked at the Cancilliaris’ textbook company. Cancilliari said the woman worked there only part-time.

...

The new board at Summit has a much different opinion. It has countersued Alison Cancilliari, alleging she had an agreement with Helicon and Witucki to receive kickbacks totaling $3 million.

A new post up at You Do the Math pits George Pólya against the education reform movement

Or at least it presents the opening salvos.

Pólya was a humanist. That puts him at odds with the education reform movement.

I'm a bit out of my depth with discussing the finer philosophical points but hopefully my definitions are not too nonstandard.

Here's an excerpt:

In order to see how this figures in the larger education debate, we need to introduce the field of scientific management. This field is largely based on the idea that people can be treated like any other component in a complex system. The secret to optimal performance is simply to gather the right data, derive the proper metrics, then use these metrics to put the right components in the right roles and create optimal set of incentives.

The education reform movement with its emphasis on metrics, standardization, and scripted lessons is entirely derived from scientific management. Those scripted lessons in particular represent a complete rejection of Pólya's approach of "getting inside the students head." and personalizing the instruction. Not coincidentally, David Coleman, arguably the intellectual leader of the movement, started out as a management consultant.

Another area of sharp contrast between David Coleman and Pólya is Coleman's strong support of deliberate practice in mathematics education. Scientific management is heavily reliant on reductionist approaches and their are few pedagogical techniques more reductionist than deliberate practice. Pólya was wary of reductionist approaches to teaching. He saw drills as a sometimes necessary evil, but as a rule, breaking down problems for the student was a dangerous habit. For Pólya, the process of problem solving was about taking problems and examining them, restating them, generalizing them, simplifying them, comparing them to other problems, and, yes, breaking them down into sub-problems, but the important part of that process is deciding what to do. To break the problem down for the student is to defeat the purpose.

Many, if not most, of those horrible, multi-step math problems which have become associated with Common Core are not what Pólya would consider problems at all. The problem solving has all been done in the preparation of the lesson; all that's left for the student is the mechanics.

Watching a Variety editor pull back from the obvious on Netflix.

Over at Variety, Andrew Wallenstein has a smart analysis of Netflix’s hiring of Chelsea Handler. Unfortunately he can't quite bring himself to follow where his arguments lead.

From the beginning, Netflix chief content officer Ted Sarandos has been abundantly clear that what Netflix values most is a piece of content’s ability to continue attracting eyeballs long after its premiere. That’s why there isn’t a single episode in its vault of original and library content that isn’t at least semi-serialized storytelling. That’s why Netflix doesn’t care about ratings–because Netflix doesn’t care when you watch something.

But the talk show represents the diametric opposite of the content Netflix has concentrated on to date. It is known to be the most perishable of TV formats. While cable has done some day-after syndication deals to repurpose broadcast late-night shows, there’s never been any kind of aftermarket for late-night content. The conventional wisdom is that no one wants to see monologue jokes about a headline from two days ago, or an interview with a celebrity tubthumping a movie that came out the previous weekend.

What little Netflix has also shared about its programming strategy is that its every decision is guided by data. Spending $100 million on two seasons of “House of Cards” sight unseen, as the mythology goes, was informed by information about Netflix’s viewing audience that indicated robust consumption on the streaming service of Kevin Spacey, David Fincher, and the BBC drama on which it was adapted.

Does that mean algorithms told Sarandos to pursue Handler, too? Fat chance. Not only is she not on Netflix, but no talk show of any kind is. That’s probably an oversimplification of Netflix data capabilities; this decision may have been more guided by what the data says is missing from the service than what’s there. But that’s not much to go on.

[This is where Wallenstein starts getting sucked back into the narrative. If we're talking about high level data -- demographic breakdowns, audience clusters, etc. -- then "what the data says is missing" makes a certain amount of sense. You find shows that are strong where you'd like to be stronger. The trouble, there's nothing special about that. ALL large companies do that kind of analysis. The famed "Netflix data capabilities" are supposedly based on detailed customer-level data which doesn't seem applicable here.]

So if talk shows are perishable and data didn’t work its magic, what gives here?

Well, there’s two different ways to view the Handler hire: as a deviation from a core strategy or the formation of a new strategy. Either way, the move begs explanation.

First, consider the possibility that Handler is just a detour. Fine, Netflix’s success has provided enough insulation in the event that taking a flier goes badly. But surely there’s a rationale for this particular flier.

The rationale might be more understandable if you consider Handler less as a programming strategy and more as a marketing decision.

Netflix wants to be known to its audience and the creative community as a revolutionary upending our traditional notions of what TV is. It’s a smart tactic, though the actuality of its revolution-iciousness is questionable. To date, that brand positioning has rested largely on its audacious decision to provide all the episodes of a series at once. But the novelty of that will wear thin in time (and Netflix knows it was far from the first to introduce that behavior).

Netflix might argue that its original programming slate is so daring that shows like “Orange is the New Black” also set it apart from the rest of the TV pack, but that’s a charitable assessment. As amazing a track record as the company has built for itself, Netflix isn’t really doing anything in original programming much different in tone or style than anything else on pay TV.

So Netflix has to do something to up the ante to earn its bona fides as a true innovator.  There’s no better way to do that than to take on what is inarguably TV’s hoariest, cliche-ridden format–the talk show–and put Netflix’s own distinctive stamp on it.

Stylistically, Handler isn’t really all that different than anyone else in the talk-show genre. But the very fact that she is a woman in a male-dominated genre sets her apart from the pack, which Netflix no doubt loves. What Netflix will also do is figure out one or two things to put a fresh spin on the genre and then trot out the show as the latest example of how capital-d different Netflix is from everyone else.

...

But maybe writing off Handler as a marketing-driven loss leader underestimates just what Netflix is doing here. The other possibility is that she represents an honest-to-god turning point for the streaming service. The long tail may have always been a short-term strategy. Perhaps the Netflix brain trust has a vision for a second gear for original programming that it has barely hinted at to date, but Handler is the first glimpse at where it’s all going to go.

At the end of the day, there’s one very simple metric for success that matters to Netflix: subscriber totals. And nowhere is it written that can only be increased with content that has equal drawing power whether it’s watched today or 10 years from now.

...

There’s a lot more to the Handler deal that makes little sense. Given Netflix’s increasing global footprint, Handler seems an odd choice for the type who would play as strongly in Brazil as she would in Peoria. And hoping quarterly specials in 2015 will be enough to keep her a hot commodity until a 2016 launch gives her an awful lot of time to see her career risk cooling down.

Regardless, it’s a mystery at this point as to whether Handler represents an outlier or a pivot for Netflix. And the truth may very well be that Netflix itself doesn’t know the answer but has a willingness to experiment and see what its famous data tells it to do next.

Just to summarize:

1. This was not a data-driven decision (at least not the kind Netflix has built so much of its reputation on);

2. It appears to be a horrible fit with the long-shelf-life streaming programs that Netflix specializes in (without actually owning);

3. Handler will probably be worthless in the overseas market where Netflix has got to establish itself if it wants to compete with HBO.

While most of Wallenstein's analysis is spot on, in the end, he goes badly off track. He more or less locks himself into the assumption that there has to be a good reason for this acquisition, a reason that fits in with a smart, forward-thinking plan for the company. He can't quite make the jump to the third option.

It is possible that Netflix, an at best moderately profitable company with skyhigh price-to-earnings ratios and questionable accounting practices, might be something like a Ponzi scheme with an exit strategy where the longer the top executives at Netflix can keep the balls in the air, the more money they make and, if they can keep this up long enough, there is a very good chance that a company with an  actual business model and deep pockets (either a tech company like Microsoft, Apple, Google, Amazon, or media players like Viacom) may come along and pay obscene amounts of money for the lot.

In order to keep this game going, Reed Hastings, Ted Sarandos and company would need to bill themselves as strategic thinkers playing for the long term (thus justifying those PE ratios), while in reality pursuing a string of flashy short-term tactics such as paying more for a limited rights window for an original series than their competitors would pay to own the show outright or picking up a high-profile cable personality even if her program is the worst fit imaginable for the company.

A bit more background on the Jack Kirby IP case

And on the way comic book IP works in general.

For the non-nerds in the audience, Thanos has been a major character in Marvel Comics for over forty years. Perhaps more important from a commercial standpoint, The character figures prominently in the Avengers movie franchise (he's the villain behind the villains). We could go back and forth over the exact numbers but it's safe to say that this particular piece of intellectual property plays a significant role in an enterprise that has pulled in billions of dollars of revenue.

All of which means you don't have to be a comic-book fan to have an interest in where these ideas come from.

Famed comic book writer and artist Jim Starlin tried several times to get his artwork and creations into the pages of Marvel before hitting a homerun with Thanos (the god-like alien being with a bloodlust for power and control over the universe). In 2002, Starlin told Jon B. Cooke where he got his inspiration for Thanos as part of an interview in his popular series Comic Book Artist (#2):

Kirby had done the ‘New Gods’…over at DC at the time. I came up with some things that were inspired by that. You’d think that Thanos was [initially] inspired by Darkseid, but that was not the case. In my first Thanos drawings, if he looked like anybody, it was Metron. I had all these different gods and things I wanted to do, which became Thanos and the Titans. Roy took one look at the guy in the Metron-like chair and said : “Beef him up! If you’re going to steal one of the New Gods, at least rip off Darkseid, the really good one!”

There are a few interesting takeaways from this.

The first is a reminder of just how much intellectual borrowing has always gone on in the comic book industry. As mentioned before, even the iconic Captain America had to be tweaked because the original version bore an uncomfortable resemblance to a character called the Shield.

This is also a reminder of just how long a shadow Jack Kirby cast over the comic book industry. Though the current lawsuit only affects those characters Kirby created or cocreated at Marvel, it is important to remember just how far his influence ran . For all the money that Kirby's work has brought into the industry over the years, it is quite possible that between operatic superheroes, bickering teams, romance comics and the rest, even more came from people imitating his innovations.

Finally, this doesn't reflect all that well on Roy Thomas who was one of the witnesses Marvel/Disney called in to argue that Kirby's heirs don't deserve a share of the rights their father helped create.

Spam

Spam has hit the double digits in spam posts/day.  I have re-enabled word verification, pending a better solution.  I apologize for the confusion.

"Are you sure I had a point A?" -- Ramesh Ponnuru's rhetorical misdirection

NOTE: THIS IS NOT A POST ABOUT ABORTION, OBAMACARE, SCIENTOLOGY OR THE SUPREME COURT, BUT I'M PRETTY SURE THAT ANY COMMENTS WE GET WILL BE ON THOSE FOUR TOPICS SO I'M TAKING THE VERY UNUSUAL STEP OF SHUTTING DOWN THE COMMENT SECTION FOR THIS ONE POST.

We've previously discussed something I call the cigarettes and cocaine argument.

"We just don't have the money for you to keep smoking. Do you realize that between your smoking and my cocaine habit we're spending more than two thousand dollars a week? You're just going to have to give up cigarettes."

There's a related bit of rhetorical slight of hand where the speaker is asked about A and B. He replies "I would love to talk about A and B." He then launches into a side topic, continues until the audience has lost the thread, then says with a bright, confident smile, "As I said a moment ago, I would love to talk about B, and then a few moments later, "I'm glad I could answer your concerns about A and B."

Case in point, here's Ramesh Ponnuru on the recent Hobby Lobby ruling:

Experience should also inform our evaluation of one of the main arguments against the ruling: that it will bring forth lawsuit after lawsuit as Scientologist employers make religious objections to covering antidepressants, Jehovah's Witnesses balk at covering blood transfusions and so on.

That's the argument with which Justice Ruth Bader Ginsburg closed her dissent to the decision, along with the warning that ruling on these cases will require courts to judge "the relative merits of differing religious claims."...

[Stage business and patter]

Let's say an employer did seek an exemption -- under the Religious Freedom Restoration Act that governed the Hobby Lobby decision -- to a regulation requiring him or her to cover blood transfusions. The key questions for a court would be: Does the employer have a sincere religious objection to facilitating a transfusion for someone else? Does the regulation serve a compelling interest? Does it impose a substantial burden on the employer's beliefs? And is there a way to serve that interest while imposing a lesser burden?

None of those inquiries, performed the same way Alito performs the inquiry in the Hobby Lobby decision, requires passing judgment on whether the religious belief is a sound or compelling one.

There may be a case filed here or there. But nothing in the past or present suggests there will be a flood of litigation about Scientologist health plans. The courts aren't going to be passing judgment on the wisdom of different religious teachings. And access to blood transfusions will be affected by this decision even less than access to contraception will be.

Notice something missing? We have a perfectly reasonable example arguing that it is unlikely that a business owned by a Jehovah's Witness is likely to prevent me from having medical coverage that includes blood transfusions. That seems reasonable in large part because, as far as I can tell, Jehovah's Witnesses don't seem to care all that much if a lapsed Presbyterian such as myself has a blood transfusion.

Is the situation roughly analogous with Scientology and psychiatry?

I'd have to say no.

(I live in LA an I drive by this place all the time.)

Do Scientologists have a sincere religious objection to facilitating psychiatric treatment for someone else?

Hell, yes.

Does it impose a substantial burden on the employer's beliefs?

Damn straight it does.

Ramesh Ponnuru is, of course, playing the very lucrative Brooksian game of presenting a palatable conservative face to the kind of people who read the New York Times or Bloomberg View (as does, in a sense, Bloomberg himself). If the discussion turns to LGBT discrimination or Scientology vs. psychiatry, Ponnuru may not be able to pull that off so he drops a handkerchief on the inconvenient part of the table when he hopes no one is looking.

Like I said, this isn't a post about abortion, Obamacare, Scientology or the Supreme Court. We can productively disagree about all of those things, but if we can't agree on the need for good honest arguments we won't get anywhere.