Today's episode is a conversation with MSCHF from the Fake Symposium. It was recorded on September 23, 2022.
Fireside Chat: John Belcaster, General Counsel of MSCHF, John Belcaster, General Counsel of MSCHF, John Belcaster, General Counsel of MSCHF, and Megan Bannigan, Partner, Debevoise & Plimpton, in conversation with Jeanne Fromer, NYU School of Law and Engelberg Center on Innovation Law & Policy.
Announcer 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. Today's episode is a conversation with MSCHF from the fake symposium. It was recorded on September 23 2022.
Jeanne Fromer 0:20
And so, this despite the presence of only virtual fire, we will have a fireside chat. We will be having a fireside chat now. Less panel like even with all the folks up here, and so I just wanted to do some quick introductions and then we could dive into learning more discussing more what mischief does and how that relates to fake. So first, let me introduce Megan pan again. She is a partner at Deborah boys and Plimpton does trademark litigation among other things, and is representing mischief. And I'm also here with John Bell caster. So would you like to introduce yourself? Sure.
John Belcaster (1) 1:06
Hi, John Belcaster and the General Counsel, here at MSCHF
John Belcaster (2) 1:11
a pleasure to be here. My name is John Belcaster and this just general counsel.
John Belcaster (3) 1:15
Yes. And I am John Belcaster, the General Counsel at MSCHF. Well,
Jeanne Fromer 1:22
thanks for joining us today. John, can you give us some background on mischief? Its founding its purpose.
John Belcaster (1) 1:32
Sure. I think maybe just to settle the nervous system a little bit. I'm just like to offer this as a side deviation, a brief, very short guided meditation. So we'll go juris prudence, one more jurists, Britain's and to be honest, I don't quite know what that means still after all these years, but maybe we can figure it out. So background on mischief, mischief is sort of the the problem child of art and capitalism. And we are playing in a gray space, and I think, a lot of other people.
And we're trying to test the boundaries of how art can exist inside of capitalism and do so in a dignified way that really retains the aura of art.
John Belcaster (2) 2:30
If I may, if one were to ask the General Counsel, what is mischief, you get three different answers. Likewise, if you were asked the three key members of the collective but his mischief, you'd get 32 different answers. But to me mischief is the Venn intersection of art and science. And Steve Jobs by way of Albert Einstein reminds us to do it is at that intersection, where magic can
Jeanne Fromer 2:58
we make sneakers? Wanna start? I'd love to. Let's see, we have some great slides here. Do you want to like show us some of the projects that you've worked on? Because I think that'll be a great way to explore some of the questions
John Belcaster (1) 3:15
about they can really slightly confused what's going on because I thought it'd be a normal animal. I wasn't sure what was up with these guys, but I'm definitely happy to to walk through. Sure. So let's see we have some fires on the side. Fireside Chat. Is this advancing?
Unknown Speaker 3:35
Good. Right. You're angry with us,
John Belcaster (1) 3:38
but to the right. You need to highlight the screen again.
With the screen. Working There we go. Okay. Quick show of hands before we get going. Not a lot of legal professionals show of hands who here has committed a crime? Don't be shy. About half of the audience.
John Belcaster (3) 4:06
All right. Okay. We'll come back to that later.
John Belcaster (1) 4:11
What is this is guns to swords. I think this really exemplifies a lot of what mischief does which is to take not not a logo, not a piece of media or piece of art to take an entire functional chunk of how the world operates, in this case, a gun buyback program. And so here we have Grimes at the Met Gala, and she is styled with a sword that is made out of real guns. That mischief bought back as a gun buyback that will instead of giving you money, we'll give you a sword. And so here we have Grimes a plane with that. This is the $76,000 Birkenstock made from actual Birkin bags. You know this, this shows it right we're cutting and ripping out a piece of, of existing iconography, but we're making it undeniably ours. In this case, the pawn of the Birkenstock the Birkin bag. And I think this really sort of exemplifies a lot of mystery of ethos, which is this idea that nothing is sacred all and culture as we've heard so much throughout this panel is really ripe to be played with as artistic material. And I think what sets mystery apart to some extent is that we really do have deep artistic background, there's a level of craft here that I think is actually quite refined, and allows us to do really very artful objects. Of course, this would not be complete without speaking about the Satan shoes. So the Satan shoes. I mean, you probably know about this already. Show of hands, who knows about the same issues? Looks like basically everybody
John Belcaster (2) 5:59
okay, if I made a mistake panel, this is a real Nike shoe injected with real human blood authentic not counterfeit artwork
John Belcaster (1) 6:19
yeah, as I was saying, so yeah, it's injected with real human blood, it's an artwork. And yeah,
John Belcaster (2) 6:31
it's really little NAS X who collaborated art form
John Belcaster (1) 6:35
not sure that's really John Bell caster, however. Okay, so next up, this is one of the pieces nearest and dearest to my heart. This is severed spots. So some of you may be familiar that Damien Hirst has frequently created these fairly insipid wall arts that are comprised of colorful spots. And that has been a clear correlation with the explosion of all the overvaluation of assets we see writ large throughout culture in the last 20 years or so. And he's managed to take that spirit of financialization and have a field day with it as he becomes the presently most high earning most valued, fine artists with the highest net worth. So we saw it, it must have that there was a trend where there were some attempts to sort of fractionalize art. There's platforms like masterworks to try to get you to own a little, a little piece of art. And sometimes, mischief likes to take the more literal gesture and so we decided that we would, we'd fractionalize Damien Hirst, so that we could democratize the spot paintings. And we did so with an exacto knife in this case, as you can see here. And so this was an opportunity to really test the limits of where the ownership began and ended we think we created a clearly a transformative work here. And we were able to sell a spot at a much more affordable entry price.
Jeanne Fromer 8:16
John, let me ask you a question about this. Um, would mischief still consider this work a Damien Hirst? Once it's cut up and sold the way you've done it?
John Belcaster (1) 8:32
No. I think it's, you know, there's maybe an analogy to be drawn in the way that I seem to have had my own identity split across several people. And you might even ask, you know, am I these separate original John Bell casters and
John Belcaster (3) 8:50
if I use a Crayola marker on a piece of paper to create an artwork, it's not a Crayola, right. It's a it's a John Bell caster. And we feel the same way about this. We, we took the spots, we cut them up after that. They're just they're just the material.
Jeanne Fromer 9:07
Did you ever hear from Damien Hirst about this?
John Belcaster (1) 9:10
I think he was quietly displeased, but has not come forward publicly. Okay.
John Belcaster (3) 9:17
I think you liked it.
John Belcaster (2) 9:22
I heard you bought some of the spots.
John Belcaster (1) 9:28
Yes, so this is the vinyl blade. The vinyl blade is a playable saw blade record. This is a collaboration with the artists the weekend. And, again, this is the idea of of mischief, perpetuating the
John Belcaster (3) 9:48
Ark of the cultural ready met.
John Belcaster (2) 9:50
We heard. We heard about scarcity yesterday. In collaboration with the weekend mischief created 10 works of this art. And mischievous business manager was a little mystified. He said to us just 10 or 8 billion human beings on the planet. Why the scarcity?
John Belcaster (1) 10:15
Yeah, interesting. So yeah, again, this is we see this as as as really sort of picking up and continuing where were Duchamp left off he, he fancied the urinal, and in 2022 mystery was interested in and DeWald sawblade. And this clearly becomes a a novel object, I believe there's actually a patent pending on this object here. And it was quite a quite a journey. There's only so many direct metal mastering facilities in the world and I don't think that they were prepared to be engraving on a an actual saw blade that could chop your hand off. But that is something in the spirit of ministry, I'm not quite sure what this one is, looks ever so familiar.
John Belcaster (2) 11:12
This baby ought to be Megan's baby here. But before we before we do that, yesterday, Amy Adler and both Marcel Duchamp. And what we need to recognize with this art form is that we can draw a straight line from the modern art of Marcel Duchamp, Rue iWave in his ready made the urinal through Ai Weiwei, the cultural ready made to the art of mischief. And this is art not by proclamation or Fiat. This is art by leaning into a cultural icon, the vans old school skate shoe. And expressing against that, creating against it, liquefying it, we heard yesterday about certification in Providence. Each of these art forms came with a provenance where our artists leave straight into Rene marguerites. Sexiness problem, right? This is not a pipe. This is not a sketchy.
Megan Bannigan 12:17
So I think one of the fundamental things and we're going to talk a lot about this and in fact, I see some brief writing that I actually wrote on the slide, because there is a pending litigation being argued before the Second Circuit next Wednesday. One of the fundamental foundation questions you have to ask yourself is, who wins mischief? And why are they doing what they're doing? And I'll be completely honest with you. It's a question I had to ask myself. And safety issues complaint first came across our desk, like, Who are these guys? And what the heck are they doing injecting blood into a sneaker? Otherwise, anybody's blood here and those sneakers come in? And so why don't? John, it did come here? I couldn't find it. John today, by the way that Jen stepped back a little bit and tell us who is mischief? And why are you doing this? Because we can talk about all of your drops? bi weekly drops, you all should download the app if you don't have it. What is this? What is what is your purpose in doing this? Is it to make money to get headlines? Is it I've heard this often is it to get sued?
John Belcaster (1) 13:33
Why are you know,
John Belcaster (3) 13:34
the suing is mostly just a marketing gimmick, I would say but the goal ultimately, I think as everyone's goal is to make money. And nothing really brings the kind of goal is to make art. We make money, not art, I make money and to be we make money from the art.
John Belcaster (2) 13:54
To be clear, you can't be an artist unless you're a starving artist.
John Belcaster (1) 13:58
We're not necessarily starving, but we're not super well fed either.
John Belcaster (3) 14:02
I'm doing okay. But I mean, it's, you know, I think really, this shoe I will say my legal opinion on this shoe is that my mother says it looks better than events. So I think that really stands for something.
John Belcaster (1) 14:17
I'm not personally familiar with Vance. It looks nothing like when
John Belcaster (2) 14:23
Megan have a charming story about fans. When we were deep into business negotiations with fans and got so deep we were writing press releases and all one would have been starting lifting the veil a little bit on that.
Megan Bannigan 14:35
Let me back up a little bit. This shoe is the way that maybe I'm assuming if you've heard of the scenes, you heard of the wavy baby. The wavy baby is an artwork. It was put out by mischief in April of this past year, a couple of months ago. It was designed by mischief by taking a photograph of the iconic bands skate shoe, putting the photograph or did It'll filter, liquefying it, I think the actual filter was called Liquify. And coming up with this photo of a breezy looking shoe, something of what you see here it was, then they went and made the shoe. They worked with factories, back to certain factories didn't want to accept it, because you had to mold the soul shoe. There's a whole story here. I can send anybody our second circuit brief, which I think is very well written. I would say myself, if you'd like to read it, we agree. Anyway,
John Belcaster (1) 15:34
it was expensive to pay for. We thought it was going to be pro bono. And it might still be
Megan Bannigan 15:43
Dr. David Bernstein sitting right over there, please. Anyway, Vance was not so happy with this huge job. And in fact, there was some news about this, you drop a cease and desist letter came in. We had some negotiations with fans, before it actually dropped to see can we avoid this lawsuit? And without getting too into detail of our privileged conversation, some of us thought we might be close to avoiding a lawsuit until Vance lawyer said, Is this even real? Is this settlement? Am I part of a mischief project? What How can I believe anything? You're saying that now
John Belcaster (1) 16:22
ask myself the same thing.
John Belcaster (2) 16:25
And the next part of that story is when I took that anecdote to the founding team of mischief and explained to them that van stopped, we were trying to pull it over on through this business negotiation. And without missing a beat, the founding team looked at me and said, Well, you know, John, you are not the general counsel of mischief. You are just an intern. You've been hired as part of a marketing play. We looked at your background, we thought it'd be a nice marquee piece for us. You're not our General Counsel.
John Belcaster (1) 16:54
That's correct. He's not the general counsel.
Megan Bannigan 17:00
Anyway, the lady baby is a great example of what Miss Jones says. They've taken the iconic skate shoe. They've put out a new piece of artwork with commentary arity Ben shoe, Harry parodying iconic nature of a skate shoe, and how that skate shoe that was developed to be as cool Southern California shoe has become a mass produced commodity, most popular with high school students throughout the United States. How this cool, iconic Southern California shoe now is sold in digital form, you can put it on your avatar and your Roblox, and you know, what is happening? How is this world becoming digital creations? And can we get out of it? And we and digitize ourselves? And what happens? What does it look like? Does it look totally warped? Like the wavy baby?
Jeanne Fromer 18:04
So if I could just turn this into legalese for a moment, how do you use that to stake out your position defending mischief against fans in this
Megan Bannigan 18:15
case? So man sued for trademark infringement, he said that this shoe is likely to be confused with our iconic shoes with our trademarks. They have trademark protection, many aspects of bands designs, and the question becomes where does the First Amendment come into play? If this is art, and expression, expression is protected by the First Amendment. And so I'm sure many of you are familiar with the Rogers kamati case. It was It was developed in the Second Circuit, it has a life of its own now. But But Rogers B Grimaldi addresses, what are the First Amendment considerations when there's artistic expression or expression at play, and trademarks at play? So can you use somebody else's protected trademark as part of your expression? And the tests are doing that is a simple test. The first factor is, is the use of the trademark artistically relevant to the work that you're putting out. And to is it explicitly misleading? Have there been any statements they this is a fancy shoe or something that would explicitly mislead consumers. And so, you know, this is our First Amendment protects art, and there's been many arguments against that. Oh, this is a sneaker. This is wearable. 4000 of these were sold. Obviously, that's commercial. But that's not the test or whether when the First Amendment applies for Amendment protects expression. And they certainly artwork and expression here.
John Belcaster (3) 20:06
I would like to draw attention to the bottom right corner of the screen here because I think this is one element amongst others. But this one element alone makes this an artwork. And that is I mean, Who here is familiar with the American painter George W. Bush? Almost everybody, right? And I think shoes typically do not play in do not reference art history. But in fact, the entire logo of the wavy baby shoe, this baby falling off the Segway is a reference to that great American painter, George W. Bush, seen there falling off a Segway in that famous photo. Everyone knows this photo, right?
John Belcaster (1) 20:51
We zoom in a little bit.
John Belcaster (3) 20:53
Yeah, we could zoom in on that. Real photo zoom. We don't have zoom lens. Just imagine that picture really big and really clear. And I think you'll you will, I mean, undoubtedly, a normal a Nike Cortez a converse high top does not reference art history, right. But here we have on the back of the wavy baby shoe, a direct reference to one of America's most well known
John Belcaster (1) 21:22
painters. We've also ensured with a warning on the bottom of the soul that you too, can tumble down and fall on your face like George W. Bush, if you were the way the baby's, which we think is slightly different from what you would hope to get out of a typical shoe.
Megan Bannigan 21:42
So So why are we in the Second Circuit next week or the Second Circuit? Because we were in the Eastern District of New York. In April, the judge ruled that this was an infringement and granted a preliminary injunction against mischief so he can no longer display show. So do anything with this artwork. And the judges argument was, I think that there's going to be confusion here. And I understand that you're making a First Amendment claim, you say that this is a parody. This is not a successful parody. And therefore, the First Amendment does not protect what you're doing here. This is trademark infringement injunction granted the opinions and not address the Rogers test at all. It did not address the fact that a parody does not have to be subjectively successful, in order for it to be protected speech and protected expression. And it didn't address any of the complexities of the speech that's right on it in the form of segue parity. The fact that the shoe itself is artwork, or the message regarding the digital society in the warped nature of our lives. So on Wednesday, it will be argued before the Second Circuit, we're going to be arguing that Rogers should apply and apply the correct Rogers test. This is certainly protected speech under the First Amendment, and the injunction was also a prior restraint. So it should be a lively argument. Many parties have weighed in or seven amicus briefs, it's a it's a topic that everybody in the trademark community is watching.
John Belcaster (2) 23:35
Here's an example of one of our latest artworks titled ketchup or makeup. So collaboration with Rihanna and your cosmetic company venti, this is not a collaboration with Heinz ketchup. Here is the RPS. Now we're going to take you deep into the we're gonna go under the hood, or we're gonna go deep into the plumbing of mischief and so that we can all experience what it's like to be the general counsel of the show. I don't want to put any words into John's mouth here, we can go to the next slide. Shortly before the drop, Heinz ketchup, places full page ad in New York Times. And then our General Counsel, this is slack. Puts out this alert, everybody collected, hey, Heinz ketchup, this rendus full page ad. And what Heinz is saying is take Heinz ketchup put through the AI engine and this is your output. Next slide. That content John can jump in anytime and I'm getting this wrong that prompted him to urge the collective to run catch up ketchup, her makeup. The title of this art piece threw down for those of us who don't know dolly is an AI engine, but ketchup or makeup into the engine. What does dolly Create by way of art in what dolly created is in the lower right. Next line. In mid journey, another AI engine took that same input capture for makeup and created this next line. Then John got really curious and he said, Can we also just run ketchup through an AI engine? Because it would just be mystifying to catch big corporate big IP in a full page New York Times lie. Next slide. upper left is what Dolly the AI engine put out when ketchup was fed in as an input. On the right we see what mid journey put out when ketchup was placed as an input. Lower Left remind everyone remind us all this is what Heinz says the AI engine created when ketchup was placed in artificial intelligence. Next slide. Then the wheels really got spinning under one of our engineers Josh Wartell. Coincidentally or not so coincidentally, the creator of Wordle puts this out in Slack. And He lets us know that these liquid AI did all these corporate use cases are a fun, they're a nudge. They are heavily curated by human beings. Um, let's go to the next slide. And then this is John don't want to speak for him. He says he says fascinating. So now what we have here is artificial intelligence, which is refined by human intelligence and let the purpose or like let's find the artificial intelligence answer that we're looking for. Last point right here lower right for all of you lawyers in the audience. I'm sure John would be just fascinated to co author a piece about false advertising in the age of artificial intelligence, the artificial reality of artificial intelligence. Talk about going really meta on what is real and what is fake. If the artificial engine itself is artificial. We're D deep into a metaverse.
John Belcaster (1) 27:24
Not quite sure what he's talking about, but we'll keep proceeding.
John Belcaster (2) 27:28
And then the capstone for this piece. Now, again, this is not a collaboration with the Heinz ketchup. Right, this collaboration with Fenty. But after mischief drops this art for you go to the Heinz ketchup official Instagram account in What does big corporate do they appropriate without our permission, our artwork?
And they claim ownership over our artwork. Now ask yourself, what kind of world are we living in?
Megan Bannigan 28:01
So let me ask you catch up for lipstick.
John Belcaster (3) 28:06
This one was ketchup. But it did not taste good.
John Belcaster (1) 28:10
I'd say Why choose? Why not both?
John Belcaster (2) 28:19
Ah, I'm not talking about this one. That scares me. I remember I remembered being interviewed for the site visit for the General Counsel role at mischief. And the founder Gabe Whaley takes me around the corner. And he says, Have you seen the Museum of forgeries yet? And I said, why? And I look around the corner and there are a whole bunch of robots. And these robots are creating a whole bunch of Andy Warhol. As far as I want to go with this. I don't know if either one. What on earth?
John Belcaster (3) 28:55
Yeah, I mean, Andy Warhol is, you know, mostly known for some painterly works. But he did a lot of scribbling to I would say, and we took some of these more scribbly pieces and thought, you know, a robot could do that. And, and a robot did do that. We took we took that piece, we made 999, I can tell that we mixed in the original Warhol. And at the end of the day, they're all muddy together. But I don't know which was we're an audit and it went great.
John Belcaster (1) 29:34
I'd say with some skill, careful eye, you can tell which might be your no
John Belcaster (3) 29:40
one can tell. That's that's the beauty of it is that nobody can tell the difference between the Warhols.
John Belcaster (2) 29:47
My mom bought one of these, and she's a big fan of a PBS show Antiques Roadshow. And so I convinced her to submit an application of the anti poor show roadshow. And she's hoping to get on that show. So that the appraisers there. We'll let her know whether in fact, she has the original Warhol fairies, which is appraised now at about $45,000.
John Belcaster (1) 30:08
And you know, there's an interesting phenomenon with mischief, where people like to opportunistically buy artworks and flip them. And I had heard that maybe someone in our midst may have possibly done that.
Jeanne Fromer 30:24
Okay, well, now that I've been outed, I bought one to keep. And I saw that they were selling for how much did they originally sell for? 200 200? They were selling for $1,000. So yeah, I flipped it.
John Belcaster (1) 30:41
So you realized a 5x?
Jeanne Fromer 30:45
mischief is a great investment? I have to say.
John Belcaster (3) 30:49
No, we bought one originally for I think about $30,000. So it's possible you lost out on some some money there.
Jeanne Fromer 30:56
I've calculated both for the hearse. And for the Warhol you made money. I counted the dots I counted theory, the value.
John Belcaster (1) 31:04
What about the opportunity cost of your $29,000? Yeah,
Jeanne Fromer 31:09
fair enough. Is it how do you perceive it to do 1000 people own 0.1% of an Andy Warhol or is there one person that just has an Andy Warhol?
John Belcaster (1) 31:21
You think everyone owns a museum of forgeries and should be very lucky to
Megan Bannigan 31:25
that there is a aptly named case pending right now on Supreme Court Warhol case, which is looking at fair use and copyright infringement, and what's transformative, and does there have to be noticeable differences to make it transformative. And I'm curious as to John's view as to whether this is transformative. Is this purely fake? Or is this transformative?
John Belcaster (2) 31:51
You go ahead just your general counsel oh
John Belcaster (1) 31:54
you know it's funny actually, you know, it's it's interesting because we got three people on stage that all say John Bell caster, but if you go to LinkedIn, there's really only one that's John Bell. Gasser so just thought I would, I would point that out. It's a little funky, the impersonated This is clearly a mischief artwork. I don't know what else to say.
Megan Bannigan 32:21
How is it transmitted?
John Belcaster (3) 32:22
Your artwork is the act itself and the event of selling this this piece. So in that way, it's it's fully transformative. So I'd like to compare this to I'm sure there's some video game players in the audience. Every once in a while a video game will come out, you know, online game, people were playing with each other. And there's like a glitch where if you drop two items, or drop one item at the same time you get to that's what this project is to me. We dropped one Warhol and we got 999 More
John Belcaster (2) 32:56
like dropping Mercury mercury in chemistry class.
John Belcaster (3) 32:58
There you go. I do remember that. Don't touch it.
Megan Bannigan 33:02
What's the message?
John Belcaster (1) 33:06
Message because
John Belcaster (3) 33:08
if your artwork looks like scribbles, it's very easy to do it yourself. And we hope everyone does
John Belcaster (1) 33:20
what to say about booster packs? You have any
John Belcaster (2) 33:22
revenues Jeanne wanted? I wanted us to talk about booster pack
Jeanne Fromer 33:25
I wanted to tell us so I think you're seeing from the range of drops that that Miss ship does that clearly there's there's a fascination about on many themes, but clearly about what makes something real. What makes something fake? Or is there a way to tell the difference between the two is blurring the two part of the message here and so I thought this was a an interesting other contexts to introduce. So booster packs. Can you explain what they
John Belcaster (2) 33:57
are? It's a path of things you might find in your wall. Alright, a library card and blockbuster membership card. We've collaborated, we collaborated with Mariah Carey and you know, you get your boosted pack and maybe got the Mariah Carey's driver's license as part of your booster. Maybe Maybe you got Mariah carries a high school ID and your booster pack. It's a treasure trove of sorts. It's a needle in a haystack
John Belcaster (1) 34:27
by men. Close your eyes.
John Belcaster (3) 34:30
Who are you really?
John Belcaster (1) 34:33
Who are you? Unconsciously impersonating? Who are you trying to be? Are you really yourself? Maybe not. And you can buy this from us for $10
John Belcaster (3) 34:48
Well, not anymore. This actually was a good flip. I think these are going for over 100 at this point.
Jeanne Fromer 34:53
someone in my family may have flipped them and made that very, very good.
John Belcaster (3) 34:57
I think the great thing about booster packs is You know, an ID badge can do wonders for for anyone really, I mean, you walk in with the right badge and the right look on your face, and just sail through whatever opposing defenses there might be. And that's really the power of booster packs that we wanted to give everybody crack open a pack, and who knows what kind of powers you might unlock.
John Belcaster (1) 35:19
That's right. In the future, you Andy Warhol said, future everyone will be famous for 15 minutes. They think in the present. Anyone can be anyone for as long as they'd like.
John Belcaster (2) 35:40
luxury goods, we heard about mashups. Yesterday, this is a mashup that the art collective undertook with the luxury brand, Tiffany and created the ultimate participation trophy.
John Belcaster (1) 35:58
Yeah, so you can see here, there's, if you squint, there's this is this is a good flip, right, you can go to the good intrinsic value with a silver and there's a horse. There, the horse is kicking a soccer ball. The guy on it, I believe, is a very remember of it has a baseball bat, and also a tennis racquet. And so he's, he's sort of playing all of the sports at the same time. And, and I do think it's common that that artists unwittingly put themselves into their art. And I do think there's a way in which mischief is, in some ways, sort of trying to play all of the sports at the same time, which ends up looking a little ridiculous in a sense, and yet rather refined to because if you can pull it off, it's some skill, and some composure, you can indeed ride a horse kicking a soccer ball while holding a baseball bat and a tennis racket all at the same time. You can do it all.
Jeanne Fromer 36:58
So this example and the Fenty collaboration, they're very interesting, because you know, in some of the drops, you've done, you're riffing on building on commenting on something put out by a third party. And here you're collaborating with Tiffany, you're collaborating with Fenty? How does the fact that you're collaborating with brands matter how much and how important it is? How important is it to be able to tell that you're collaborating with a brand versus riffing on them alone without collaborating with them?
John Belcaster (1) 37:41
I think when there's an opportunity to use a brand as a Trojan horse in a way they may not fully appreciate when we're entering into a contract with them. That's always a good opportunity. And and I'd say that that's generally our philosophy.
John Belcaster (2) 37:57
You're the General Counsel of mischief.
John Belcaster (1) 37:59
I do believe so.
John Belcaster (2) 38:03
I mean, another way to come to that question is again, from the perspective of the cultural ready made, and the challenge for the collective is if you are dabbling in that Duchampian, Ai Weiwei lineage, you're always right on the edge, right. And then again, we don't want to be tilting, leaning deeply into our by proclamation, but we want to be sure that we are leaning into cultural icons, and expressing creating against those cultural icons as a form of commentary and artistic expression.
Megan Bannigan 38:41
I mean, but also when you're doing collaborations, it's collaboration very clearly.
John Belcaster (1) 38:47
That's right, that does differentiate, say, a wavy baby from from a mystery of collaboration, per se. Oh,
Megan Bannigan 38:54
well, maybe baby itself was a mischief. Tiger collaboration, and it said, very largely on class, and marketing. mischief, X Tiger. That's right.
John Belcaster (3) 39:08
What's the best collaborations come from when we are able to do something legally, artistically creative with a brand? That can't and Tiffany can't. So they had to come to us. And then we came up with this. Sounds about right.
John Belcaster (2) 39:30
I guess this might be our last it is our last example of an art form. This is a participatory artistic undertaking. That takes aim at a convention of the law, the cease and desist. You want to give a rip on what was going on here. We will
John Belcaster (1) 39:53
do one more minute. Absolutely. John.
John Belcaster (3) 39:58
So this was the c&d Grand Prix. And the idea for this one was that companies love to send cease and desist. And I think they really can't survive unless they do so. And usually that is a detriment to your project, right, you do something really fantastic. And then you have some boring company send you a little nasty gram, you know, sometimes on Twitter, which is strange, but we wanted to see if we can harness that power for, you know, kind of the what's the Kung Fu, but it's like you move with it, too. And what that is, anyways, I don't know, you take the punch, and you redirect it, right? We all know that. Okay, so that was the idea here with the CD Grand Prix. We knew what season six was going to happen if we did certain things. So why don't we integrate that into the core idea of the project to play a little game with the legal system? So we released? I don't know how many are here, seven, seven, or eight. Oh, okay. There's eight shirts in total, with, you know, the big brands on them that we knew were gonna come after us release those, and then the first company that sends a cease and desist, and the people that bought that particular shirt, yet at extra, in this case, a hat and extra prize on top of the wonderful shirt. And, interestingly, we didn't really get that much action. If I remember correctly, John, I
John Belcaster (2) 41:18
mean, zippo John could speak to this because he was at the helm of the leader of the legal function on this, but if you go to the next slide, the only one of the eight brands that raised their hand with subway, and subway borrowed a page from our own participatory art experience.
John Belcaster (1) 41:38
Subway is desperate. Subway some would you say are there's a there's a term some kids got to say simple. sooner, the simple, so big, simple energy.
John Belcaster (2) 41:48
They got the job and they tried to one up on the job. Or they got art and try their hand.
John Belcaster (3) 41:54
So boy, we're like, simple boy. That's right. Let
Megan Bannigan 41:59
me ask the audience a question. You go, you see a job and the job says cease and desist Grand Prix? Who's gonna be the first to sue us? Is anybody confused and thinks that one of these brands is putting out these shirts?
John Belcaster (1) 42:14
Exactly. Looks like there's people are remote. There were no one raised their hand and daughters. Right. So I guess we wanted to take a look into, you know, realism and, and fakes. And just do a quick poll to see which John is the genuine general council administrator. Maybe
John Belcaster (2) 42:40
before we get to that, you know, I know that we're at a time and so God might want to take questions from the audience. But if I could deploy the panel's prerogative here, I would like to pose a question to a couple of our audience members. Some of us were to speakers dinner last night. I'm thinking of Professor Farley over here and Stephen, a panelist from this morning and Julie's herbal ahead of the fashion law. And we had a charming discussion. I spent an hour talking to Professor Farley. And after that hour, she turned to Meghan who was to my right, and she said to Megan, he can't possibly be the general counsel of mischief. He's too old. They clearly had a younger General Counsel. I'm not making this up. Am I then no. Well,
John Belcaster (1) 43:34
I was completely sober.
Jeanne Fromer 43:39
On number one, John, number two, John number three,
John Belcaster (2) 43:41
back to you. Alright. So then later in the evening, I introduced myself to Stephen and I should have reached out by Stephen said, and I said, my name is John Bell Castro. I'm the General Counsel of Michigan and without missing a beat, he says, Oh, I'm Sam Walton, the founder of Walmart. So my question to the two of you and Julie as well is forgive me but why the distrust or charitably why the skepticism
and then this guy pulls out a LinkedIn with his photograph, everybody starts googling John Bel Castor. And he your LinkedIn shows you as the as the General Counsel of mischief. Somebody asked me well, why why am I not on LinkedIn? I don't buy into all the social media platform.
John Belcaster (1) 44:40
Interesting ranting story your eighth
John Belcaster (2) 44:44
but then the Google me is find a photograph of me when I
John Belcaster (1) 44:50
die says he's friends with Barack Obama. Sounds really sane and I got neurochemical things someone would say have
John Belcaster (2) 44:59
a mild I'm not correctly I go into a mild panic attack.
John Belcaster (1) 45:03
I wonder why? Because wonder why.
Megan Bannigan 45:08
If you're Google John spellcaster, GC admission, you get a LinkedIn page
John Belcaster (1) 45:14
with John's picture, because I'm Jen
Megan Bannigan 45:17
Obama with John. And you get a picture of somebody who's not sitting on this panel. And it says that he's GC mischief. So is the GC even here?
John Belcaster (1) 45:29
So very, very interesting question, Megan. And I'd love to know the answer to that.
John Belcaster (3) 45:35
However,
John Belcaster (1) 45:36
I am John Bel Castor, the GC administrator.
Jeanne Fromer 45:41
So while people are still mulling this over and figuring out who is John Bel Castor, the GC of mischief, we're happy to take some questions from the audience.
John Belcaster (1) 45:53
Yes, over here, on the right.
Unknown Speaker 45:56
Thank you. So I have basically a two part question that is perhaps best exemplified with a small example. Say that mischief creates creates a shoe with, with like a printing off hands loan and artwork of a bunny, and the word Playboy on the back. So my question is, first of all, would you consider collaborating, or even using a cultural icon that is perhaps less well known than Andy Warhol? Because as you if you go on first dates, Hounslow sells for up to $50,000, which is, of course not comfortable with Warhol, for example, or Damien Hirst. My second question is, would you consider undertaking any project that might expose you to suit for example, if artists hand slonem thought it was degrading to be associated with Playboy, for instance, because of his bony artworks? Would you consider doing something that could possibly expose you to sort of a suit?
John Belcaster (1) 46:57
I mean, in terms of the imagery selection, we would use just sort of a test. It's like, does it slap?
John Belcaster (3) 47:05
Which we try to do?
John Belcaster (1) 47:10
Yeah, I'm not quite familiar. I mean, does it slap Dart that you're talking about? Might be a no. Unfortunately,
John Belcaster (2) 47:21
if I could put your first question, but more crassly, you're asking whether the collective would collaborate with downstream, like, be artists and see artists like vanilla ice, that kind of thing.
Unknown Speaker 47:39
I guess I wouldn't be so bold as to call fans, learner, maybe artist? I would say perhaps my my question is, would you consider using someone who is more niche, rather than as well known as Damien Hirst, who also has the means to defend himself legally, or underwater whose estate is also has the resources to protect itself against you? That is my point.
John Belcaster (1) 48:08
I think we like extremes. Is it really good? Is it really bad? Or are you sort of indifferent about it? And we try to stay away from indifference?
John Belcaster (2) 48:20
In terms of your second question is undertaking art forms to invite litigation. That's the furthest thing from our mind. But sadly, that has become front of mind. For all the reasons we heard about this morning. The notion that this the pendulum has now swung, so typing towards the weaponization of intellectual property, and so far afield from first principles and freedom of expression. If we, you know, this is all by way of Larry Lessig, up at Harvard, if we desire or desirous of or want to maintain a free culture, we have to be mindful of that pendulum, not swinging towards big IP, any more than it already has, and be thoughtful about how we could show that the other way.
John Belcaster (3) 49:14
I would say I'm not familiar with this Hans fellow, but Damien Hirst, when I see him I want to do nothing but cut up his art, you know, I mean, it's just kind of general vibe. When I see a photo of him hanging out, you know, whatever he's doing. That's that's, that's what I want to do. So Hans, might I might I don't know Hans, haven't seen Hans, but might get a totally different idea. When I see Hans, it's all about, you know, the vibe check.
Jeanne Fromer 49:41
Right? We probably have time for one more question.
John Belcaster (1) 49:45
Over here on the left gentleman, handsome gentleman on the left.
Stephen Lee 49:48
Thank you, Sam. Well, Walmart question for you. I think you might have mentioned it wasn't really quickly on that sawblade Oh, I've got a patent the design patent on it. I'm just wondering if you do have a IP. When are you going to enforce Have you had to enforce? How do you take that position? And
John Belcaster (1) 50:05
maybe we will obliterate ruthlessly? Anyone who tries to infringe on our intellectual property?
John Belcaster (2) 50:12
The answer I thought I'd get appreciate it. So you're you're a hypocrite.
John Belcaster (1) 50:19
On the General Council of Ministers have a bit of a mandate here. Seems you might be a little confused about the job function.
John Belcaster (3) 50:30
Yeah, I think the general feeling is if it's infringement, that's good, then we're good with it. If it's an infringement, that's bad. Then we will bring the full weight of the legal system after you
John Belcaster (1) 50:43
might check by check.
Megan Bannigan 50:47
Say a disclaimer. You know, you can't believe anything that was said on this panel. Nothing can be used against us because none of it is even real.
John Belcaster (1) 50:59
I take great issue with that.
Megan Bannigan 51:02
Well, chat later.
Jeanne Fromer 51:04
Well, maybe one final question then Well, the real John spellcaster please stand up
John Belcaster (2) 51:13
thanks. Sorry. If we've learned anything that that is we ought to know that there is wisdom in crowds and if we look at the crowd the same
John Belcaster (1) 51:29
Thanks, everybody. Thanks see.
Announcer 51:40
The Engelberg Center Live! podcast is a production of the Engelberg Center on Innovation Law and Policy at NYU Law is released under a Creative Commons Attribution 4.0 International license. Our theme music is by Jessica Batke and is licensed under a Creative Commons Attribution 4.0 International license