Showing posts sorted by date for query Ersatz. Sort by relevance Show all posts
Showing posts sorted by date for query Ersatz. Sort by relevance Show all posts

Monday, December 11, 2023

Frivol

Frivol (pronounced friv-uhl)

(1) An unserious person.

(2) An idle diversion or pastime; a frivolity.

(3) To behave frivolously; to trifle; to squander time; to waste on frivolous pursuits (historically followed by away).

(4) To spend money frivolously (historically followed by away).

1865–1870: A back formation from frivolous, from the French frivole, from the Latin frīvolus (trifling, worthless).  The word exists in Romanian where it’s used in the same sense as in English but in German there’s been a meaning shift and it’s now an adjective meaning saucy; sleazy; ribald (sexual in a frivolous way), the comparative being frivoler and the superlative am frivolsten (in the matter of frivolous sex, the Germans have grades).  The adjective frivolous emerged in the mid-fifteenth century, from the Latin frivolus (silly, empty, trifling, worthless), a diminutive of frivos (broken, crumbled), from friare (break, rub away, crumble).  In courts of law, frivolous was in use by the mid- 1730s to describe arguments (or entire cases) as “so clearly insufficient as to need no argument to show its weakness”.  The related forms were the adverb frivolously and the nouns frivolousness & frivolity.  Dating from the 1790s, frivolity was from the French frivolité, from the Old French frivole (frivolous), from the Latin frivolus.  Frivol is a noun & verb, frivoler (also frivoller) is a noun, frivoled (also frivolled) & frivoling (also frivolled) are verbs; the noun plural is frivols.  Frivol is all contexts is now rare (some sources suggest it is extinct) which is interesting because in English there’s usually a tendency for a short form to prevail over the long; for whatever reason frivolous & frivolity flourished and frivol floundered.

Of the frivolous and the vexatious

In legal proceedings, “frivolous” & “vexatious” are terms used to describe certain classes of argument or even an entire case.  An action or claim is labeled frivolous when it self-evidently lacks any merit or basis in law and has no reasonable prospect of success.  An action or a litigant is labeled as vexatious when they engage in persistent, repetitive, or burdensome litigation, often with the primary goal of annoying, harassing, or frustrating the opposing party.  Like the frivolous, a vexatious action is often one with little prospect of success but is characterized by a pattern of behavior rather than the lack of merit in a specific claim and the phrase “abuse of process” is often used in conjunction with “vexatious”.  If a litigant is found repeatedly to commence such actions, courts sometimes declare them a “vexatious litigant” and intervene to prevent them filing new suits without the permission of the court.  The terms “serial litigant” is also sometime used in this context but the courts will not move against a party simply on the basis of the frequency with which actions are brought; provided a actions are on sound legal grounds and have a reasonable prospect of success, as a general principle, there is no limit on their number.

Courts do act more harshly against the vexatious than the frivolous because the former (often involving the legal system in repetitive and burdensome litigation) are being used as a weapon, sometimes as devices to harass or annoy and sometimes as a way of attempting to cause the other party to have to spend so much in legal fees that they will discontinue the case.  Each matter is dealt with on its merits but courts can impose sanctions on both litigants and counsel; it’s not unusual for litigants declared vexatious to be self-represented because no lawyer will agree to run the action.  Although there can be nuances, a case is frivolous if it has no reasonable chance of succeeding, and is vexatious if the court finds it would be unreasonable to ask the other party to defend the matter.  Lindsay Lohan went through a “serial litigant” phase and the makers of GTA were not the only plaintiffs to suggest she was running frivolous cases, the accusation usually that the legal proceedings were being commenced only to seek publicity:

Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Agreeing with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Lindsay Lohan’s lawyers did not seek leave to appeal.

Lindsay Lohan v E-Trade Securities LLC, New York State Supreme Court, Nassau County, No. 004579/2010

In 2010, one of Lindsay Lohan’s more unusual forays into litigation was settled prior to reaching trial.  In the Supreme Court of New York, Ms Lohan had filed suit for US$100 million against online investment site E-Trade, in connection with their Super Bowl ad featuring a "milkaholic" baby girl named Lindsay.  The claim was based on the allegation the commercial was mocking her on the basis of some drug and alcohol related matters which had involved the police, saying the work additionally improperly invoked her “likeness, name, characterization, and personality” without permission, violating her right of privacy.  In the statement of claim, the actress sought US$50 million in compensatory damages and US$50 million in exemplary damages as well as demanding E-Trade cease and desist running the commercial and turn over all copies to her.  One interesting technical legal point raised was that Ms Lohan enjoyed the same “single-name” recognition as celebrities such as talk-show host Oprah (Winfrey) or the singer Madonna (Ciccone).

The E-Trade commercial had been broadcast during the Super Bowl on 7 February 2010 as part of a series built around the theme “babies who play the markets”, and attracted an audience of around 106 ½ million viewers in the US market, then a record number.  E-Trade filed a statement of defense in which it said the claims were “without merit”, and that Lindsay Lohan wasn’t the world's only Lindsay, noting Lindsay was in 2008 the 380th most popular name for new-born American girls, down somewhat from 241th in 2004 when Mean Girls was released.  Grey Group, the advertising agency which produced the commercial later added the “milkaholic Lindsay” was named after a member of its account team although this apparently wasn’t added to the statement of defense.  The plaintiffs did raise the matter of dismissal as frivolous but the judge said the matters raised were "potentially legally substantive" and allowed the case to proceed.  After some months, a settlement was reached between the parties, both sides bound by a non-disclosure agreement (NDA).

Pitbull (Armando Christian Pérez, b 1981).

Another of Lindsay Lohan's forays into litigation did however give a judge the opportunity to discuss the parameters a court works with when deciding whether an argument can be ruled "frivolous".  In 2011 she sued hip hop artist Pitbull over the lyrics in his song Give Me Everything, which included the line: So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.  Ms Lohan cited the lyric as a violation of her publicity and publicity rights which caused her emotional distress, claiming the lyrics “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to her physical and mental character.”  The judge dismissed on technical grounds the claim made under New York Civil Rights law, adding that the First Amendment anyway affords full protection.  What was more interesting was the discussion of the argument the song was commercial rather than expressive in nature, the judge ruling that even if the work was created for the purpose of “making a profit”, that does not mean her name was “used for advertising or purposes of trade within the meaning of the New York law“ and that, on the facts of this case, even if that were proved, the “isolated nature of the use of her name” (just one line in the song) would “prove fatal” to the claims.  Putbull’s counsel indicated they wished to have the court sanction Ms Lohan for filing a frivolous lawsuit (an abuse of process) but the judge, noting the paucity of case law in this field, said the lack of precedent meant there was no clear indication the case would be doomed and the claim was therefore not so frivolous as to warrant the imposition of a sanction.  Lindsay Lohan thus remained free to litigate, which she did.

Saturday, October 14, 2023

Coriaceous

Coriaceous (pronounced kawr-ee-ey-shuhs, kohr-ee-ey-shuhs or kor-ee-ey-shuhs)

(1) Of or resembling leather.

(2) In botany, a surface (usually a leaf) distinguished having the visual characteristics of leather.

1665-1675: from Late Latin coriāceus (resembling leather in texture, toughness etc), the construct being corium (skin, hide, leather (and also used casually to refer to belts, whips and other leather items, and upper layers (ie analogous with a skin or hide) in general such as crusts, coatings, peels or shells)), from the Proto-Italic korjom, from the primitive Indo-European sker & ker- + -aceous.  The suffix –aceous was from the New Latin, from the Classical Latin -aceus (of a certain kind) and related to the Latin adjectival suffixes –ac & -ax.  It was used (1) to create words meaning “of, relating to, resembling or containing the thing suffixed” and (2) in scientific classification, to indicate membership of a taxonomic family or other group.  The comparative is more coriaceous and the superlative most coriaceous.  Coriaceous & subcoriaceous are adjectives and coriaceousness is a noun.

Botanists classify coriaceous leaves by degree.  The common greenbrier (Smilax rotundifolia) (left) is listed as subcoriaceous (ie somewhat or almost coriaceous) while the Shining Fetterbush (Lyonia lucida) is distinguished by glossy coriaceous leaves with a prominent vein along margins (right).

In late 1967, as a prelude to the next year’s introduction of the XJ6, Jaguar rationalized its saloon car line-up, pruning the long-running Mark II range from three to two, dropping the 3.8 litre model and re-designating the smaller-engined pair (the 2.4 becoming the 240, the 3.4 the 340), thus bringing the nomenclature into line with the recently released 420.  The standardization exercise extended to the big Mark X which became the 420G but curiously the S-Type’s name wasn’t changed and it became the only Jaguar in which the 3.8 litre engine remained available as a regular production option, the E-Type (XKE) having earlier adopted the 4.2.  So the 240, 340, S-Type (3.4 & 3.8) and 420 (all based on the 1959 Mark 2 (itself a update of the 1955 2.4)) all remained in production, along with the Daimler 250 (the re-named 2.5 fitted with Daimler’s 2.5 litre V8) and to add a further quirk, a dozen 340s were built to special order with the 3.8 liter engine.  Production of all ceased in 1968 with the coming of the XJ6 except the big 420G (which lasted until 1970 although sales had for some time slowed to a trickle), the 240 (available until 1969 because Jaguar wasn’t until then able to offer the 2.8 liter option in the XJ6) and the Daimler 250 (which also ran until 1969 until the Daimler Sovereign (an XJ6 with a Daimler badge) entered the showrooms).

1967 Jaguar Mark 2 3.8 with leather trim (left) and a "de-contented" 1968 Jaguar 240 with the "slimline" bumpers, Ambla trim and optional  rimbellishers (right).

Given the new revised naming convention wasn’t carried over the XJ6 (rendering the 420G an alpha-numeric orphan for the last year of its existence), there’s since been speculation about whether the Jaguar management had a change of mind about how the XJ6 was to be labeled or the changes were just an attempt to stimulate interest in the rather dated Mark 2 and its derivatives.  That certainly worked though perhaps not quite as Jaguar intended because Mark 2 sales spiked in 1968 and the oldest models (240 & 340) handsomely outsold both the newer 420 and the by then moribund S-Type.  Probably the change in name had little to do with this and more significant was the price cutting which made the 240 & 340 suddenly seem like bargains, the 240 especially.  Dated they might have looked in the year the NSU Ro80 debuted, but they still had their charm and the new price drew in buyers whereas the 420 suffered because it was known the XJ6 would soon be available and expectations were high.

The renewed interest in the 240 was at least partly because Jaguar had finally devoted some attention to the breathing of its smallest engine, straight-port heads and revised SU carburetors increasing the power to the point where a genuine 100 mph (160 km/h) could be attained, something not possible since the lighter 2.4 (retrospectively known as the Mark 1) ended production in 1959.  The 100 mph thing was something the factory was quite sensitive about because in the 1950s (when it was still quite an achievement) it had been a selling point and for most of the Mark 2’s life, Jaguar were reluctant to make 2.4s available for testing.  The 240’s new performance solved that problem and it was the biggest seller of the revised range (4446 240s vs 2800 340s) although those who read the small print might have been disappointed to note the fuel consumption; both models weighed about the same but the small engine had to work much harder, the 340 barely more thirsty.

1962 Jaguar Mark 2 3.8 with leather trim (left) and 1968 Jaguar 240 with Ambla trim.  It was only when the optional leather trim was specified that the fold-down "picnic tables" were fitted in the front seat-backs. 

The real thing: Lindsay Lohan in leather (albeit with faux fur sleeves).

Still, with the 240 selling in 1968 for only £20 more than the what a 2.4 had cost in 1955, it was soon tagged “the best Jaguar bargain of all time” but that had been achieved with some cost-cutting, some of the trademark interior wood trim deleted, the fog and spot lamps replaced by a pair of chromed grilles, the hubcap design simplified and “slimline” bumpers fitted in place of the substantial units in place since 1959, this not only saving weight but a remarkable amount of the cost of production.  The revised cars were not as generously equipped as before (although some of the “de-contenting” had been introduced late in Mark 2 production) but a long option list remained and on it were some items once fitted as standard, the list including a choice of five radio installations with or without rear parcel shelf-mounted speaker, a laminated windscreen, chromium-plated wheel rimbellishers for steel wheels, Ace Turbo wheel trims for steel wheels, a tow bar, a locking petrol filler cap, front seat belts, the choice of radial, town and country, or whitewall tyres, automatic transmission, overdrive (for the manual transmission), wire wheels, fast ratio steering box, a fire extinguisher, Powr-Lok differential, rear window demister, heavy-duty anti-roll bar, close-ratio gearbox, tinted glass, a driver’s wing mirror, childproof rear door locks, an integrated ignition & starter switch (steering column), reclining front seats, power-assisted steering & leather upholstery.

It was the moving of the leather trim to the option list which is said to have made the greatest contribution to the price cuts.  The replacement fabric was Ambla, one of a class of coriaceous materials which have come variously to be referred to as faux leather, pleather, vegan leather, Naugahyde, synthetic leather, artificial leather, fake leather & ersatz leather.  First manufactured in the US, most production now is done in China as well as upholstery, the fabric is use for just about anything which has ever been made in leather including clothing, footwear, gloves, hats, belts, watch bands, cases, handbags, sports items, firearm holsters, luggage and a myriad besides.  It does appear that as early as the fifteenth century, the Chinese were experimenting with ways synthetic leather could be manufactured but it doesn’t appear anything was ever produced at scale and it was only when petroleum-based plastics became available in the US in the late nineteenth century that it became viable to mass produce a viable alternative to leather.  Historically, most of the products were petroleum-based but vegetable-based alternatives are now attracting much interest as attention has focused on the environmental impact of the traditional petro-chemical based approach.

1967 Mercedes-Benz 250 SE with MB-Tex trim (left) and 1971 Mercedes-Benz 300 SEL 6.3 with leather trim.

One of the best known coriaceous materials in the 1960s and 1970s was MB-Tex, a vinyl used by Mercedes-Benz which by far was the synthetic which most closely resembled genuine leather.  That was something made easier by the Germans using a process which resulted in slightly thicker tanned hide than those from Italy, Spain or England and this meant that replicating the appearance was more easily attained.  What most distinguished MB-Tex however was the durability and longevity.  Unlike leather which demanded some care and attention to avoid wear and cracking, it wasn’t uncommon for 20 or 30 year old MB-Tex to look essentially as it did when new and many who sat in them for years may have assumed it really was leather.  It certainly took an expert eye to tell the difference although in a showroom, moving from one to another, although the visual perception might be much the same, the olfactory senses would quickly know which was which because nothing compares with the fragrance of a leather-trimmed interior.  For some, that seduction was enough to persuade although those who understood the attraction of the close to indestructible MB-Tex, there were aerosol cans of “leather smell”, each application said to last several weeks.

For the incomparable aroma of leather.

The factory continued to develop MB-Tex, another of its attractions being that unlike leather, it could be produced in just about any color although, now colors (except black, white and shades of grey) have more or less disappeared from interior schemes, that functionality is not the advantage it once was.  As a fabric though, it reached the point where Mercedes-Benz dropped the other choices and eventually offered only leather or a variety of flavors of MB-Tex.  That disappointed some who remembered the velour and corduroy fittings especially popular in the colder parts of Europe but the factory insisted MB-Tex was superior in every way.  Also lamented were the exquisite (though rarely ordered) mohair interiors available for the 600 Grosser (W100, 1963-1981).  Apparently, the factory would trim a 600 in MB-Tex upon request but nobody ever was that post modern and most buyers preferred the leather, however coriaceous might have been the alternative.

Wednesday, August 2, 2023

Versus

Versus (pronounced vur-suhs or vur-suhz)

(1) Against, used especially to indicate an action brought by one party against another in a court of law, or to denote competing teams or players in a sporting contest.

(2) As compared to or as one of two (or more) choices; as alternative to; in contrast with.

1400–1450: From the Late Middle English, from the Latin versus (facing; literally “towards” ie “turned so as to face (something), opposite, over against) and originally the past participle of vertere (to turn, change, overthrow, destroy), from the primitive Indo-European wert- (to turn, wind) from the root *wer (to turn, bend).  Versus is a preposition, the accepted abbreviations are “v” & “vs”.  The Latin vertere being a word of conflict, it’s been predictably productive in English.  In psychology, ambivert & ambiversion were coined in 1927 to describe a "person exhibiting features of an extrovert and an introvert.  Advert was an adaptation of the mid-fifteenth century averten (to turn (something) aside) from the twelfth century Old French avertir (later advertir) (to turn, direct; turn aside; make aware, inform) from the Latin advertere (turn toward, turn to).  English restored the -d- in the sixteenth century.  Versus is a preposition.

Averse was a mid-fifteenth century form meaning "turned away in mind or feeling, disliking, unwilling", from the Old French avers (hostile, antagonistic) and directly from the Latin aversus (turned away, turned back), past participle of avertere (to direct one's attention to; give heed, literally "to turn toward”).  Averse in English is used almost exclusively in the mental sense, while averted is applied to physical acts.  Advertise was from the early fifteenth century advertisen (to take notice of (a sense now obsolete)), from the Old French advertiss-, present-participle stem of the twelfth century advertir (the earlier form was avertir) (make aware, call attention, remark; turn, turn to), again from the Latin advertere.  The mid-fifteenth century transitive sense of "give notice to others, inform, warn; make clear or manifest" was by influence of advertisement; the specific commercial meaning "call attention to goods for sale, rewards, etc" not in use until the late eighteenth century.  The idea of the adversary (unfriendly opponent, enemy) emerged originally in religious writing as a descriptor of Satan as the enemy of man.  It was from the mid-fourteenth century aduersere (hostile opponent, enemy), from the thirteenth century Anglo-French adverser and the twelfth century Old French adversarie (which in Modern French is adversaire), from the Latin adversarius (an opponent, rival, enemy) the noun use of the adjective meaning "opposite, hostile, contrary.  The Classical Latin was glossed in Old English by wiðerbroca.

The verso (reverse, back, or other side of some object," especially a printed page or book) dates from 1839 and was from the Latin verso (folio), ablative singular neuter of versus, past participle of vertere (to turn).  Retroversion was first noted in the 1580s in the sense of a “tilting or turning backward" noun of action or state from the Latin retroversus (turned or bent backwards).  The late fourteenth century controversy (disputation, debate, prolonged agitation of contrary opinions) was from the from Old French controversie (quarrel, disagreement" from the Latin controversia (a turning against; contention, quarrel, dispute), from controversus (turned in an opposite direction, disputed, turned against), the construct being contra "against" + versus (turned toward or against), past participle of vertere.  Vice versa (the order being changed) dates from circa 1600, the construct being vice, ablative of vicis (a change, alternation, alternate order) + versa, feminine ablative singular of versus, past participle of vertere.  The Century Dictionary notes the phrase has the “complete force of a proposition”, meaning “a transposition of antecedents, the consequents also transposed".

Sinister, the idea being the left being opposite the right is also involved.  When, in 1856, botanists needed a word to describe the direction of spiral structures in nature, they coined the adjective sinistrorse, from the Latin sinistrorsus (toward the left side), the construct being sinister (left) + versus (turned), past participle of vertere.  It was paired with dextrorse but, in the pre-internet age, communication between scientists in different places was slow or limited and confusion arose about what was the proper point of view to reckon leftward or rightward spiraling, both interpretations used and documented as sinistrorse.  It limited the utility of the word.  Universe dates from the 1580s in the sense of "the whole world, cosmos, the totality of existing things", from the twelfth century Old French univers, from the Latin universum "all things, everybody, all people, the whole world," noun use of the neuter of the adjective universus (all together, all in one, whole, entire, relating to all, literally "turned into one), from unus (one (from the primitive Indo-European root oi-& no- (one, unique)) + versus, past participle of vertere.

The word verse came from late Old English, replacing the earlier Old English fers which was an early West Germanic borrowing directly from Latin and meant "line or section of a psalm or canticle" which by the fourteenth century had extended to "line of poetry", from the Anglo-French and Old French vers (line of verse; rhyme, song), from the Latin versus (a line, row, line of verse, line of writing), again from the primitive Indo-European wer-.  The metaphor is of plowing, of "turning" from one line to another, in the sense of vertere (to turn) as the plowman does at the end of each furrow.  The New Testament in English translation was first divided fully into verses in the 1550s Geneva version.  The metrical composition dates from circa 1300 but, perhaps surprisingly, as the non-repeating part of a modern song (ie the text which exists between repetitions of the chorus), verse wasn’t used until 1918.  That was noted in the book Negro Folk-Songs (1918) by US ethno-musicologist Natalie Curtis Burlin (1875-1921) which documented the traditions and forms of what used to be called “negro spirituals”.  Seemingly for the first time, the structure was defined as consisting of "chorus and verses, the chorus being a melodic refrain sung by all which opens the song; then follows a verse sung as a solo, in free recitative; the chorus then repeated; then another verse, the chorus again and so on until the chorus, sung for the last time, ends the song.”

In law reporting, versus, and, & against

Carbolic Smoke Ball Company’s offer to the whole world.

In the English speaking world, in the reporting of legal actions which reach the stage of being filed by a court register (or equivalent), the convention is that the first party named is the plaintiff (appellant) and the second the defendant (respondent).  So, in the famous case in English contract law of Carlill v Carbolic Smoke Ball Company (1892, EWCA Civ 1) before the Court of Appeal, Mrs Carlill was the appellant and the Carbolic Smoke Ball Company the respondent.  The carbolic smoke ball case remains interesting because it established in English law the principle that advertisements offering something can constitute a binding contract even if the person claiming to have entered the contact hasn’t advised the author of the offer of their intent to perform the acts required in the terms of the offer.

Doubling down: The Carbolic Smoke Ball Company wasn't discouraged by the loss in the Court of Appeal, subsequently increasing both the reward to £200 and the small print to discourage claims.

During the deadly influenza pandemic in the northern winter of 1889-1890, the Carbolic Smoke Ball Company it would pay £100 (equivalent to some £12,000 in 2021) to anyone who became ill with influenza after using their smoke ball in accordance with the instructions enclosed with the product.  Mrs Carlill was concerned enough by the flu to buy a ball which, following the instructions, she used thrice daily for some weeks but nevertheless, caught the flu.  Unable to persuade the company to pay her £100, Mrs Carlill brought an action, in court claiming a contract existed which the company denied.  At first instance, despite being represented by a future prime-minister, the Carbolic Smoke Ball Company lost, a verdict upheld unanimously by the Court of Appeal.  It was a landmark in the development of contract law, refining the long-established principles of (1) offer, (2) acceptance, (3) certainty of terms and (4) payment although, it would be decades before the implications would begin comprehensively to be realized in legislation.  Not only did Mrs Carlill secure her £100 but she survived the pandemic, living to the age of ninety-six.  On 10 March 1942, she died after catching influenza.

In the UK and most of the Commonwealth, civil cases are reported in the form of Carlill v Carbolic Smoke Ball Company but in oral use spoken as Carlill and Carbolic Smoke Ball Company (although for notorious cases like this, an informal shorthand such as “carbolic” or “carbolic smoke” usually emerges).  Where a proceeding does not have formally designated adverse parties, the construct becomes “In the matter of”, spoken and written usually as “In re” or, more commonly “Re”.  In the US, the written form is the same for civil and criminal proceedings but when spoken, the “v” or “vs” is pronounced “vee” or “versus”.  Neither system appears helpful and it would be an improvement if both could agree to use “and” and “against” as required and write them in that form too.  It will never happen.

Criminal matters are written using the same convention but the “v” is spoken as “against”.  In Fagan v Commissioner of Police for the Metropolis (969 1 QB 439) a defendant’s conviction, for refusing to move his car after having inadvertently reversed over a policeman’s foot, was upheld.  Absurd as the facts of the case turned out to be, it was a useful illustration of the relevant legal principles.  In criminal law, there’s the requirement that both actus reus (act) and mens rea (intention) be present for a crime to take place.  Fagan argued that when he made the actus reus, because it was an accident, he had no men’s rea, but when he obtained mens rea, there was no corresponding actus reus.  There have been philosophers who would have found the logic of that compelling but the judges proved earthier, ruling that while omission cannot establish an assault, the actus reus of driving onto the foot and deciding to remain there constituted a continuing criminal act which was present when the mens rea occurred.  Mr Fagan’s conviction thus stood.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

Tuesday, June 13, 2023

Authentic

Authentic (pronounced aw-then-tik)

(1) Something not false or copied; genuine; real.

(2) Having an origin supported by unquestionable evidence; authenticated; verified: with certified provenance.

(3) Representing one’s true nature or beliefs; true to oneself or to the person identified.

(4) Entitled to acceptance or belief because of agreement with known facts or experience; reliable; trustworthy.

(5) In law, executed with all due formalities; conforming to process.

(6) In music (of a church mode and most often applied to the Gregorian chant), having a range extending from the final to the octave above.

(7) In music (of a cadence), progressing from a dominant to a tonic chord.

(8) In musical performance, using period instruments and historically researched scores and playing techniques in an attempt to perform a piece as it would have been played at the time it was written (or in certain cases, first performed).

(9) Authoritative; definitive (obsolete).

1300–1350: From the Middle English authentik & autentik (authoritative, duly authorized (a sense now obsolete)), from the Old French autentique (authentic; canonical (from which thirteenth century Modern French gained authentique)), from the Late Latin authenticus (the work of the author, genuine ( which when used as a neuter noun also meant “an original document, the original”), from the Ancient Greek αθεντικός (authentikós) (original, primary, at first hand), the construct being αθέντης (authéntēs) (lord, master; perpetrator (literally, “one who does things oneself; one who acts independently (the construct being aut(o-) (self-) + -hentēs (doer)) + -ikos (–ic) (the adjective suffix)), from the primitive Indo-European root sene- (to accomplish, to achieve).  The alternative spellings authentical, authentick, authenticke & authentique are all archaic.  Authentic is an adjective (and a non-standard noun), authentically is an adverb, authenticity & authentification are nouns, authenticate, authenticating & authenticated are verbs; the most common noun plural is authentifications.

The modern sense of something “real, entitled to acceptance as factual” emerged in the mid-fourteenth century and synonyms (depending on context) include true, veritable, genuine, real, bonafide, bona fide, unfaked, reliable, trustworthy, credible & unfaked.  As antonyms (the choice of which will be dictated by context and sentence structure) the derived adjectives include: non-authentic, inauthentic & unauthentic (the three usually synonymous but nuances can be constructed depending on the context) and the curious quasi-authentic, used presumably to suggest degrees of fakeness, sincerity etc).  Inauthentic from 1783 is the most often used and thus presumably the preferred form and in this it competes also with phony, fake, faux, bogus, imitation, clone, impersonation, impression, mimic, parody, reflection, replica, tribute, reproduction, apery, copy, counterfeit, ditto, dupe, duplicate, ersatz, forgery, image, likeness, match, mime, mimesis, mockery, parallel, resemblance, ringer, semblance, sham, simulacrum, simulation, emulation, takeoff, ripoff, transcription, travesty, Xerox, aping, carbon copy, echo, match, mirror, knockoff, paraphrasing, parroting, patterning, representation & replica & the rare ingenuine.  The verb authenticate (verify, establish the credibility of) dates from the 1650s and was from the Medieval Latin authenticatus, the past participle of authenticare, from the Late Latin authenticus; the form of use in the mid seventeenth century was sometimes “render authentic”.  The noun authenticity (the quality of being authentic, or entitled; acceptance as to being true or correct) dates from the 1760 and replaced the earlier authentity (1650s) & authenticness (1620s).

Beware of the inauthentic: The authentic Lindsay Lohan (left) and the Grand Theft Auto's (GTA 5) ersatz (right), a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

Real & fake appears as simple and obvious a dichotomy as black & white but humanity has managed over the millennia to create many grey areas in many shades, thus the wealth of antonyms and synonyms for “authentic”.  Authentic now carries the connotation of an authoritative confirmation (which can be formalized as a process which culminates with the issue of a “certificate of authenticity” although the usefulness of that of course depends on the issuing authority being regarded as authentic.  Genuine carries a similar meaning but in a less formalized sense and in some fields (such as the art market), something can simultaneously be genuine yet not authentic (a painting might for example be a genuine seventeenth century oil on canvas work yet not be the Rembrandt it was represented to be; it’s thus not authentic).  The word real is probably the most simple term of all and can often be used interchangeably but unless what’s being described is unquestionable “real” in every sense, more nuanced words may be needed.  Veritable was from the Middle French veritable, from the Old French veritable, from the Latin veritabilis, from vēritās (truth), the construct being vērus (true; real) + -tās (the suffix used to form abstract nouns).  The traditional of use in English however means veritable had become an expression of admiration (eg “she is a veritable saint”) rather than a measure of truthfulness or authenticity.

Other nuances also organically have evolved.  Authentic now implies the contents of the thing in question correspond to the facts and are not fictitious while genuine implies that whatever is being considered is something unadulterated from its original form although what it contains may in some way be inauthentic.  This is serviceable and as long as it’s not used in a manner likely to mislead is a handy linguistic tool but as Henry Fowler (1858–1933) noted in his A Dictionary of Modern English Usage (1926), it was an artificial distinction, “…illustrated by the fact that, “genuine” having no verb of its own, “authenticate” serves for both”.

Degrees of authenticity: 2016 Jaguar XKSS (continuation series)

In 2016 Jaguar displayed the first of nine XKSS "continuation" models.  In 1957, Jaguar had planned a run of 25 XKSSs which were road-going conversions of the Le Mans-winning D-type (1954-1956).  Such things were possible in those happier, less regulated times.  However, nine of the cars earmarked for export to North America were lost in fire so only 16 were ever completed.  These nine, using the serial numbers allocated in 1957 are thus regarded as a "continuation of the original run" to completion, Jaguar insisting it is not "cloning itself".  The project was well-received and the factory subsequent announced it would also continue the production run of the lightweight E-Types, again using the allocated but never absorbed ID numbers.  Other manufacturers, including Aston Martin, have embarked on their own continuation programmes and at a unit cost in excess of US$1 million, it's a lucrative business.

In the upper (or at least the most obsessional) reaches of the collector car market, the idea of “authenticity” is best expressed as “originality”.  As early as the 1950s when the market began to the process of assuming its present form, originality was valued because many of the pre-war machines first to attract interest (Bentley, Rolls-Royce, Lagonda et al from the UK, Duisenberg, Stutz, Cadillac et al from the US and Mercedes-Benz, Isotta Fraschini, Bugatti et al from Europe) had over the years receive different coachwork from that which was originally supplied.  At the time however, the contemporary records suggest that if a rakish new body had replaced something dowdy, it was a matter for comment rather than objection.  Nor were replacement engines and transmissions thought objectionable as long as they replicated the originals, there then being an understanding things wear out.  Those mechanical components were however among the first to come to the attention of the originality police and “matching numbers” became a thing, every stamped component with a serial number (engine blocks & heads, transmission cases, differential housings etc) which could be verified against factory records, made a car more collectable and thus more valuable.  It was a matter of originality which came to matter, not functionality which mattered; a newer, better engine detracted from the value.  In some cases originality was allowed to be a shifting concept especially with vehicles used in competition; if a Ferrari was found to be on its third engine, that was fine as long as each swap was performed, in period, by the factory or its racing team.

An authentic 1968 Chevrolet SS427.  Because Chevrolet was during the 1960s somewhat lax in recording the exact details of the exact configuration of the cars as they left the assembly line, it can be difficult to verify what's an authentic Chevrolet SS and what's not.  Quite a few Impalas and others have been modified and represented as what they're not and it can take an expert to tell the difference and that difference can be worth tens of thousands of dollars.  Fortunately, there are many experts.    

That exception aside, it’s now very different and, all else being equal, the most authentic collectable of its type is the one most original.  These days collectors will line up their possessions in rows to be judged by “certified judges” who, clipboards in hand will peak and poke, ticking or crossing the boxes as they go.  They’re prepared to concede the air in the tyres, the fuel in the tank and the odd speck of dust on the carpet may not be what was there when first the thing left the factory but points will be deducted for offenses such as incorrect screw heads, or a hose clap perhaps being installed clockwise rather than anti-clockwise.  Sometimes a variation from the original can’t be detected, even by a certified judge.  If a component (without a verifiable serial number) has been replaced with a genuine factory part number, if done properly that will often get a tick whereas a reproduction part from a third-party manufacturer will often have some barely discernible difference and thus get a cross.  Given the money which churns around the market, there’s a bit of an informal industry in faking authenticity and with some vehicles it is actually technically possible exactly to take a mundane version of something and emulate a more desirable model; the difference in value potentially in the millions.  In some cases however, even if technically possible, it may be functionally not: If it’s notorious that only ten copies were produced of a certain model and all have for decades been accounted for, it’s not plausible to possess and eleventh. However, there are instances where the combination of (1) the factory not maintaining the necessary records and (2) the vehicle itself not being fitted with the requisite stampings or identification plates to determine exactly what options may originally have been fitted.

Christ with the Woman Taken in Adultery by Han van Meegeren (1889–1947) following Vermeer (1632-1675).

The matter of authenticity is obviously important in the art market.  Usually the critical factor is the identity of the artist.  In May 1945, immediately after the liberation from Nazi occupation of the Netherlands, the authorities arrested Dutch national Han van Meegeren (1889–1947) and charged him with collaborating with the enemy, a capital crime.  Evidence had emerged that van Meegeren had during World War II sold Vermeer's Christ with the Woman Taken in Adultery to Hermann Göring (1893–1946; prominent Nazi 1922-1945, Reichsmarschall 1940-1945).  His defense was as novel as it was unexpected: He claimed the painting was not a Vermeer but rather a forgery by his own hand, pointing out that as he had traded the fake for over a hundred other Dutch paintings seized earlier by the Reich Marshal and he was thus a national hero rather than a Nazi collaborator.  With a practical demonstration of his skill, added to his admission of having forged five other fake "Vermeers" during the 1930s, as well as two "Pieter de Hoochs" all of which had shown up on European art markets since 1937, he convinced the court and was acquitted but was then, as he expected, charged with forgery for which he received a one year sentence, half the maximum available to the court.  He died in prison of heart failure, brought on by years of drug and alcohol abuse.

His skills with brush and paint aside, Van Meegeren was able successfully to pass off his 1930s fakes as those of the seventeenth century painter of the Dutch baroque, Johannes Vermeer (1632–1675), because of the four years he spent meticulously testing the techniques by which as a new painting could be made to look centuries old.  The breakthrough was getting the oil-based paints thoroughly to harden, a process which naturally occurs over fifty-odd years.  His solution was to mix the pigments with the synthetic resin Bakelite, instead of oil.  For his canvas, he used a genuine but worthless seventeenth-century painting and removed as much of the picture as possible, scrubbing carefully with pumice and water, taking the utmost care not to lose the network of cracks, the existence of which would play a role in convincing many expert appraisers they were authentic Vermeers.  Once dry, he baked the canvas and rubbed a carefully concocted mix of ink and dust into the edges of the cracks, emulating the dirt which would, over centuries, accumulate.

Authentically guilty as sin: Hermann Göring in the dock, Nuremberg, 1946.

Modern x-ray techniques and chemical analysis mean such tricks can no longer succeed but, at the time, so convincing were his fakes that no doubts were expressed and the dubious Christ with the Woman Taken in Adultery became Göring's most prized acquisition, quite something given the literally thousands of pieces of art he looted from Europe.  One of the Allied officers who interrogated Göring in Nuremberg prison prior to his trial (1945-1946) recorded that the expression on his face when told "his Vermeer" was a fake suggested that "...for the first time Göring realized there really was evil in this world".

So the identity of the painter matters, indeed, between 1968-2014, there was a standing institution called the Rembrandt Research Project (RRP), an initiative of the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (the NOW; the Netherlands Organization for Scientific Research), the charter of which included authenticating all works attributed to the artist (Rembrandt Harmenszoon van Rijn (1606-1669).  That was a conventional approach to authentication but there are others.  In the West there’s a long standing distinction between “high art” and “popular art” but not all cultures have that distinction and when the output of artists from those cultures is commoditised, what matters is ethnicity.  In Australia, the distinctive paintings categorized as “indigenous art” have become popular and are a defined market segment and what determines their authenticity is that they are legitimately and exclusively the work of indigenous artists.  The styles, of which dot painting is the best known, are technically not challenging to execute and thus easy to replicate by anyone and this has caused where non-indigenous hands have been found (or alleged) to be involved in the process.

The Times (London), 8 March 1997.

In 1997, Elizabeth Durack (1915–2000), a Western Australian disclosed that the much acclaimed works of the supposed indigenous artist “Eddie Burrup” had actually been painted by her in her studio, Eddie Burrup her pseudonym.  To make matters worse, prior to her revelation, some of the works had been included in exhibitions of Indigenous Australian art.  Although noted since the 1980s, the phrase “cultural appropriation” wasn’t then widely used outside of academia of activist communities but what Ms Durack did was a classic example of a representative of a dominant culture appropriating aspects of marginalized or minority cultures for some purpose.  Sometimes (perhaps intentionally) misunderstood, the critical part of cultural appropriation is the relationship between the hegemonic and the marginal; a white artist creating work in the style of an indigenous, colonized people and representing it in a manner which suggests it’s the product of an indigenous artist is CA.  Condoleezza Rice (b 1954; US secretary of state 2005-2009) playing Chopin on a Steinway is not; that’s cultural assimilation.  Once the truth was known, the works were removed from many galleries where they had hung and presumably the critical acclaim they had once received was withdrawn.  Both responses were of course correct.  Had Ms Durack represented the works as her own and signed them thus that would have been cultural appropriation and people could have responded as they wished but to represent them as the works of someone with a name all would interpret as that of an indigenous artist was both cultural appropriation and deceptive & misleading conduct with all that that implies.

One of the photographs run by The Australian (News Corp) in this report on the involvement of white people in the production of indigenous paintings, April 2023.

More recently, there have been accusations white staff employed in a commercial gallery where indigenous artists are employed to create paintings have been influenced, assisted or interfered with (depending on one’s view) in the production process.  According to the stories run in the Murdoch press, a white staff member was filmed suggesting some modification to an artist although whether this was thought to be on artistic grounds or at attempt to make something more resemble what sells best isn’t clear.  However, in a sense the motive doesn’t matter because the mere intervention detracts from the authenticity of the product, based as it is not on the inherent artistic merit but on the artist being indigenous.  In that the case was conceptually little different from Göring’s “Vermeer” which for years countless experts in fine art had acclaimed as a masterpiece while it hung in Carinhall, an opinion not repeated as soon as its dubious provenance was revealed.  Nor is it wholly dissimilar to the case of the replica 1962 Ferrari 250 GTO which is essentially a carbon copy of one of the 40-odd originals made (indeed it was in some ways technical superior) yet it is worth US$1.2 million while the record price for a genuine one was US$70 million.  So for a product to be thought authentic can depend on (1) that it was created by a certain individual, (2) that it was created by a member of a certain defined ethnicity or (3) that it was created by a certain institution.

Salvator Mundi (Savior of the World, circa 1505), oil on walnut by Leonardo da Vinci (1452–1519).

In art, authenticity is precious in many senses.  Salvator Mundi, the critics admit, is not an exceptional painting but once authenticated as the work of Leonardo, it created its own exceptionalism, in 2017 becoming the most expensive painting ever sold at public auction, attracting US$450 when offered by Christie's in New York.  The criteria for assessing the works of indigenous artists is also beneficial for them because unlike mainstream art, they’re not assessed as good or bad but merely as authentically indigenous or not.  That’s why there are no bad reviews of indigenous art or performance because the concept is (1) irrelevant, (2) such an idea is alien to indigenous peoples in Australia and (3) if expressed by white critics would represent the imposition of a Western cultural construct on a marginalized group.  Dot paintings and such are marketed through the structures of the art market because physically they’re similar objects (size & weight) to other paintings but they’re really modern, mass-produced artefacts which depend on provenance as much as a Ferrari, Leonardo or Vermeer.