Mark my words (as if they are that important): the future will not look kindly on the gimmick-bokeh that dominates the aesthetic of 2000s photography, just as we get a chuckle out of 1970s pictures with excessive sunsets, lens flare, and nipples. People yet to be born will wonder why photographers in the 2000s took insanely expensive lenses, better than any ever designed to date – and cheaper – and then used them to simulate astigmatism, near-sightedness, and macular degeneration. The most charitable explanation will be that photographers were trying to show solidarity with the visually impaired.
The buzzword (today) is subject isolation. But why are we isolating a subject from its context? What’s wrong with the context? Are we creating millions of pictures of the same peoples’ faces with nothing else in the shot? Are they people or products?
In the present, good composition can still be shot at f/16. Small apertures are also obligatory on larger-format film cameras because a lot of those lenses have serious light and sharpness falloff at the edges at their maximum apertures, especially with the focus at infinity. Nobody buys a $3,000+ 6×12 camera to get the types of pictures you could see from a $250 Lomo Belair.
There is a reason that early autoexposure SLRs used shutter priority: if you had to make a choice for what would be in focus, it would be your subject; if you had light to spare, you’d want use as small an aperture as your lowest desired shutter speed would support. And that thinking underpins historic picture-making. Intentionally shallow depth of field is not a feature of most of the world’s most iconic images. Arnold Newman did not need shallow depth of field to shoot Stravinsky. Eugene Smith did not shoot Spanish policemen as an exercise in subject isolation. And David Douglas Duncan captured every crease in the face of an exasperated Marine captain. How about Richard Avedon with his Rollei and every celebrity on earth? There are exceptions, but throughout history, wide apertures were primarily driven by a need to keep shutter speeds high enough to avoid blur. Light constraints are not such a consideration when ISO 6400 is a thing on digital cameras.
The worst part about bokeh, and the one no one talks about, is that it can actually be unpleasant by causing eyestrain (or maybe brain-strain). In many ways, a human eye – if you looked at the whole image projected on the retina at once – resembles a cheap Lomo-type lens: sharp in the middle (the fovea) and blurry at the edges. It even has a complete blind spot (the punctum caecum). The eye has a slow aperture, estimated by some to be f/2.8. But, dammit, everything looks like it is in focus. That’s because your eyes are continuously focusing on whatever you are looking at. Your brain is continuously piecing together fragmentary information (the blind spot thing is incredible – vertebrate biology beat Adobe to content-aware fill by about 500 million years). The end result is what looks (perceptually) like a scene where everywhere you look, things are in focus. It’s actually pretty amazing that this works.
In every photo, there is a compression of three dimensions into two. More depth of field allows your eyes to wander and allows you to process the scene fairly normally. When you look at bokehlicious pictures, definition is concentrated on one object (and often just a piece of it). You might find your eyes (or visual perception) constantly trying to focus on other aspects of the scene besides the subject. But neither your eyes nor computational photography can remove extreme artifacts once they are “flattened.”
Scroll back up to the picture at the top. Same composition, shot at f/8 and f/1.5 with a 50mm ZM Sonnar. Look left and look right. On the left, you can look almost anywhere n the scene and see whatever visual element you want to scrutinize, at at least some level of detail. On the right, you are always and forever staring into the Contractor Ring®. You can try to focus on other elements of the picture on the right, but the information simply is not there. Need an aspirin?
And it can be fatiguing, more so that the aesthetic is played out and that anyone with an iPhone X can play the game. Pictures with ultra-shallow DOF don’t look natural. They are great every once in a while, or if you need a 75/1.4 Summilux to get an otherwise-impossible shot, but otherwise, get off your ass and move the camera (or your subject) into a position with a reasonable background.
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Can you believe that Pullman is used for “bus” in parts of Europe? Jeez, I thought that a pullman was inherently a rail vehicle. How dare usages change! Somebody get on the Rail Transport User’s Group (RTUG) and post a philosophy question. We need to take the name Pullman back!
But really, how many hours of the waning days of old men’s lives have been wasted arguing about whether newfangled cameras grabbing electrons can be “photography” as an art or a craft? How many should? Would that time be better spent arguing about cars, finishing, guns, boats, or wristwatches?
You can spin off into the etymological argument: electrons aren’t photo + graphy because the light is not making the image directly. Or there is transformation. Or something. Reliance on ancient Greek is misguided. Photography was a neologism invented in the 19th century. It was not true to the ancient Greek then (no thing was – or is – drawing or scratching in the sense of γραφή); the 19th-century term was just an arbitrary description for what happens when light was the prime mover in the imaging process. And we have legions of words whose meanings have deviated far from what they would have meant to Greeks or Romans – or even what they meant the first time the terms were coined. Hence the weird crossover between autobuses and rail cars.
Is photography art? If you believe that, look at what the art world says. It’s all photography. That’s what museums call anything that is an image captured by a machine (film or digital) where the substantive content originates in the original image recording process. The only distinction made (and only sometimes) is for pre-silver-halide work, and even then only if it is one of the more obviously exotic (Daguerrotypes, Cyanotypes, and other things that deviate from the look of optical or inkjet paper). Odd that they don’t care what system originated the image; they only care about the medium it is ultimately expressed. Just like other things you see on the walls are “oil,” “watercolor,” “pastel,” “drawing,” etc. A “dye diffusion print” does not differentiate between originating on negatives or a Handycam.
Or maybe it’s not odd. Art requires a visible or tangible expression, and in the end, that is all that counts.
There is nothing such as “maximum shutter actuations.” People act as if there were some magic number. People freak out about this. The rated number is unlikely to be reached for most amateur photographers. It’s unlikely to be reached by two amateurs using a camera back to back. Maybe even three or four, unless one used the camera at the beach or somewhere gritty.
- The rating itself is the MTBF, or Mean Time Between Failures. That means that on average, Nikon’s rated shutters last 150,000 cycles. You don’t know whether that means most last to 250,000 and relatively few go 50,000 or whether all of them are somewhere around 150k.
- There is no warranty that a shutter will get to 150,000. Your two year factory warranty will expire one day, and it could be at 18,000 exposures or 180,000. Doesn’t matter. Nikon is not fixing it for you for free.
- Inside the factory warranty, Nikon does fix it for free, shutter count notwithstanding.
- Likewise, Nikon is not fixing your used camera, even its original sale was within 2 years ago, or even if the shutter failed at 8,000.
It’s all marketing.
By the way, when Nikon was coming up with its 150,000 exposure MTBF, that was 4,166 rolls of film, which was more than most people shot in their lifetime. For a pro, a new shutter (which in those days was a $250 repair) cost nothing compared to the cost $12,000 in film you shot before you got there!
[2008-11-02] I have heard only one good argument for hunting marine mammals to extinction. It came from my friend Leo, who pointed out that mammals spent millions of years evolving from sea life – so what kind of perverse animal wants to go back to the ocean?
The idea of perversity comes to mind when people criticize current optics as being attacked as “too sharp,” “too contrasty,” or having “bad bokeh.” This seems to happen most with new rangefinder optics coming out of Leica and Zeiss.
As a preliminary matter, it is totally OK to buy a previous-generation lens because it is all one can afford (or all one wants to spend for a particular focal length). But now that we have that out of the way, let’s talk about the seals and the whales.
The inexorable tide of history
Query whether at any point in optical history any optical designer pulled back because a design exhibited too much sharpness, too much contrast or too little uncorrected spherical aberration. To the contrary, if Berthele, Berek or Mandler had been able to incorporate mass-produced aspherics, they no doubt have been building aspherical Summicrons and Summiluxes instead of Sonnars, Elmars or 35mm pre-aspherical Summicrons. By the standards of yesterday’s optical designers, today’s multicoated, aspherical, retrofocus wideangles would seem like gifts from the gods.
One can always dumb-down a lens that is sharp or contrasty by stopping it down until it diffracts, using a softening filter, diluting your developer, going down a grade in optical printing, changing the RAW development curve, or even simple mis-focusing. If you are consistently do the opposite of any (or all) of these, you probably really want a lens that is sharper and more contrasty. One would wager that of all of the Photoshop or Lightroom controls, the most popular are the ones that make pictures more snappy.
Some people would make the argument that lower-contrast optics maximize dynamic range on digital cameras, but this is an argument that only carries water in scenes with 500:1 contrast ratios – and even then would assume that anything of interest lay in the shadows (hint: take a look somehow how JPG compression is set up – to preserve highlight detail, which perceptually is where the interest generally is). Uniformly low-lighted scenes generally call for higher-contrast lenses because those scenes actually have a very limited brightness range.
Bokeh or baka?
If the justification for looking at old lenses is “bokeh,” question why it is even a concern. Bokeh seems to have become an end only in the past 15 years – and it is legitimate to question why it merits so much internet bandwidth. My personal observation, based on the existence of things like the Nikon Thousand and One Nights site, is that it originated in the nostalgia of some older photographers in Japan: “When I was 18, I really wanted a Nikon SP…”
But there are practical reasons to ignore the bokeh question altogether. First, most of the discussion of bokeh seems to revolve around the use of lenses 50mm and shorter (or 35mm or shorter on a camera with a crop factor) for purposes of taking close-range pictures. Many of these pictures just as easily could be taken with lenses twice as long at twice the distance (example: a portrait at a meter), Consider that:
– A 50mm lens (on a 35mm camera) at f/2 and a meter has a depth of field of 36mm (about 1.5 inches)
– A 90mm lens (on a 35mm camera) at f/2.8 and 1.8m has a depth of field of 50.6mm (about 2 inches). Even shot at f/2 (assuming it has that aperture), it would still have 36mm depth of field.
With a longer lens, one is not crowding human subjects or hitting their faces with the unflattering distortion that comes with short lenses. And we don’t see systemic complaints about bokeh with longer lenses (no doubt because with four or five elements they are less corrected in general), so if one has the light to use one, why not? What’s that you say? You don’t have enough light? Can’t afford a telephoto? Even if your only available optic is a short, fast, hypercorrected aspherical lens, the look of the background can be vastly improved by manipulating the relative distances from camera to subject and subject to background.
Second, many photographers appear to emphasize (and rely on) bokeh to make up for what are really severe compositional defects in photographs (point light sources in frame, relatively busy backgrounds, etc.). The use of bokeh for this purpose goes hand-in-hand with the “wide-open, close-up” school of photography that not only leans on bokeh to tidy up backgrounds but also uses shallow depth of field to increase interest in what ordinarily would be unremarkable subjects. Shooting with a camera on shutter priority is an excellent discplinary exercise. With far less conscious control over depth of field, one composes far more carefully.
Finally, perhaps best way to forget about bokeh as a factor is to ask oneself just how many of the great pictures in history were ruined due to bad bokeh. The answer is is, “none.” No one even thought of the concept until the late 20th century, and it is arguably more wrapped up in romanticism than anything that has ever been validated as sound photographic practice.
First, the real motive for this is to avoid finishing a piece on three or four Canon p/s cameras from the 1990s and 2000s that you must try.
Let me start by saying this is a fantastic movie. Definitely worth 3 hours. If you liked the original, this is a distant continuation that is within bounds for narrative. And if Roger Deakins does not get an Oscar for this, there is no God, and many of us therefore will be able simplify our planning for the future.
But… I can’t resist taking Villeneuve’s masterpiece to task for some of its strange inconsistencies, not the least of which have to do with photography and technology. I am going to avoid discussing things I have seen elsewhere. Don’t read this if you want to avoid spoilers. Or if you want to read something coherent and not written in a sinus medication fever dream (thanks, autumn weather…).
Where are our black-border Polaroids? A central reference point of the first Blade Runner was photographs: Leon’s pictures of his friends, Rachael’s snapshot with her mom, and Deckard’s oddly anachronistic picture with an (iced tea? beer can?) and his ex-wife (or maybe that was his dad and mom?). Of course, the hard copies were all Polaroids with black borders and really cool red imprinting. The Blade Runner Curse, of course, would drive Polaroid out of business some 26 years later. Ok, not.
Photographs played a central role in the original movie – so much so that characters like Leon would risk death to retrieve collections of them. They stood in as a proxy for history – and a past. Replicants used them like holy cards. These elements are completely missing in BR 2049; the past is prepackaged – so much so that its consumers like Officer K even know it is fake. That seems to defeat the purpose of fake memories, does it not?
One of the coolest pieces of “not-quite-yet” technology you see in BR 2049 – related to the Sapper Morton scene and visible just for an instant – is a printed still photo with motion. That comes up but once. This would require one of the thinnest and most elegant power sources ever invented. Despite this super-cool print technology, photo drones are somehow larger than they are in backward old 2017, except for Niander Wallace’s vision drones, which looks like a combination of massage stones and every cheap electronic device sold on Ebay in 2003. The one constant is the massive and invasive image advertising; in the original, it was made up of blimps and Jumbotrons; now it is enormous holograms that know you’re looking – and interact with you. They even managed to jam a Frank Sinatra hologram into a Sony bottle. But by far the most incredible use of images is in the flickering holographic slugfest that Officer K and Deckard have in Las Vegas. This a perfected version of the distraction technique used by Scaramanga in the Man with the Golden Gun. And by “perfected,” I mean that Hervé Villechaize is not providing color commentary over a loudspeaker.
Through an eyeball scanner darkly. This whole thing at the beginning is actually absurd. Officer KD6-3.7ABCDEFGHIJK (no wonder Joi wants to call him “Joe”) goes to a remote location, the last known location of Sapper Morton. He sees a photo of Morton’s face on his car computer. Police procedures then (weirdly) require him to get close enough to a heavily-built, military-model, killer clone to scan a serial number on his sclera with a UV light whose bulb has to pulse for some reason. The clone will display this number this voluntarily, of course. Right. Then K has to cut said eye out and put it on a little scanner. To get paid. After killing a guy three times his size, of course.
The problem is that none of this is actually necessary. Morton is a manufactured product, and if there is no other way to identify him, facial recognition computing should have identified him within a reasonable doubt. And K should have aired Morton out as soon as he saw him.
But why the eyeball cutting? LAPD is coming out to close out the crime scene anyway (remember how Officer K comes back to a sealed scene – which he then violates?) Presumably a digital photo of a dead Morton would suffice until backup arrives to provide reinforcement. Except that we need the visceral thrill/horror. Because Chew’s eye shop in the first movie.
Also, did you notice that police body cameras don’t exist in this universe? I would think that if you have humanoid slaves running around with guns, you’d want to make sure that Miranda rights are being read and that no one is getting killed for a broken taillight on a Spinner.
Wood. We learn late in the movie that wood is so valuable that you could trade a small amount of it for a “real” goat. Niander Wallace’s office is full of it. So why didn’t we see Officer K strap Sapper’s tree to the top of his Spinner and take it? Ok, maybe a stretch, but somebody would have taken it.
Slaves clones that have holographic AI girlfriends? Let’s get back to this “getting paid” thing. Officer K is a Replicant, and a Nexus-9 “obedience” model at that. The entire K story is weird because we are told right at the beginning that he is a Replicant. It is implied that Replicants are second-class citizens. And yet K:
- Gets paid above his living expenses, hence the emanator.
- Rents and inhabits human housing (and a fairly big place by Manhattan standards) with no supervision.
- Has a full suite of home automation.
- Gets to drink the same whisky his human boss does.
- Apparently has enough leisure time to read books.
- Gets to smoke.
- Gets his 2 seconds of pure water in the shower, which is probably as much as anyone gets.
In light of this, you can only wonder what the legal status of Replicants might be. It would actually have to be pretty good. I guess they have to do what their bosses tell them to (“join the club,” said every 20th century office worker ever) and can’t reproduce. Given where we saw Replicants in 2019 in the previous movie, you know, in offworld kick murder squads, mining colonies, garbage collection, you would think Officer K should be living in the basement of police HQ, eating gruel, living like a monk, reciting his Nabokov and liking it. Right?
So K is basically a human for all external intents and purposes. But then his department apparently tells his colleagues that he is a clone (so much for HIPAA… thanks, HR) and his memories are baloney. Coco the Mortician even uses the term “skin job” in front of him. That’s pretty gutsy considering that K could probably kill him with his little finger. But somehow it also becomes known to K’s neighbors that he is a “tin soldier” (ahem, who leaked this?). Wouldn’t you want your hunter-killers to stay on the down-low? When you’re going to out your employee/slave, why would you even bother making blade runners look like average people? Other Replicants seem capable of detecting their own kind, so it’s not even good cover.
Joi but no Luv. Ok. Back to the point. Part of K’s home automation is his AI girlfriend Joi. Understand that in this universe, there has been a history of violent mutinies by past models (due in part to their emotional explorations…). Clearly this is such an issue that you have to put the Baseline Test on even the new submissive models. And yet they allow K and his friends to have a technological toys for which they might develop affection? Granted, there are many who would become clone slaves if Ana de Armas was part of the deal. But still. And speaking of which, what the hell kind of holographic technology would allow Joi to appear outside a vehicle, through an opaque door? There is technology. And then there is physics. And then there is the need to write in a touching scene when Ryan Gosling is knocked out and in danger?
Replicant escorts but no pimps. Okay, so Mariette (Mackenzie Davis) looks really weird and crazy-eyed all the time. Because Mackenzie Davis. And the idea of a Replicant-Replicant-Hologram (RRH) ménage-à-trois is only slightly more weird – because it requires a variety of wraparound projection that does not exist in our universe. But who is Mariette’s pimp? Remember, in this universe, all Replicants are (expensive) capital goods owned by someone or some company. They don’t reproduce (I guess that saves money on birth control for the escorts?), and as far as anyone knows, they are never freed from their non-human legal status. If Mariette’s a Nexus-8, she should be on an, um, kill list. If she’s a Nexus-9, she should have never left her employer. And who is that? The government? LAPD?
Let’s back up a step. How does an AI hologram hire an escort for her owner (or licensee, I guess….)? The ability to enter commercial transactions, to live in your own house, and to associate with whomever you like are rights associated with humans. Or Replicants. But now computer programs?
And for all of her baseline testing, it doesn’t freak Chief Joshi out that her would-be sexbot is letting his virtual girlfriend spend all of his paychecks on cheap booze and hookers? Is she even detecting that? She’s pretty much the worst detective ever (where’s the eyeball of the child But her outfits are good. Not as good as Luv’s, but still respectable.
Bald man in the yellow box. This dude is not a Replicant? He claims to have remembered the blackout as a child. But this is the most android-looking guy ever to show up in this film series. Also, can “born humans” actually see in this color light?I guess if you’ve worked in a Philippe Starck hotel in the early 2000s.
Optical memory. Ok, so a background assumption is that there was some massive EMP event that eliminated all electronic records. Which is fine, except for the fact that Tyrell (and now Wallace) apparently stored everything in optical format immune from electromagnetic pulses: cats-eye marbles. Shooters, from the size. Why not just say that everything was stored on magnetic tape and that it got wiped by the pulse? If Pan-Am and Atari still exist in that universe, I’m sure that 4mm LTO does.
Wallace’s phantom security video. One of the more screwy things in the original BR is the lack of security cameras. I mean, Roy Batty manages to smoke Tyrell by getting in through an elevator with no camera – and without ever being seen by a security camera in the Grand Poobah’s bedroom? Same with Leon and Holden earlier in the movie (where are the metal detectors?). We see video of the VK test, but apparently no one is able to track Leon on the way out of the building. And yet, when it’s time to research Rachael when K comes to corporate HQ, here are a bunch of security videos that were taken in Tyrell’s office. And conveniently, they are shot from the POV of the original Rachael-Deckard introduction scene. Not from the Voigt-Kampff machine, which only scans eyes.
Gaff. I am so glad that they fixed the color balance on Gaff. I mean in the first movie, Edward James Olmos must have had jaundice — or someone had swung the Lightroom tint slider the wrong way to “acting in yellow-face.” Also, it’s apparent that in the 30 years between the movies, they taught Gaff how to speak in accent-free English and got him that surgery to fix those weird glowing yellow eyes. The LAPD must have great continuing education and awesome health insurance.
Props qua props. In Vegas, note that the readout on K’s scanner says that radiation is “nominal.” Which means normal. So the fact that Deckard is there does not bear on people’s weird need for him to be an android. And when Luv & her henchmen show up, the henchmen, inexplicably, are wearing gas masks. Why? If they are replicants, they would not be bothered by anything on site (because humans would not). There is no reason for them to be human, since Luv presumably would not be commanding human bodyguards. If they’re human, they also would not need the masks at all. So this is just for optics, so to speak? To make the guys faceless?
Stelline’s lab and that Zeiss thingie. So we get to Ana Stelline’s office. It’s like the holodeck from Star Trek: the New Generation. She’s got this thing with dials. Not sure I got a good look at it, but the number of settings and third-stop increments mean that it must have been made by Zeiss. When K comes in, she is generating a memory of a 20th-century birthday party. Which she could not have seen. It gets weirder when you realize that she programmed the wooden horse memory in the third person. You know, like in Rocky IV when Apollo Creed died and Rocky remembered running with him on the beach (in a completely heterosexual way). How did Stelline know what she herself looked like? I don’t think the San Diego orphanage/dystopian Foxconn plant had a lot of mirrors.
Syd Mead! Las Vegas is pretty clearly either a Mead design or Mead homage. The influential industrial designer (exported from Detroit, FYI) left his fingerprints all over this movie. But a really nice touch is that the K’s spinner looks like a DeLorean (n.b., it’s a Peugeot, which supplied DeLorean with engines), but the bad guys drive spinners that look like 1963 Lincolns that would have been in design when Mead was at Ford. That said, I don’t want to be the one to say it, but the production design of BR 2049 is not very consistent with the original. The Mead/Scott design for the original involved recycling and retrofitting old buildings. So unless the original was all shot in the Fourth Sector, there is a lot of explaining to be done about where all the pipes and ducts have gone – as well as what happened to all of the Asian people.
The law. Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. “It is possible,” says the gatekeeper, “but not now.”….The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am taking this only so that you do not think you have failed to do anything.” (Tr. Ian Johnston).
It’s common knowledge (at least among people who pretend to have remembered college lit) that Joe K is like Josef K of Kafka’s Trial. What you may not have connected is that visually, K’s approach to Deckard’s casino is actually an homage to the cartoon short that opens Orson Welles’ adaptation of the Trial. Except that Welles is narrating from “Before the Law,” an unfinished short story. I don’t know who in the production is channeling Melville and Eco, but at some point you come to the realization that this story has cadged half of all religion and western culture (for starters, Moses; Jesus, Mary, and Joseph; Pinocchio; Dickens’ Tale of Two Cities and Oliver Twist; Graham Greene’s The Power and the Glory, World War II soldiers and aviators (“[GI] Joe”), tech moguls…)
The stars. So an image that appears early on is where Niander Wallace makes a statement that “we should own the stars.” Stars only appear once visually, in the peyote-and-are-they-eating-Deckard’s-dog? scene. But Ana Stelline is a reference to “little stars,” meaning that the key to this mystery is on earth.
Elvis! No comment on what went on in the casino, and it’s an awesome sequence, but are the holographic projectors of the future really a bunch of projection TVs from the 1970s with R, G and B lenses? Or are these DLP projectors gone really, really wrong?
Joi (the reprise). This is just a nerdy technical point – when Joi appears naked in the huge billboard near the end, did you notice that her color scheme is that of a person shot in 720nm infrared? Including the black eyes? It’s actually pretty impressive, when you consider that the scene was shot live and optically, not composited in with a computer.
Ok. Back to writing up some Sure Shots. If you want to see a fantastic deconstruction of the original Blade Runner, check out Typeset in the Future. That article even shows you what is in the dummy text used in props.
It’s been a mere couple of days, and there has been a lot of Internet Indignation over the idea that PLR IP (the successor to Polaroid’s intellectual property) would demand that Fujifilm pay to license the square format for Instax Square. Most of what I have seen is based on incomplete suppositions about the law — and the history of instant film in the 21st century. A lot of comments say – in so many words – that PLR is just a bunch of greedy [——s] trying to cash in. You’re entitled to your opinion, but this is far more nuanced a situation than most reflexive internet commenters realize.
Why is PLR demanding royalties?
Three points here. First, the law of intellectual property (patents, trademarks, copyrights) is designed to confer legalized monopolies, not to promote competition or assure that consumers have the best selection or best price. It is designed to compensate creativity, innovation, and brand-building/maintenance by giving the creator or its successor exclusivity for some period – or in the case of trademarks, indefinitely. Don’t confuse IP law with antitrust law, which does things like preserving competition in price and preventing agreements, business combinations, or sales practices that improperly leverage market power to make consumers pay more.
Second, intellectual property is transferrable. You can deride the idea of “cashing in on an IP portfolio,” but however distasteful you think it is, it’s perfectly permissible under the law. In fact, you’ll see on pretty much every patent application ever filed that patents are assigned to workers, who then have to fork the rights over to their employers. Patents are licensed all the time, and there are thousands of instances where an inventor does not see any part of the profits because he or she cashes out. Some companies make it their business to own and license patents for money. Those same companies sometimes fund (or pay off) the work that led to the patent in the first place. The average inventor lacks the capital to realize ideas; if it weren’t for investors, most consumer products you use on a daily basis simply would not exist.
Finally, PLR absolutely has the right to “cash in” on any valid IP it obtained in the wake of the Polaroid bankruptcy. Bankruptcy does not automatically cancel a company’s IP; in most bankruptcies, that is liquidated to pay the creditors. Think of it this way – General Motors Corporation went out of business about ten years ago. All of its rights in the various products it sold went to General Motors LLC – which like PLR IP was a new company with none of the same owners. The current GM has the ability (from an ownership standpoint) to sue anyone for infringing any trademark that was ever used by any prior version of GM. So PLR IP stands in the shoes of old Polaroid for ownership. That doesn’t mean that the intellectual property is valid; it just means that PLR can sue.
How did this lawsuit start?
Next, let’s talk about how this lawsuit started: Fujifilm filed a declaratory action to establish whether or not it can sell Instax Square without paying a royalty. That is a proactive step to take. Fujifilm got a nasty-gram from Polaroid, Polaroid did not file suit, and Fuji wanted to bring the issue to a head before it distributed too much Instax Square and ran up too much in potential liability. So it was Fuji that decided to spend a few million on the exercise.
What is Fujifilm’s rationale?
I would posit that if this suit is not just being used by Fujifilm as negotiating leverage, this will be a long, expensive, dragged out piece of litigation and not necessarily because of anything PLR will do. It may well make this a mega-case. But Fujifilm’s own arguments are all based on concepts that are neither slam-dunks, nor ones that will be decided short of expensive expert work or a trial. Fujifilm has three principal arguments in its complaint (reproduced here but condensed and consolidated):
FUJIFILM does not use the “square within a square” form factor of its INSTAX instant film as a trademark, nor as any other indicia of the source of its products… FUJIFILM’s use of the “square within a square” form factor for its INSTAX instant film has not caused, nor is it likely to cause, confusion as to the source, affiliation, or sponsorship of FUJIFILM’s products and services or Defendants’ products or services.
Likelihood of confusion could be a challenging issue for Fujifilm. The issue is likely going to be addressed in a confusion survey in which a couple thousand people are going to be shown an Instax Square print. For those in the survey group who aren’t familiar with Instax, what will they call the prints?
Defendants do not currently use and have not used in commerce the marks that are the subject of the PLR Trademark Registrations for any of the subject goods set forth in the PLR Trademark Registrations.
This is an abandonment argument. In general, there is a rebuttable presumption that when a party does not exercise a trademark for three years, that it is abandoned. That is not an ironclad rule because “intent to resume” is a way around that. Moreover, bankruptcy standing alone is not generally recognized to cause abandonment.
Abandonment requires clear and convincing evidence to prove – meaning that you don’t get a verdict or a judgment based on the 50.0000001% certainty standard in your garden variety civil case. In fact, “clear and convincing evidence” is the same heightened standard used to prove fraud. It is also more akin to “beyond a reasonable doubt.”
Now take a look at what is going to get presented to a judge (or a jury if PLR demands one):
- Polaroid Corporation made SX-70 film (the subject of the trademark/trade dress dispute here) starting in the early 1970s.
- Polaroid sued Kodak in 1976 when Kodak introduces line of integral film cameras that competed with the SX-70.
- At about the same time Kodak instant went off the market, but before the Kodak case was resolved, Polaroid and Fujifilm settled their own patent dispute, resulting in (among other things) a territorial distribution agreement keeping Fujifilm integral out of the United States, licensing the patented integral technology to Fuji, and giving Polaroid access to Fujifilm’s video technology.
- In 1991, Kodak and Fuji settled for $925 million, making instant film the biggest patent case in U.S. history.
- In 1998, Fujifilm started making some sizes of Instax (its name for all instant films).
- In 2001, Polaroid imported Instax Mini 10/20 film (which it sold as “300” film) and sold the camera as the Mio. In the same year, it filed for reorganization and its assets were sold to an affiliate of Bank One. The company that bought the assets was named Polaroid Holding Company, the old Polaroid Corporation became Primary PDC, Inc., and PHC began doing business under Polaroid Corporation.
- In 2004, Polaroid stopped making the negatives necessary for integral film. This, it thought, would be a decade’s worth of stock. Wrong!
- In 2005, Instax/Mio folded, as did Instax Wide, in the U.S.
- In 2005, Polaroid Corporation (PHC) was sold to Tom Petters.
- In 2008, Polaroid went out of business (when Petters was prosecuted for investment fraud) and stopped making chemical SX-70/600 style film (and in Europe, the raw materials stockpiled in 2004 had now been exhausted – 6 years ahead of predictions).
- During the 2008 liquidation, Florian Kaps – the largest online distributor for Polaroid – bought the 50,000 remaining packages of SX-70 film. He got Ilford onboard and spent $3.1 million buying the production equipment at Enschede (NL). With the help of good old PR extortion, he got Polaroid Europe to cooperate in allowing the workers to keep the plant running (albeit with re-engineered products).
- In the same year, Instax Wide and Mini came back under Fujifilm branding.
- In 2009, Polaroid’s IP was transferred to a new entity owned by an investor group. Notably, “Polaroid” was still being used to sell books and other things recalling the SX-70/600 instant print.
- In 2010, the Impossible Project released its first film based on Polaroid SX-70/600 format and concept.
- In 2012, Wiacezlaw “Slava” Smolokowski bought 20% of the Impossible Project at the behest of his son, Oskar.
- In 2014 (December) the Pohlad family bought the majority interest in new Polaroid for $70 million. Oskar Smolokowski becomes the CEO.
- In 2014, Slava Smolokowski (his father) became the biggest shareholder in the Impossible Project.
- In 2017 (January), Polaroid released the Pop 3×4 Zink (Zero Ink digital) amera that used the classic SX-70/600 borders.
- In 2017 (April), Fujifilm introduced Instax Square. The SQ10 camera renders digitally taken images on (arguably) SX-70-proportioned prints, just like the Pop. The difference is that it uses chemical film/paper rather than sublimation printing.
- In 2017 (May), Smolokowski (senior?) bought the Polaroid brand and IP, bringing both it and the Impossible Project under the same ownership. Presumably, Polaroid licensed its IP to Impossible. Certainly it licensed the name, and Impossible is now “Polaroid Originals.”
- At around the same time, PLR made demands on Fujifilm.
- In 2017 (November), Polaroid brought its trademark cancellation action in the Southern District of New York.
(and this is just the story of integral film – Polaroid and Fuji had other collaborations in pack film, for example, like Type 689, which reportedly was made by Fuji).
Ok. This is still not everything that has happened in the integral film world – but you get the point. A part of this suit, I’m sure, is going to be untangling exactly who owns what and what continuities exist. I’m also sure that both Fujifilm and PLR and Impossible Project spent a lot of money figuring this out in the few first months of the year. It’s actually interesting also that this suit does not name Polaroid Originals (née Impossible Project) or Smolokowski, since I think you’d want to resolve everything at once.
The alleged “design” of an instant film border frame with a thickened portion that is the subject of the PLR Trademark Registrations is purely functional…
This is probably going to be a lot of engineers doing exposition on ways to spread chemicals. Fujifilm will argue that a thickened border is necessary for the chemical pod. Too bad for curiosity’s sake that the papers that lay this all out will probably never see the light of day in terms of accessible court records. But query whether that will let them argue that the specific proportions of the print are functional. Dr. Land was a very detailed person when it came to designing things, so don’t be surprised if his notes reflect some intentional aesthetic choices.
The immorality of PLR’s demands?
PLR’s assertion of its rights is not unforeseeable, nor is there any indication that it is based on unethical thinking or behavior. First, the Smolokowski family has sunk probably tens of millions in Polaroid, a large sum in making the Impossible Project work, and getting the rights to resurrect SX-70 film – even in name. It has every incentive in the world to prevent what might be an assault on Polaroid’s historic core (and most recognizable) photographic product. If Fujifilm undercuts Impossible on price (which is almost a certainty), the only people who will buy Impossible film will be the ones who want both the SX-70 format and the particular camera that use the original style film.
Second, you might or might not wonder about why Fujifilm “just happened” to come out with a format clone of SX-70 if it isn’t to cash in on the hipster aesthetic. Is it a situation like in 2010: the Year we Make Contact (“All of these worlds are yours except Europa. Attempt no landings there”)? Or does every square format requires similar proportions? Is homage the most sincere form of flattery? Or is this a play on the back of a product that people remember even with a 10-year time-out under the Polaroid name? It could be all of these things – or none of them. That is what a court is going to decide in the Fujifilm case.
Finally, people should not harbor the illusion that Fujifilm is “committed” to film, operating a charity, or otherwise being some kind of noble stag attacked by the commoners. Like industry punching-bag Kodak, Fujifilm does things because they make money, and it has a pretty clear track record of stopping when those things does not. Because shareholders. Instax is supported because it makes money. Even according to Fuji’s own official histories, it was on its way out when a youth-oriented fad jumpstarted its failing heart. Other things (like pack film and many 35mm and 120 emulsions) were discontinued because they did not make money. If “SX-70” becomes another size in a portfolio of Instax formats that are in the meta sense disposable, it would be easy for Fujifilm to put Impossible out of business in year 1 (bricking every SX-70 and 600-series camera in existence) and blow away the format in year 3 because Wide (or whatever) sells better and the investment in camera and film cutting tooling is amortized. You may or not may feel comfortable putting all eggs in that green basket. Maybe you do if short-term price is your main concern.
My prediction is that this will end in a settlement with a small royalty or cross-licensing of Fujifilm technology to Polaroid Originals. Fujifilm will get to sell square Instax, and Polaroid Originals will sell a slightly better version of its product. It’s an easy prediction. Both parties have a lot to lose here, and it’s how many IP fights are resolved.
This originally ran on the old site — Ed.
It was on the ground floor of John King’s book store. All the light came from translucent windows on Howard Street. The Michigan Camera Exchange had the musty, mildewy and wonderful smell of any camera shop. Every possible surface was covered with fingerprinted and grimy fluorocoated lenses, blue plastic baskets of orphaned camera parts, and the bellowed diaspora of Rochester, Tokyo and Dresden. Looking around, you could see the odd outdated roll of Kodachrome II, the Canon Pellix camera body with the dusty pellicle mirror, the white telephoto zoom lens that fit a Konica Autoreflex-something-or-other. The man behind the counter never put down his cigarette as he read the newspaper.
When the world is gone, or when I am gone from the world, I will miss a great many things. It could be the smell of rain, the pink light of a northern sunset, or the intoxicating smell of perfume when I was sixteen years old. But what I might miss most is the smell of a roll of 120 film, pushing the paper tongue thumbwise into a plastic takeup spool, or the whirring of an old Rolleiflex.
We don’t have it now, the gelatin or the silver or the sucking sound of a metal shutter flattening reality into a still frame. There is no struggling in the dark with loading film into developing reels or the surprise of seeing that the negatives actually came out. We don’t have the magic anymore. For the would-be chemists and physicists, there was so much documentation, the disintegrating, mildewy Kodak data guides that showed curves in so much precision and told us what to do, at what temperature, and for how long: it was all method to tame the magic. Today you can find those booklets in the free bin at the front of King’s. But for all of the technique, all of the numbers and the graphs, there was always the faith of Tri-X Safety Film: you take the picture, we do the rest.
Seeing them decrepit and moth-eaten and being used as props at furniture stores, you might never understand why old cameras were so decorative and so conventional: all sandblasted chrome on brass, thin pebbled leatherette, hundreds of ornate numerical engravings, a sticker inside the film door advertising a film discontinued before you were born. A camera’s functional parts just as easily could have been housed in a plain wooden box. Maybe you can understand it this way: magic objects have a certain look about them. We know that Christ did not drink from any jewel-encrusted gold chalice – yet that is the form that is shown today.
We’ve replaced all of the ritual with cold, austere rationalism: histograms, curves, color balance. Photography has moved onto office devices, and it’s a plastic click and a RAW file. Even the machinery of the ritual has changed; there is nothing in the form of a digital camera to separate its shape from an Ipod or a cellular telephone: thermoplastic, rubberized finishes, flat silk-screening. It’s all functional.
But as they say in the transition, your sad devotion to that ancient film religion has not helped you conjure up the blown highlights or given you clairvoyance enough to divine the color temperature of daylight fluorescent tubes. Today we shoot, and we look at the little screen, and we shoot again. We fill computers with thousands of identical pictures taken at arm’s length with redeye-reduction flash. We revisit and re-level and fix the contrast and the color and sometimes the composition. But neither the process nor the result ever has the old magic: the twinkle in the eye of an old girlfriend or the firm confidence that the landscape was done right the first and only time.
Maybe in some afterlife, one where we’re having a cup of coffee with Weston or Strand, we’ll reach into that paper bag, crack open a box of Verichrome Pan, and remember that it’s f/11 and 1/250 of a second for bright or hazy sun, distinct shadows.