Friday Fantasies: On vanilla and fair use

“Vanilla” May Not Be What You think It Is--The next time a Kat reader takes a lick of what he or she believes is high quality vanilla ice

cream, be warned: “vanilla” may not exactly mean “vanilla”. As described on Bloomberg.com, there are fewer and fewer top quality vanilla beans to be had and, maybe even worse, what sometimes passes for vanilla are merely synthetic imitations of the real thing. The African island state of Madagascar is the leading producer of vanilla, producing about one-half of the world’s quantity. In response to declining prices for vanilla, farmers began to produce less of it, with an increase in the price received by them. The bad news is that this has led to an apparent decline the quality of vanilla, so much so that the Commerce Minister of Madagascar, Mr. Henri Rabesahala, declared—

“The branding of Madagascar vanilla in the international market is threatened.”

The rise in the price of vanilla beans is most acutely being felt in the US, where the enduring popularity of vanilla ice cream has helped make the US the largest aggregate purchaser of the product. As a result, according to Bloomberg.com and referring to Josephine Lochhead, president of Cook Flavoring, a U.S. processor of vanilla--

“Dairies and bakeries are balking at the increase, and some are switching from pure-vanilla extracts and powders to cheap alternatives, like synthetics, and products blended with lower-grade beans or those made with natural ingredients that mimic the flavor of vanilla.”

If these develops continue (and Madagascar is doing all it can to stop it), then Madagascar-sourced vanilla may suffer from impairment in the national branding of a key source of foreign currency. Moreover, will the increase in synthetic versions of the product impair the value of the product name “vanilla” with consumers? Kat readers should think about this the next time he or she orders vanilla ice cream at the local ice cream emporium.

What Kind of Legal Animal Is a Fair Use Policy?-- Kat friend Amalyah Keshet of the Israel Museum has brought to our attention the “Fair Use Policy” of the Robert Rauschenberg Foundation. As noted on the Foundation website, “The Robert Rauschenberg Foundation fosters the legacy of Rauschenberg’s life, work, and philosophy that art can change the world.” In a world where museum curators often struggle with what they can, and cannot do, with displayed works, the details of this Policy seem like a most welcome approach. The Policy recites--

“The Foundation recognizes and supports the use of images of Rauschenberg artworks, for which the Foundation owns the copyright, under the doctrine of fair use with the goal of fostering scholarship, disseminating knowledge, and enhancing educational initiatives. Possible uses include:

Analytical, interpretive, and/or creative writings/works;

Online (digitized) collections created for public scholarship;

Teaching including online coursework and study guides;

Print and digital newspapers, periodicals, and magazines;

Transformative use in artworks;

Social media.

Publishing Rauschenberg artwork under fair use does not require permission from or a license agreement with the Foundation. However, in order to ensure accuracy in color reproductions and citations, publishers are requested to contact the Foundation to obtain free authorized reproductions and citations. See Contact Us information below. Any use shall not suggest that the Foundation is sponsoring or is formally affiliated with the publisher.”

This Policy does raise a legal question: What exactly is its legal foundation? After all, fair use is either a defense or a privilege of a third party to make use of the protected work of another person without permission. If so, how can we characterize such a policy, if at all: license (hardly, it would seem), covenant not to sue, waiver, estoppel, reliance, or other? If any Kat readers can shed some light on this, please do.