8 M I N U T E R E A DHow Herman Miller HasDesigned Emp.docx

8 M I N U T E R E A D
How Herman Miller Has
Designed Employee
Loyalty
Those famous Herman Miller chairs are comfortable
—and apparently working for the company is too.
The average Herman Miller employee has 14 years of
service. Last year turnover was only 3.5 percent—and
even that was inflated by Herman Miller standards
due to a recent buyout. What makes people stick
around? In this Q&A, CEO Brian Walker explains the
company's unique approach to leadership, why
openness breeds loyalty, and why good stewardship
makes good business. He also explains how an
accountant wound up at the helm of a creative
design firm.
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K E R M I T P A T T I S O N 0 9 . 2 2 . 1 0 1 2 : 3 5 A M
Kermit
Pattison: Herman Miller often makes lists of
best employers. Why is it considered such
an employee-friendly place?
Brian Walker: People feel like they can bring

their whole person to Herman Miller. Combine
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that with a creative culture that always seems to
be trying to reinvent itself in almost anything
that it does. People find it's exciting from that
standpoint—it always feels like a place that's
becoming something.

What do you mean by employees bringing
their whole person to work?
Our ultimate goal is to create a better world
around you, whether you're an employee,
customer, dealer, or part of the neighborhood in
which we live. If you have great carpentry skills,
you can find yourself building a home for
Habitat for Humanity for two weeks. In that
case, you may actually be the leader telling
somebody from senior management to lift that
bag of cement. The next day, maybe you're
working back on the line or working in
engineering and that same person is now your
leader. We try very hard to let people bring their
passions to work.
What's an example of Herman Miller's
creative culture reinventing itself?
We often talk about our work in lean
manufacturing. Herman Miller wasn't really
thought of as great manufacturer 15 years ago.
We used many of the same design principles that
helped us create great products to rethink how
we actually ran the business day in and day out.
Today, manufacturing folks are as involved in
everyday problem solving as much as building
products. That keeps them excited, rejuvenated
and rethinking what they're going to do in the
future.
How does Herman Miller think differently

about its human assets compared to
mainstream companies?
All of our people have gifts and talents and are
capable of doing more than their job
classification. Our constant drive is to figure out
how to mine that hidden talent and capability so
we can use it to its fullest and so our people get
the greatest enjoyment out of what they do.
Does that ethos go back to the earliest days
of the company?
Absolutely. That really started with founder D.J.
De Pree. Henry Ford said, "Bring us your hands
and you can leave everything else at home." D.J.
rejected that idea and said completely the
opposite: "I want all of you here. I want the
whole person." There's an old story in our
history about a millwright who died. D.J. went to
visit his widow and she began reading some
poetry. D.J. asked, "Wow, this is beautiful
poetry, whose was it?" She said it was her
husband's, the millwright. D.J. said from that
day on he completely changed his view of labor.
He believed there were always things people did
inside and outside of work and we often didn't
see all their talents. If we could recognize and
grab all those talents, we would all go much
further.
How do you justify that approach from a
business point of view?

To me, it's really simple. If I can have 5,000 or
6,000 people who are passionate about what
they do, using every bit of their capabilities in
solving problems and finding solutions to our
customers' problems, I'm going to be much
better off than if I leave that to 10 percent of that
population who tell the other people what to do.
It's like a sports team: you can have one or two
guys who play well, but if you can get 50 guys on
a team all playing at a very high level, you're very
tough to beat. That's always been our
philosophy. We're not as much about superstars
as having a collective of 6,000 people who are
very passionate about what they do and trying to
bring all their gifts and talents to it.
How does the company develop leaders and
managers?
Folks often get an opportunity to lead in varied
situations and on a regular basis. We're big
believers in putting together teams, often ad hoc
teams, to solve problems. Because of that, lots of
people get an opportunity to lead throughout
their career. We're very willing to move folks
around between departments and not believe
that your education and training will ultimately
determine the spot you lead from. We also are
open to pulling together ad hoc teams and
watching leaders arise from within those ad hoc
teams.

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You're a financial guy by training. How did
an accountant wind up leading a creative
design company?
I always had a passion for learning. I was
fortunate, especially early in my career that I
worked for some of our smaller business units
and got connected with leaders who were willing
to do what Herman Miller is known for, which is
giving me a lot of opportunities to get involved in
areas beyond my functional job title. That
nurtured my personal passion for learning.
I don't believe that my job is to lead design at
Herman Miller. My job is to make sure we have
great design leaders, continue to listen and try to
learn from them along the way. My job is not to
be the creative guy; my job is to create a culture
that allows and promotes creativity. When you're
a business based on innovation and creativity,
you're going to have to take risks. It's not all
going to work. You have to be able to tell people
great job on things that didn't work.
The Herman Miller design process is known
for deliberately creating tension. How do
you mange it?

First of all, we get the majority of our design
inspiration from out external creative network.
Our job is to define a problem that needs to be
solved, canvass our creative network for ideas on
how to solve that and surround the best idea
with people from Herman Miller who can help
bring that idea to life. Our job in some ways is
like being a conductor for a jazz orchestra. How
do you bring all of those individual players
together so you create music and not noise?
The tension often comes when you put together a
cross functional team that includes
manufacturing people, finance people, research
folks, ergonomists, marketing and salespeople.
The manufacturing guys want something they
know they can make easily and fits their
processes. The salespeople want what their
customers have been asking for. The tension
comes from finding the right balance, being
willing to follow those creative leaps to the new
place and convincing the organization that that
it's worth the risk and effort to go there.
It takes humility. You have to be willing to follow
someone on the outside who is your partner.
Most of the folks in our creative network would
also say Herman Miller often makes their
original ideas better than what they originally
brought to us.
Herman Miller has gone through some

painful periods of economic contraction in
recent years. What did that experience teach
you about leadership?
There have been a couple of those,
unfortunately. In 2001, we faced a dramatic drop
in the business and we learned that the more
open and vulnerable we got as leaders, the more
people followed where we needed them to go.
There's an old saying a Herman Miller: the first
thing you have to do make sure you tell folks
thank you. The second thing is you have to tell
them what day it is. Then you have to give them
a picture of where you're going so they have hope
and do the work necessary to get to the other
side. You will often be surprised by the resiliency
and the ability of people to deal with that.
When the global economy took the recent set of
hits, we felt it in fairly big way. We saw the
emerging signs of trouble in housing and
banking and actually were able to talk earlier,
even though, to be frank, it caused us some
consternation because the economy hadn't fallen
yet. The entire management team stood up and
said, "Look, we understand it's going to be
difficult for everyone. We probably can't do all of
this with employment reductions." We did short
work weeks, we took salary reductions at all
levels of the company and we did all kinds of
things that were rather unusual. But I think they
saw leadership doing those things first and that
gave people confidence that we had plan of how

to get to the other side.
Herman Miller is known for initiatives like
social responsibility and being green. How
do you think about leadership beyond the
walls of your company?
To me, it's about attracting great people. Great
people want to work for organizations that make
a difference. A lot of what we do is put together
things that enable our folks to feel like we're
touching their soul, that they're creating
something that will live beyond them, and has a
purpose beyond simply trading dollars and
cents.
We strive to be a leader in the sense that people
look to us as a company who leads by doing well
and by doing what's right. We don't necessarily
try to lead in social responsibility; I don't think
D.J. De Pree knew what green was in 1953. On
the other hand, he believed that if he did the
right thing it would stand the test of time and
ultimately create a great business. That's really
the underpinning of Herman Miller.
Ultimately, our responsibility is to make sure
this business is here 100 years from now. The
underpinning of almost everything Herman
Miller thinks about is stewardship—stewardship
of the environment, of people, of communities,
and stewardship in the broader society. We
believe if we stay on that course, ultimately we

will find great things and be a good business.
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8 M I N U T E R E A D M O S T C R E A T I V E P E O P L
E
The Billion-Dollar
Copyright Lawsuit That
Could Legalize A New
Kind Of Scam
If a court rules that photographer Carol Highsmith
must pay to publish her own work, it sets a scary
precedent for public-domain art.
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https://www.fastcompany.com/section/most-creative-people
Carol Highsmith's Inner Tubing (2014)
[Photo: Library of Congress, Carol M. Highsmith
Library of Congress, Carol M. Highsmith
Library of Congress, Carol M. HighsmithLibrary of Congress,

Carol M. Highsmith]
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G L E N N F L E I S H M A N 1 0 . 0 4 . 1 6 5 : 0 0 A M
Could a copyright lawsuit involving a renowned
photographer of American iconography enable a
new kind of scam in which ne'er-do-wells send
out threatening letters demanding licensing fees
for public-domain works—and that those actions
are both legal and unstoppable? It could, in the
form of an unintentional side effect that has
cropped up at the edges of copyright law.
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3/in/photolist-cwf1Hu-dLYc5S-dUyBqE-dUyBwQ-dLSDcB-
hE1UhV-iDQXXH-dLYcB1-7QeoTp-cweZbd-cweZrj-dUyBgY-
cwf1zQ-dUsZZB-iDTw3Z-cweZi9-dUyBzJ-eXsdNE-iDU8mA-
cweYTE-cwf14y-iDRWUr-C2vtot-dLYc8S-dUt13r-cweYrC-
cweYKJ-cweZzb-cweXT7-iDQWx8-cweY1U-cweXKN-cwf1im-
cweZHo-cweYAj-cweYas-cweZ2w-cwexkw-cwf1d9-cwf1RG-

cweZRf-dLYce5-dUyBcE-iDQWVc-eXsdDW-GGzuPx-
CxKFD8-CsJV8a-qRh6E2-vbD22M
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lawsuit-that-could-legalize-a-new-kind-of-
&subject=The%20Billion-
The case involves photographer Carol
Highsmith, whose work you'd recognize even if
you've never heard the name. Sometimes called
"America's photographer," she's taken iconic
photos of scenes from the White House to the
saguaros in the Sonoran Desert to oversized

roadside attractions. She was surprised to
receive a letter in December 2015 from a
company called License Compliance Services on
behalf of the photo-licensing agency Alamy
demanding that she pay a licensing fee for the
use, on her foundation's website, of one of her
own works.
The surprise was twofold: Not just that it was her
photograph, but also that, since she'd turned
over her photographs for free use by the public
years before, to her mind, nobody could charge
for them, much less insist on a license.
Highsmith had dedicated her work to the public
starting in 1988, which was formalized through
an agreement signed in 1991 with the Library of
Congress (LOC). In the intervening years, she
has supplemented the initial offer with
additional gifts.
Her shock wore off after she spoke with a
representative of the firm attempting to collect
payment—and it turned into ire. So she called
her attorneys and filed suit on July 25 of this
year, demanding statutory copyright damages
from several companies that list her work for
resale or issue demand letters for rights
payments. This includes a claim against Getty
Images that could go well over a billion dollars,
since the agency offers 18,755 of her photos for
licensing. Highsmith's suit seeks substantial but
far lower sums against Alamy and the licensing
contractors. (An amended filing from August 17

throws in more: Allegations of "false advertising
and unfair competition" under federal and New
York state law, which involve additional
potential damages, though not on the scale of the
alleged copyright violations.)
But can Highsmith sue for copyright damages if
she donated her work to the LOC? The suit
largely hinges on the ineffability of the public
domain.
And should Highsmith be unable to sue
effectively, it might open the door to much
broader, more illicit attempts to demand fees—
not by Getty Images and other legitimate stock-
photo firms, but by those who know they have no
right to collect them.
C A N Y O U C O N T R O L W H AT Y O U S A I D Y O
U D O N ' T
O W N ?
In her 1991 LOC agreement, Highsmith wrote: "I
hereby dedicate to the public all rights, including
copyrights throughout the world, that I possess
in this collection."
Jennifer Jenkins, the director of the Center for
the Study of the Public Domain at the Duke
University School of Law, says that there's no
specific statutory language that lets a copyright
holder define something as free of copyright. The
general convention, she says, is that there has to
be "an intent to abandon copyright and an overt
act of intent to abandon copyright." Jenkins says

that the initial portion of Highsmith's contract
clearly encompass both.
A Carol Highsmith photo of Little Round Top in Gettysburg,
Pennsylvania. [Photo: Library Of Congress, Carol M. Highsmith
Library Of Congress, Carol M. Highsmith
Library Of Congress, Carol M. HighsmithLibrary Of Congress,
Carol M. Highsmith]
/in/photolist-cwf1Hu-dLYc5S-dUyBqE-dUyBwQ-dLSDcB-

If so, it's impossible for her to prove
infringement, because "there can only be
infringement if there's copyright," Jenkins notes.
The Library of Congress even notes on a rights
and restrictions page for the Highsmith
collection that "Carol M. Highsmith's
photographs are in the public domain," which
would back that interpretation.
"It sounds to me like she successfully dedicated
her copyright to the public, in which case she has
nothing left as leverage," says Robert Brauneis, a
copyright and constitutional expert and
professor at George Washington University Law
School, into
contributed
significantly to that song finally being deemed
effectively in the public domain. (Brauneis is
currently consulting on suits filed by the "Happy
Birthday" plaintiffs' attorneys to have two other
classic songs declared free of copyright.)
In a motion to dismiss filed September 6, Getty
Images noted, "Plaintiffs’ four claims against
Getty Images . . . are all an attempt to regain
some measure of legal protection for the
Highsmith Photos that Plaintiff Highsmith
relinquished years ago." (When asked to
comment, Highsmith referred Fast Company to
her attorney, who didn't respond to questions
about the suit. Getty declined to comment due to
active litigation.)

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the ownership
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the ownership
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the ownershipthe ownership
of "Happy Birthday to You"
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624
https://www.fastcompany.com/3051543/the-tangled-history-and-
mysterious-legality-of-happy-birthday
Jenkins says, "It seems like Getty did something
wrong. They took photos that are not theirs and
put their watermark on them and charged people
for them . . . [but] it's not illegal to charge people

for public domain works." Getty cited a number
of examples, including public-domain books sold
on Amazon.com.
However, the public domain is a slippery place.
It's more readily defined by an absence: work
that no longer has copyright protection. Work
that has fallen into the public domain includes
all published items in the U.S. up to 1922, and an
increasingly smaller amount of work over the
next 64 years. Almost nothing since has entered
the public domain without intent. Everything
else requires research.
The U.S. Copyright Office, a division of the LOC,
won't provide any guidance to those asking
whether a given book, photograph, movie, or
other work remains under copyright, be it
donated or lapsed. It doesn't register donated
works, either, so there's no central registry for
work like Highsmith's. The Library of Congress
specifically declined to comment about
Highsmith's copyright, citing pending litigation.
It might seem that this situation is crystal clear,
since Highsmith signed an agreement that she
appended to her lawsuit. But after the seemingly
unambiguous statement that she signed in 1991
to donate rights to her photos, things get murky
in that document. Jenkins notes that the public
domain dedication "could plausibly be
contradicted by other parts of instrument of gift
that placed restrictions that indicate she still is

retaining other rights."
And that's what Highsmith's amended lawsuit
argues: She never intended to abandon her
copyright at all, because following the dedication
noted in her 1991 contract, she also required
attribution:
Highsmith added in her amended suit in August
that she didn't have the benefit of counsel while
writing her 1991 agreement, implying that it's
not legally precise enough to constitute a
dedication. Jenkin says, "There's going to be a
lot of room for interesting arguments."
The Library will request, through its standard
procedures, that when material in the Archive
is reproduced by those who have obtained
reproductions credit be given as follows: The
Archive.
I H AV E A P I CT U R E O F A B R I D G E TO S E L L
Y O U
Assuming that the judge in the case doesn't
agree with Getty Images that the Highsmith suit
should be dismissed, the court will ostensibly
decide whether she retains any rights before this
even reaches a jury stage. If so, the case proceeds
in a fairly straightforward way. For the billion-
dollar-and-change alleged misuse of copyright
that Highsmith levies, she has to prove that the
photo agencies not only falsified the copyright
notice for her images (by labeling some of them

as oddly as "Photo by Carol M.
Highsmith/Buyenlarge/Getty Images" or
omitting her name altogether), but also that they
did so with the intent to infringe on her rights,
rather than by lack of attention to detail. In the
other non-copyright allegations that have lower
damages attached, there's less need to prove
intent.
But here's where things once again get tricky. A
A Carol Highsmith photo of the Golden Gate Bridge, 2012.
[Photo:
Carol M. Highsmith]

court decision could spawn a new email and
snail-mail scam that would be tacitly legal and
impossible to fight.
If a court finds Highsmith did dedicate the work
into the public domain and that because she has
no ownership of the work, she has no grounds to
pursue action for "false advertising and unfair
competition," "deceptive acts or practices," and
so on, as alleged in the suit, then anyone can
send out demand letters for licensing fees for any
public-domain work without any basis in reality.
For instance, a publishing house could receive a
licensing-fee demand for printing an edition of
Shakespeare's Macbeth or, more insidiously
plausible, one of the 46 Sherlock Holmes short
stories that have lapsed into the public domain
in the United States.
Someone receiving such a letter would have no
way to know whether or not it could be safely
ignored. And if the recipient researched the
copyright and hired an attorney, there might be
no way to have a lawsuit heard, should the
Highsmith case set a precedent.

Brauneis says that if a court finds copyright law
is paramount, and that without a violation under
a section of the Copyright Act, "there's no other
cause of action that can be brought, that
essentially declares anybody can go into the
business of selling the Brooklyn Bridge to
people."
A victim of such seeming fraud would have no
recourse because without an owner to pursue
action under copyright law, there wouldn't be
any other basis. Brauneis finds this potential
"morally abhorrent," but sees it as an
unfortunate possible outcome. He notes, "All
those emails that come from Nigeria about cash
someone had discovered, would all be about:
You need to license from me."
This case received a lot of attention at its initial
filing because of Highsmith's reputation and her
stirring photos of U.S. symbols. Both Jenkins
and Brauneis agree that it's not the cold legal
facts that have provoked so much public
discussion and outrage. "It makes a case
emotionally," Jenkins says. Furthering that idea,
Brauneis notes, "It generates sympathy to say, 'I
was trying to give this to the public, and you
greedy people reprofitized.'"
Highsmith certainly didn't intend this potential
outcome, and a savvy judge should be able to
avoid creating a path for enabling scams. But it
reveals the amorphous borders of the public

domain: An inexhaustible commons that could
have fraudulent toll booths erected all around it.
R E L AT E D V I D E O : F R O M A P P L E TO Z A R A ,
D E S I G N E R S
L I K E TO S T E A L . S O W H AT ?
� � � +
8 M I N U T E R E A D M O S T C R E A T I V E P E O P L
E
The Billion-Dollar
Copyright Lawsuit That
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Could Legalize A New
Kind Of Scam
Carol Highsmith's Inner Tubing (2014) [Photo: Library of
Congress, Carol
Library of Congress, Carol

Library of Congress, CarolLibrary of Congress, Carol
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. Highsmith
M. HighsmithM. Highsmith]
G L E N N F L E I S H M A N 1 0 . 0 4 . 1 6 5 : 0 0 A M
Could a copyright lawsuit involving a renowned
photographer of American iconography enable a

� �
� +
If a court rules that photographer Carol Highsmith
must pay to publish her own work, it sets a scary
precedent for public-domain art.
https://www.fastcompany.com/user/glenn-fleishman

new kind of scam in which ne'er-do-wells send
out threatening letters demanding licensing fees
for public-domain works—and that those actions
are both legal and unstoppable? It could, in the
form of an unintentional side effect that has
cropped up at the edges of copyright law.
The case involves photographer Carol
Highsmith, whose work you'd recognize even if
you've never heard the name. Sometimes called
"America's photographer," she's taken iconic
photos of scenes from the White House to the
saguaros in the Sonoran Desert to oversized
roadside attractions. She was surprised to
receive a letter in December 2015 from a
company called License Compliance Services on
behalf of the photo-licensing agency Alamy
demanding that she pay a licensing fee for the
use, on her foundation's website, of one of her
own works.
The surprise was twofold: Not just that it was her
photograph, but also that, since she'd turned
over her photographs for free use by the public
years before, to her mind, nobody could charge
for them, much less insist on a license.

Highsmith had dedicated her work to the public
starting in 1988, which was formalized through
an agreement signed in 1991 with the Library of
Congress (LOC). In the intervening years, she
has supplemented the initial offer with
additional gifts.
Her shock wore off after she spoke with a
representative of the firm attempting to collect
payment—and it turned into ire. So she called
her attorneys and filed suit on July 25 of this
year, demanding statutory copyright damages
from several companies that list her work for
resale or issue demand letters for rights
payments. This includes a claim against Getty
Images that could go well over a billion dollars,
since the agency offers 18,755 of her photos for
licensing. Highsmith's suit seeks substantial but
far lower sums against Alamy and the licensing
contractors. (An amended filing from August 17
throws in more: Allegations of "false advertising
and unfair competition" under federal and New
York state law, which involve additional
potential damages, though not on the scale of the
alleged copyright violations.)
But can Highsmith sue for copyright damages if
she donated her work to the LOC? The suit
largely hinges on the ineffability of the public
domain.
And should Highsmith be unable to sue
effectively, it might open the door to much
broader, more illicit attempts to demand fees—

not by Getty Images and other legitimate stock-
photo firms, but by those who know they have no
right to collect them.
C A N Y O U C O N T R O L W H AT Y O U S A I D Y O
U D O N ' T
O W N ?
In her 1991 LOC agreement, Highsmith wrote: "I
hereby dedicate to the public all rights, including
copyrights throughout the world, that I possess
in this collection."
Jennifer Jenkins, the director of the Center for
the Study of the Public Domain at the Duke
University School of Law, says that there's no
specific statutory language that lets a copyright
holder define something as free of copyright. The
general convention, she says, is that there has to
be "an intent to abandon copyright and an overt
act of intent to abandon copyright." Jenkins says
that the initial portion of Highsmith's contract
clearly encompass both.
A Carol Highsmith photo of Little Round Top in Gettysburg,
Pennsylvania. [Photo: Library Of Congress, Carol M. Highsmith

Carol M. Highsmith]
/in/photolist-cwf1Hu-dLYc5S-dUyBqE-dUyBwQ-dLSDcB-
If so, it's impossible for her to prove
infringement, because "there can only be
infringement if there's copyright," Jenkins notes.
The Library of Congress even notes on a rights
and restrictions page for the Highsmith
collection that "Carol M. Highsmith's
photographs are in the public domain," which
would back that interpretation.
"It sounds to me like she successfully dedicated
her copyright to the public, in which case she has
nothing left as leverage," says Robert Brauneis, a

copyright and constitutional expert and
professor at George Washington University Law
School, into
contributed
significantly to that song finally being deemed
effectively in the public domain. (Brauneis is
currently consulting on suits filed by the "Happy
Birthday" plaintiffs' attorneys to have two other
classic songs declared free of copyright.)
In a motion to dismiss filed September 6, Getty
Images noted, "Plaintiffs’ four claims against
Getty Images . . . are all an attempt to regain
some measure of legal protection for the
Highsmith Photos that Plaintiff Highsmith
relinquished years ago." (When asked to
comment, Highsmith referred Fast Company to
her attorney, who didn't respond to questions
about the suit. Getty declined to comment due to
active litigation.)
whose 2010 research
whose 2010 research
whose 2010 research
whose 2010 research
whose 2010 research
whose 2010 research
whose 2010 research

whose 2010 research
whose 2010 research
whose 2010 research
whose 2010 researchwhose 2010 research the ownership
the ownership
the ownership
the ownership
the ownership
the ownership
the ownership
the ownership
the ownership
the ownership
the ownershipthe ownership

of "Happy Birthday to You"of "Happy Birthday to You"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624
https://www.fastcompany.com/3051543/the-tangled-history-and-
mysterious-legality-of-happy-birthday
Jenkins says, "It seems like Getty did something
wrong. They took photos that are not theirs and
put their watermark on them and charged people
for them . . . [but] it's not illegal to charge people
for public domain works." Getty cited a number
of examples, including public-domain books sold
on Amazon.com.
However, the public domain is a slippery place.
It's more readily defined by an absence: work
that no longer has copyright protection. Work
that has fallen into the public domain includes
all published items in the U.S. up to 1922, and an
increasingly smaller amount of work over the
next 64 years. Almost nothing since has entered
the public domain without intent. Everything
else requires research.

The U.S. Copyright Office, a division of the LOC,
won't provide any guidance to those asking
whether a given book, photograph, movie, or
other work remains under copyright, be it
donated or lapsed. It doesn't register donated
works, either, so there's no central registry for
work like Highsmith's. The Library of Congress
specifically declined to comment about
Highsmith's copyright, citing pending litigation.
It might seem that this situation is crystal clear,
since Highsmith signed an agreement that she
appended to her lawsuit. But after the seemingly
unambiguous statement that she signed in 1991
to donate rights to her photos, things get murky
in that document. Jenkins notes that the public
domain dedication "could plausibly be
contradicted by other parts of instrument of gift
that placed restrictions that indicate she still is
retaining other rights."
And that's what Highsmith's amended lawsuit
argues: She never intended to abandon her
copyright at all, because following the dedication
noted in her 1991 contract, she also required
attribution:
Highsmith added in her amended suit in August
that she didn't have the benefit of counsel while
writing her 1991 agreement, implying that it's
not legally precise enough to constitute a
dedication. Jenkin says, "There's going to be a
lot of room for interesting arguments."

The Library will request, through its standard
procedures, that when material in the Archive
is reproduced by those who have obtained
reproductions credit be given as follows: The
Archive.
I H AV E A P I CT U R E O F A B R I D G E TO S E L L
Y O U
Assuming that the judge in the case doesn't
agree with Getty Images that the Highsmith suit
should be dismissed, the court will ostensibly
decide whether she retains any rights before this
even reaches a jury stage. If so, the case proceeds
in a fairly straightforward way. For the billion-
dollar-and-change alleged misuse of copyright
that Highsmith levies, she has to prove that the
photo agencies not only falsified the copyright
notice for her images (by labeling some of them
as oddly as "Photo by Carol M.
Highsmith/Buyenlarge/Getty Images" or
omitting her name altogether), but also that they
did so with the intent to infringe on her rights,
rather than by lack of attention to detail. In the
other non-copyright allegations that have lower
damages attached, there's less need to prove
intent.
But here's where things once again get tricky. A
A Carol Highsmith photo of the Golden Gate Bridge, 2012.
[Photo:

Carol M. Highsmith]
court decision could spawn a new email and
snail-mail scam that would be tacitly legal and
impossible to fight.

If a court finds Highsmith did dedicate the work
into the public domain and that because she has
no ownership of the work, she has no grounds to
pursue action for "false advertising and unfair
competition," "deceptive acts or practices," and
so on, as alleged in the suit, then anyone can
send out demand letters for licensing fees for any
public-domain work without any basis in reality.
For instance, a publishing house could receive a
licensing-fee demand for printing an edition of
Shakespeare's Macbeth or, more insidiously
plausible, one of the 46 Sherlock Holmes short
stories that have lapsed into the public domain
in the United States.
Someone receiving such a letter would have no
way to know whether or not it could be safely
ignored. And if the recipient researched the
copyright and hired an attorney, there might be
no way to have a lawsuit heard, should the
Highsmith case set a precedent.
Brauneis says that if a court finds copyright law
is paramount, and that without a violation under
a section of the Copyright Act, "there's no other
cause of action that can be brought, that
essentially declares anybody can go into the
business of selling the Brooklyn Bridge to
people."
A victim of such seeming fraud would have no
recourse because without an owner to pursue
action under copyright law, there wouldn't be

any other basis. Brauneis finds this potential
"morally abhorrent," but sees it as an
unfortunate possible outcome. He notes, "All
those emails that come from Nigeria about cash
someone had discovered, would all be about:
You need to license from me."
This case received a lot of attention at its initial
filing because of Highsmith's reputation and her
stirring photos of U.S. symbols. Both Jenkins
and Brauneis agree that it's not the cold legal
facts that have provoked so much public
discussion and outrage. "It makes a case
emotionally," Jenkins says. Furthering that idea,
Brauneis notes, "It generates sympathy to say, 'I
was trying to give this to the public, and you
greedy people reprofitized.'"
Highsmith certainly didn't intend this potential
outcome, and a savvy judge should be able to
avoid creating a path for enabling scams. But it
reveals the amorphous borders of the public
domain: An inexhaustible commons that could
have fraudulent toll booths erected all around it.
R E L AT E D V I D E O : F R O M A P P L E TO Z A R A ,
D E S I G N E R S
L I K E TO S T E A L . S O W H AT ?
From Apple To Zara, Designers Like To Steal. So What?
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Small Manufacturing Team Problems
You are in charge of a five person operation responsible for
assembling personal computers for
a small computer manufacturing firm located in the southeast.
As the assembly unit supervisor,
your production goals include assembling 80 personal
computers per day and ensuring that 95
percent of these computers pass the operational inspection of
the quality assurance unit.
To meet these goals, you coordinate and plan the work of your
five subordinates and ensure
they have the training and materials needed to get the job done.
To maximize efficiency, you
have organized the tasks performed by the group members along
functional lines.
Fred is responsible for assembling all of the hard drives for the
unit. Fred is a retired Army
sergeant with 16 years of electronics experience, is a hard

worker, and has been assembling
hard drives for six years.
Bill assembles the CD ROM and floppy drives. Bill recently
completed an electronics degree
from a local technical school and this is his first full time job.
He is 20 years old and has been
working in the assembly unit for a year.
Sherry assembles the mother boards. She is a single mother with
two children and will be
completing her bachelor's degree in electrical engineering in
three months. She has been with
the assembly unit for four years and has been an outstanding
employee.
Julie does the final assembly, and has only been with the
assembly unit for six months. Julie is
22 years old and her sister is married to the owner of the
company.
Morgan has five years of experience working in the company's
parts supply section. He
attended the company's operational inspection course and
transferred over to your unit six
months ago. Although he has no electronics experience beyond
the operational inspection
course, he performs all of the unit's final operational
inspections before the computers are
shipped to the quality assurance unit.
Partly through your training and coordination skills, the
assembly unit has been able to meet all
production and quality goals set over the past year. However,
given the events of the past few
weeks, you are uncertain whether you will be able to meet this

quarter's production goals.
Over the past several weeks you have noticed your work group
has only been assembling an
average of 62 computers per day, and 15 percent of the
computers assembled have been
returned to the assembly unit for failing to meet quality
assurance standards.
Julie has privately complained to you that she cannot complete
the final assembly of the
computers because Fred has been doing a very slow and shoddy
job assembling the hard drives.
When you confront Fred with this problem, he states he is
having a difficult time getting
reliable parts from the supply department. Some of the parts he
receives are out of specs, and
rather than waiting four hours for supply to bring new parts, he
repairs the parts himself before
using them in the hard drives. He also states the production
problem has more to do with Julie
doing very little but talking to Morgan for the first two hours
every morning and then working
hard for the next six to see if she can make the unit's daily
production goal. Fred also stated
Julie seemed very bored with her job and she may have resorted
to this work tactic to make her
job more challenging.
You have also noticed Morgan has been coming to work late
and Bill has been taking longer

lunch hours than permitted over the past four weeks. When you
confront Morgan and Bill
about their tardiness, Morgan stated he and Bill always stay late
to make up their time, and
coming to work late was not a big deal in the supply department
and shouldn't be one for the
assembly unit.
Additionally, everyone in the work unit seems to be fairly angry
because you gave Morgan
several days off to attend his high school class reunion (even
though he spends the first two
hours talking to Julie, comes to work late, and the unit is not
meeting production goals) and
because the owner recently singled out Julie for her outstanding
performance by giving her a
five percent pay hike for helping the assembly unit meet its
performance goals for the first half
of the year.
You have noticed the level of cohesion and communication in
the work group has taken a
substantial drop recently. Morgan, Julie, and Bill seem to be
talking to each other but not to
anyone else. Fred seems to be keeping to himself more than
usual, and Sherry has told you
she wants to leave the company because of all the infighting in
the assembly unit. You know
Sherry is serious about leaving the unit and has been
interviewing with one of your competitors
across town.
The owner has become concerned with both the performance
and the morale of your work
unit, and you are to meet with him this afternoon to discuss
these problems. You know he is a

man of action and will want to see a specific plan for improving
both the unit's morale and
performance. Moreover, because the firm operates on a low
profit margin, you know if you do
not get results in the next few months then you may be looking
for another job.
What will you do?
Write your proposals in a formal memorandum to your owner.

8 M I N U T E R E A DHow Herman Miller HasDesigned Emp.docx

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