blood on the sea

“Truth has undoubtedly proved stranger than fiction on occasion, but, as a correspondent wrote to The Times in 1844, ‘she has certainly never committed so outrageous a plagiarism as in the present case.’

The case was that of Captain Thomas Dudley, Edwin Stephens and Edmund Brooks, of the yawl Mignonette, on trial for their lives. Their crime – murder and cannibalism. Sensational enough in Victorian England, but fantasy was added to the trial when it was discovered that the victim of the horrifying act, the cabin boy of the Mignonette, bore the same name as that of an Edgar Allan Poe character, who was also killed and eaten in similar circumstances and about whom Captain Dudley had been reading during the ill-fated voyage.

Dudley, Stephens, Brooks and the cabin boy, Richard Parker, were at the mercy of a scorching sun and freezing night for more than three weeks – with virtually no food or water. Their story is told with a penetrating psychological insight which brings their agony immediately to life – agony both of mind and body. Captain Dudley, said those who knew him, was a God-fearing man, ‘a man of exemplary character, able to tackle any job requiring skilled seamanship, courageous and with real power of command.’ He was prepared to draw lots and risk sacrificing himself to save his starving companions; he openly admitted the killing and accepted full responsibility for it, and his action must promote disturbing reflections in the minds of everyone capable of self analysis.

This remarkable story does not end with the trial of Captain Dudley and his crew. It continues with another of life’s coincidences, played out among the islands of the Great Barrier Reef with a romance that evokes all the imagery of a Conrad novel – ant that master would surely find a wealth of material here.”

(jacket copy for Donald McCormick’s Blood on the Sea: The Terrible Story of the Yawl “Mignonette”, 1962.)


“A topsail bellied out by the wind is not a catenoid surface, but in vertical section is everywhere a catenary curve; and Dürer shows beautiful catenary curves in the wrinkles under an old man’s eyes. A simple experiment is to invert a small funnel in a large one, wet them with soap solution, and draw them apart; the film which develops between them is a catenoid surface, set perpendicularly to the two funnels. On this and other geometrical illustrations of the fact that a soap-film sets itself at right angles to a solid boundary, see an elegant paper by Mary E. Sinclair, in Annals of Mathematics, 8 (1907).”

(D’Arcy Wentworth Thompson, On Growth and Form, p. 57, note 1.)

3. whether the commercial was “evidently done in jest”

Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E. B. White has remarked, “Humor can be dissected, as a frog can, but the thing dies in the process. . . .” The commercial is the embodiment of what defendant appropriately characterizes as “zany humor.”

First, the commercial suggests, as commercials often do, that use of the advertised product will transform what, for most youth, can be a fairly routine and ordinary experience. The military tattoo and stirring martial music, as well as the use of subtitles in a Courier font that scroll terse messages across the screen, such as “MONDAY 7:58 AM,” evoke military and espionage thrillers. The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. The commercial in this case thus makes the exaggerated claims similar to those of many television advertisements: that by consuming the featured clothing, car, beer, or potato chips, one will become attractive, stylish, desirable, and admired by all. A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact, see, e.g., Hubbard v. General Motors Corp., 95 Civ. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. May 22, 1996) (advertisement describing automobile as “Like a Rock,” was mere puffery, not a warranty of quality), . . . and refrain from interpreting the promises of the commercial as being literally true.

Second, the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents’ car, much less the prize aircraft of the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the teenager spends his precious preflight minutes preening. The youth’s concern for his coiffure appears to extend to his flying without a helmet. Finally, the teenager’s comment that flying a Harrier Jet to school “sure beats the bus” evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation.

Third, the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager’s schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher’s clothes, literally defrocking an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student’s fighter jet, or condone the disruption the jet’s use would cause.

Fourth, the primary mission of a Harrier Jet, according to the United States Marine Corps, is to “attack and destroy surface targets under day and night visual conditions.” United States Marine Corps, Factfile: AV-8B Harrier II (last modified Dec. 5, 1995) . Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991. See id. The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. See id. As one news report has noted, “Fully loaded, the Harrier can float like a butterfly and sting like a bee–albeit a roaring 14-ton butterfly and a bee with 9,200 pounds of bombs and missiles.” Jerry Allegood, Marines Rely on Harrier Jet, Despite Critics, News & Observer (Raleigh), Nov. 4, 1990, at C1. In light of the Harrier Jet’s well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and offensive and defensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired “in a form that eliminates [its] potential for military use.”

Fifth, the number of Pepsi Points the commercial mentions as required to “purchase” the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years–an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.

Plaintiff argues that a reasonable, objective person would have understood the commercial to make a serious offer of a Harrier Jet because there was “absolutely no distinction in the manner” in which the items in the commercial were presented. Plaintiff also relies upon a press release highlighting the promotional campaign, issued by defendant, in which “[n]o mention is made by [defendant] of humor, or anything of the sort.” These arguments suggest merely that the humor of the promotional campaign was tongue in cheek. Humor is not limited to what Justice Cardozo called “[t]he rough and boisterous joke . . . [that] evokes its own guffaws.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). In light of the obvious absurdity of the commercial, the Court rejects plaintiff’s argument that the commercial was not clearly in jest. . . .

For the reasons stated above, the Court grants defendant’s motion for summary judgment.

(from Leonard vs. Pepsico.)

note 7

“Given these parameters, both printed reproductions and ‘fakes’ (those made specifically to pique this now-well-known artist’s interest) are rigorously excluded from the collection. In 1997 Francis Alÿs sent some sixty Fabiolas to be shown in the second biennial of Saaremaa, Estonia. When these works were shipped back to him, he discovered that almost thirty had been replaced with substitutes, crude versions made to simulate his originals, which had mysteriously disappeared. Wishing to conceal the fact that they had lost or otherwise appropriated his works, the Estonian organizers seemingly hoped to fool him into believing that the substitutes – the copies they commissioned of his copies – were actually works that he had collected. This subgroup of twenty-six examples, identified in the collection catalogue as A through Z, are notable for an acidulous orange-red in the palette and a cursory, loose handling. More recently, Alÿs discovered than an acquaintance with a certain technical proficiency had been making versions that he presented to Alÿs not as examples of his own devising but as chance discoveries made when visiting flea markets and junk stores. Alÿs immediately removed them from the collection. Among objets d’art, such as jewelry and dishes, he distinguishes those commercially manufactured from those that require the intervention of an individual hand, such as enameled objects.”

(Lynne Cooke, “Francis Alÿs: instigator/investigator”, note 7, p. 63 in Francis Alÿs, Fabiola: An Investigation.)

lost originals

“We have become inured to hearing the echoes of a theory popularized by Walter Benjamin, in respect of which the work of art loses its ‘aura’ in an age of ‘mechanical’ (or, more prescisely, ‘technical’) reproduction. It is worth remembering that Benjamin himself was thinking primarily of media, such as photography and film, where no ‘original’ exists, for hardly would amateur artists have crossed Benjamin’s mind. In the case of Fabiola, we have a prime example of a lost original, complemented by a vast array of heterogeneous reproductions. Instead of lamenting the loss of aura, we can use this particular example to emphasize the essential productivity of the process of reproduction. These multifarious Fabiolas may not, in the last resort, be recuperated by art history, but in testifying to the resilience of a historically grounded image they also enhance our awareness of the dynamics of contemporary visual culture.”

(Stephen Bann, “Beyond Fabiola: Henner in and out of his nineteenth-century context,” p. 40 in Francis Alÿs’s Fabiola: An Investigation.)


“Well, said Paul, if they didnt want what we got would there be any progress. Perhaps there aint any progress, said Donald Paul, perhaps not. There cant not be progress, said Sam, if there isnt any progress how could we sell goods and we gotta sell goods to get a job. Yes, said Donald Paul, that’s it. And perhaps said Sam, all these over here they’re so poor they live with their chickens and all they’re just so poor. Yes all right, said Jimmie, but they do have chickens to live with. Yes, said Sam, but that aint progress. Well I dunno, said Jimmie, I like chickens, I kind of guess there always will be chickens. And if not, said Willie. Well then there might be progress, said Donald Paul . . . .”

(Gertrude Stein, Brewsie and Willie, p. 97.)

the threat of alaska

“Her friend Jennifer had moved to Alaska. Jennifer had written that there were lots of jobs and men available in Alaska. A poet, Ed Dorn, had said that Alaska reminded him of Raquel Welch. She wondered what he meant by that. Perhaps one day she would find out.”

(Ishmael Reed, The Terrible Twos, p. 16.)

the president

“The President looked out of his window. He was not very happy. ‘I worry about Bill, Hubert, Henry, Kevin, Edward, Clem, Dan and their love, Snow White. I sense that all is not well with them. Now, looking out over this green lawn, and these fine rosebushes, and into the night and the yellow buildings, and the falling Dow-Jones index and the screams of the poor, I am concerned. I have many important things to worry about, but I worry about Bill and the boys too. Because I am the President. Finally. The President of the whole fucking country. And they are Americans, Bill, Hubert, Henry, Kevin, Edward, Clem, Dan and Snow White. They are Americans. My Americans.”

(Donald Barthelme, Snow White, p. 87.)