Results tagged “corporateidentity” from Uncivil Society

I was looking through legal materials last night and noticed something that had been there all along but had not previously caught my attention:

DC Comics, Inc. does not exist. In fact, it died the same year as Superman.

Really. As noted in court filings in the Superman case, in the early 1990s DC Comics, Inc. was dissolved and converted into a general partnership co-owned by two Time Warner subsidiaries (see this court order, p.4, #20) . The Superman court documents state that this happened back in 1993, but contemporaneous SEC filings state that the restructuring actually took place back in 1992:

TWE and WBI each owns a 50% interest in DC Comics, a New York general partnership, formed effective June 30, 1992 to continue the business previously conducted by DC Comics Inc., a New York corporation.

A search of the New York Corporations registry confirms that the name "DC Comics, Inc." is no longer active.

I'm a bit time constricted right now, so I'll have to leave out much of the legal analysis I'd provide were I writing this on Blog@, to which I plan to return soon once I finish my current writing project. For all I know, this may have been a major topic of discussion back in 1992, a period of time when I was temporarily out of the loop in all things comics--when I have a bit more time, I'll do a bit more digging.

Meanwhile, a few quick notes:

*DC Comics still exists, just as a general partnership. That partnership is the entity that co-owns Superman and assigned the rights within Time Warner.

*Unlike a corporation, a partnership does not pay corporate tax. It is what is called in the biz a "flow-thru" entity. This tax status may have been at least partially a reason for the switch, though the enhanced organizational integration of DC's intellectual properties with Warner entertainment entities also may have been a factor.

*One trait a general partnership does not have is limited liability. What particularly struck me in regard to this is that Time Warner did not restructure EC Publications, Inc., which publishes Mad Magazine and could be more of a lightning rod for lawsuits.

*For reasons I *really* won't go into now re the history of corporate taxation, if the transaction had been being structured today I wonder if Time Warner would have set up DC Comics as a Limited Liability Company instead of a general partnership.

*Again, this is all off-the-cuff reflection, lacking the more intensive research & review I'd do for a post elsewhere. If anyone knows more re this, feel free to drop me a line.

Blog@ picked up on the story of Diane von Furstenberg's ongoing plans for her Wonder Woman project, which will include a comic book with a women's empowerment message & will send proceeds to Vital Voices.  It's another example of the link between creative, personal and corporate transformation, and it's also fun.  The characters featured in her comic:

I always wanted to have these three characters Diva, Viva and Fifa, as in DVF, and we came up with the concept,” she said. “I called Konstantin, my artist friend, and asked him, ‘Would you like to do it?’ And now it exists.”

The key is that the three heroines — all of whom are wearing DVF clothes — make things happen. Diva, for instance, finds herself in a downtown bar to celebrate a male colleague’s successful leveraged buyout and his pending promotion. It turns out, however, that Diva was the brains behind the project. She looks at a reflective surface and sees a DVF, which emboldens her to “Be the Wonder Woman you can be.” Diva makes the point the lbo was her idea, and lands a promotion.

Viva, meanwhile, accompanies her older brothers to a music gig. Feeling intimidated to stay in the van, the reflection of DVF encourages her to get up on stage to sing. She ends up with a record deal.

Finally, mother-of-three Fifa receives news she is a finalist for a Gourmet Cooking award. Juggling the responsibilities of running a home, she is unsure that she can attend the ceremony, but DVF empowers her to get a babysitter and she wins the trophy.

“I am Diva, Viva and Fifa altogether, I am DVF,” von Furstenberg said. “It’s not so much that I identify with each of them, though. The idea is that if you feel insecure, look at yourself in the mirror, and through the reflection remember to be the Wonder Woman you can be. That’s my message.”  

The diffusion of the emergent civic partnership from the state to private corporations is significant for reasons that go beyond historic curiosity.  It is this very period, from the groundbreaking social theory of the Scottish Enlightenment to the first modern corporation statutes, that formalizes the hybrid structure of contemporary corporate identity, from the private corporation as a ubiquitous legal structure to the commercial brand.  

As with all forms of the civic partnership extending back through Aristotle to the religious state, private corporate identity arose a means to model emergence and to use it as a tool.  As an organizational medium it exists on a continuum with art, music, dance and other modes of expression that utilize rules, connections and modes of distinction to create novel patterns.  Viewed from the global perspective these forms appear to be a whole unto themselves; art for art’s sake transcending the mundane is but a more poetic analog of a corporate brand that is legally distinct from its shareholders, managers and patrons.  At the same time, all of these forms consist of separate elements that viewed in themselves are routine—the articles and bylaws of a corporation may seem mechanical and soulless on their face, but they play the same role in generating a transformative unity as musical notes on lined paper or and the mathematics of linear perspective.  

The connection between emergence and corporate identity was more apparent to previous generations of legal scholars, who lived in an age before hyper-specialization and thus were more familiar with the arts and metaphor.  The paradigmatic expression of this link was the metaphor of corporate personality, an image now dismissed by reductionistic corporate academics.  What the present generation has lost by discarding this language as a mere fiction is the central role of fictio—creative art, from the Latin for making or shaping—in the culture of contemporary entrepreneurship.  

Far from being obsolete, Blackstone’s paradigmatic  description of the law of corporate personality is the modern analogue to Aristotle’s koinonia politike—together they function as the Demotic and Greek in the Rosetta Stone of corporate hieroglyphs. Like his predecessors, Blackstone used metaphors to model a phenomenon that we would now describe as an emergent identity, a pattern with properties distinct from those of its separate parts.

As Blackstone indicates, the corporation arose as a counterpart to the commercial partnership, which under the law of the day was merely an aggregate of its constituent individuals; once a partner left the partnership dissolved.  What the architects of corporate form discerned was that the corporation creates an identity that its distinct from those associated with it at any one point in time—it is “one whole out of many persons,” because
 

when they are consolidated and united into a corporation, [the members] and their successors are considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a fort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant (Blackstone, 1765-69).

Whatever the additional utility of the corporation and its analogs, this ratio of difference between whole and parts is the root of its coherence.  The corporation’s name gives it a distinct identity apart from its individual members; the rules contained in its charter documents work together to create the higher collective order that members “in their natural persons . . . could not have had” (Bk. 1, Ch. 18).

Since Blackstone’s day the image of the corporate person has become a cliché.  The intellectual fascination with corporate personality evident in the works of Hobbes, Blackstone and other writers centuries ago has largely disappeared; while corporate personality may be a recurring image in popular culture and practicing law, theorists tend to dismiss it as little more than a distracting folk metaphor. However, as Marshall McLuhan observed more generally in his analysis of cliché as archetype, this is precisely what makes corporate identity so influential. Corporate form is effective in propagating an identity defined by the difference between whole and parts precisely because we no longer find it unusual.
 

Whatever use we may make of the corporation in reducing costs or maximizing efficient production, its core coherence derives from its perceived integrity as a form distinct from its constituent elements.  To this end, corporate law encodes the dynamic of connection and constraint depicted in the metaphor of a koinonia politike—a “partnership of the city” or “social contract.”  On the one hand, it connects people through a common name, shared purpose and synchronized interaction; it even links people across time by enabling these elements to survive the loss of any one participant in the venture.  In additional, the law establishes the contours of an adaptive mechanism for collective decision-making; individuals may have their differences, but after exchanging information they make a choice directed toward re-synchronizing action.  

At the same time, corporate law also establishes a set of constraints that work together to resist reduction of the whole to select parts, particularly through opportunistic self-serving behavior managers and controlling shareholders.  The hallmark of the modern corporation—limited liability—is one such constraint; by creating a firewall between corporate obligations and directors’ assets, the law signals that the corporation is not equivalent to its managers.  Fiduciary duties perform a similar function.  The duty of care and the duty of loyalty each establish that a director must serve a higher interest than their own;  in a way contemporary corporate theory has yet to grasp, every corporation is to some degree a nonprofit corporation, inasmuch as even managers who are shareholders must rein in their private interests to benefit an entity that is greater than themselves.

Like social enterprise, corporate law functions as a generative algorithm that takes shape in a diverse array of forms.  It is at its most basic level the contemporary analogue of the classical notion of civil society—it serves as a means to leverage emergence as a tool, and this tool in turn reshapes how we think and act.  

The effects of this dynamic are evident in the course of corporate history itself.  Through the early nineteenth century, the corporation in law was a quasi-public entity; as Blackstone’s chapter illustrates, the term was synonymous with charities, churches and corporate ventures granted charters because they served the public good.  It is precisely this aspect of corporate form that contemporary advocates of civil society overlook when they mistakenly assume that Alexis de Tocqueville was referring only to nonprofits in his landmark description of American voluntarism.  In reality, de Tocqueville was describing an array of cooperative enterprises seen at the time as providing public benefit, many of which we would now categorize as for-profit business corporations.  

The emergence of differentiated categories within organizational law—business corporations, professional corporations, nonprofits and so forth—reflects the same sort of clustering that we saw in the emergence of distinct wells of attraction within social enterprise.  In certain key details they appear distinct, such as different rules for asset distribution or different default structures for governance.  Yet they are all self-similar, coded to generate a new discrete identity from constituent elements, albeit to varying degrees.   

At base, corporate form is not just a set of connections and default rules.  It is an organizational technology programmed to create a discrete new identity. Twenty-five hundred years ago this identity seemed unfathomable, even miraculous, something capable of being understood only if anchored to a deity, city or nation.  Over time the anchors became more variable—an identifiable monastic order, an academic universitas, a church—until eventually it became so familiar as to be credible where two or three people gathered together under a common name.    

Today the corporation is not the only organizational medium that expresses distinct identity.  We have grown so acclimated to organizational media that mimic emergent identity that the law treats even the commercial partnership as a discrete entity for certain purposes, while various contingent circumstances have sparked the creation of equally distinct corporate entities, such as the limited liability company.  The brand name itself is an extension of the corporate name as a mode of creating a novel identity; every time we encounter a logo we perceive a self-subsisting set of properties rooted in a model of emergence.

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Via The Frontal Cortex & Bookslut:

[Konrad] Lorenz observed that jackdaws form lifelong attachments, as rooks seem to do, and that there is a distinct, well-understood pecking order within the tribe to which all the members adhere without question. Lorenz gradually learnt the Jackdaw vocabulary: 'Zick, Zick' is uttered by the courting male to mean 'Let's nest together' and, once in possession of an actual mate and nest, 'Keep out.' Any act of social delinquency is immediately censured by the other tribe members with a variation of this call, expressed by Lorenz as 'Yip, Yip.' Most interesting of all is Lorenz's discovery of the subtle distinction between 'Kia' and 'Kiaw.' The first is the cry uttered in flight by the dominant jackdaws to urge the whole flock outward to new feeding grounds. The second is to urge them home. Thus, 'Kiaw' plays a vital role in maintaining the integrity of the flock when one meets another.

Most birds seem to keep their song quite separate from their language. The staccato alarm cry of a wren or blackbird is quite distinct from its sweet song. Jackdaws, however, incorporate their words into their songs to create, as Lorenz puts it, something more like a ballad, in which they can re-create past adventures or directly express emotions. Not only this, but the singer accompanies the different cries with the corresponding gestures, quivering or threatening like the lustiest performer passionately enacting a song. In a way, the jackdaw is mimicking itself, as a solitary jackdaw kept in a cage will come to mimic human speech, but it may also, Lorenz thinks, be expressing emotion. When a marten broke into the roosting aviary at Altenberg and killed all but one of his jackdaw flock, the lone survivor sat all day on the weathervane and sang. The dominant theme of her song, repeated over and over, was 'Kiaw,' 'Come back, oh, come back.' It was a song of heartbreak.

Duke and Carolina basketball fans tend not to unite on positive values--which is the best team, who is the better player--but their game tonight opened with a singular unifying moment. As the announcer declared before the game started, the teams & students were coming together not as two rival teams but as one community, honoring the memory of the UNC's student body president, murdered earlier this week.

Uniting in loss. A moment of silence. Everyone in attendance wearing a ribbon in Carolina blue, not as a mark of loyalty but as a symbol of sympathy (sum + pathos, feeling together) in loss.

Defined not by what they are but what is not.

Woman's Day, January 1961.

Via

"Lurk #2" by Josh Keyes

Via

Sharktales Extra:

The answer to this question depends on a number of variables, not least of which is personal perspective.

It's not hard in the nonprofit & progressive worlds to find folks who'd say the picture is spot on. For-profiteers are sharks; their do-gooding is a thin veneer, endangering their nonprofit partners.

For others, the answer to this question is a clear no--as I like to say, corporations are people too, and many within business see corporate ethics & philanthropy as an extension of themselves.

This New York Times article on an Upper West Side children's store illustrates the transformation of profit-making commerce into nonprofit identity.

The store, A Time for Children, on Amsterdam Avenue near 84th Street, is owned by a family foundation that Ms. Stern and her husband, Michael Stern, established two decades ago to help disadvantaged children.

She opened the store, she said, as an enhanced way for their foundation to support theChildren’s Aid Society in New York City. With the store, she said, the couple’s foundation, Big Wood, provides not only money for Children’s Aid, but also a job-training site for its youth employment program.

All of the store’s after-tax revenue goes to Children’s Aid, and all of its employees, except for two managers and a training assistant, are 16- to 20-year-olds referred for part-time work by the agency. They generally work four-month stints of 12 to 15 hours a week, earning $8 an hour, while attending high school in most cases, or college in a few.

Karrie Jacobs offers a wry commentary on the iconic excess of the new passport design--and wishes she could rather have the picture offered for her checks.

Took a break from a rather busy weekend to drop by the New Museum. The first floor is smart--a gift shop that doubles as a display area, a food kiosk doubling as exhibit space--serving as a model of how a charity can shift attention in ways that transform commercial space.

The top floor is cool, too, with a wraparound outside deck that practically makes it a sin not to buy a glass of wine to sip as you soak in the cityscape.

The exhibit in the middle . . .

Well . . .

It's too '80s, and not in a good way. In a boring way.

Now, I like a lot of stuff from the eighties, including things you might not guess. But the reason I like it has a lot to do with the fact that in its time, it was interesting. Copying the style twenty years later--not so much.

The premise of "Unmonumental" is that we live in an era of fragmentation. Thus the exhibit "exploits the formal and ideological power of juxtaposing found images to create everything from social and political commentaries to Surrealist fantasies and personal confessions."

In other words, Bush is bad. Brands are superficial. Suburbia is empty. Everything is broken.

Yawn.

Yes, the absurdist disaggregation of corporate icons had its moment--in fact, anyone who saw my grad student collage displays in the basement of Duke Div got an eyeful of that from yours truly back in 1988.

But what's more interesting now, I believe, is the subsequent shift toward cultures of coherence. It's like the McLuhan quote I dropped in a comment over at GiftHub--today, it's the traditionalist who is the true radical.

In that regard the basement "Donor Hall" exhibit charting arts & culture philanthropy is equally disappointing. Plotting pie graphs on giant images of pies--oh, how radical. Sifting out donors to highlight corporate hegemony and to diss Halliburton--oh, how subversive. We'd have a much better hope of "understanding and change" with more rigorous Tufte-esque data displays and fewer self-indulgent cutesy visual tricks.

The whole experience got me thinking of museum exhibits I'd like to see, but that's a post for another day.

"The "recantation" of old men, if it occurs, is easily understood. Having been brought up in a particular religion, their earliest and tenderest memories may be connected with it; and when they lie down to die they may mechanically recur to it, just as they may forget whole years of their maturity, and vividly remember the scenes of their childhood."

--G.W. Foote, Infidel Death-Beds

"Bill Gates Issues Call for Kinder Capitalism."

That's the front page headline of today's Wall Street Journal, and I guess if I were a good little trooper I'd join in the celebration of his Damascene conversion to the cause.

But that's not how most people in business will see it, and it's important we recognize why Gates' sermonizing is likely to fall on deaf ears.

First, there's the natural reaction that Gates is merely giving voice to a guilty conscience.  Sin in business, repent in retirement is one cliche that has indeed become an archetype.  One by-product of this: reinforcement of the image of charity as a luxury good.

In addition, there's the suspicion that Gates is cynically trying to shore up Microsoft's market position.  How?  Well, now that he's not in active control and competitors are chipping away at Microsoft's market share, he's trying to shame competitors into pulling back--and, more directly, to get consumers to see its competitors as selfish and exploitive.  If government responds by requiring businesses to be more socially conscience, that's all the better, because it has the potential to freeze the market in its current state.

It's the kind of virtue-jitsu we see in the Clinton campaign, which is a master at using appeals to decency to shut down political opponents.  Except Microsoft is not a politician campaigning on a platform of universal health care and aid to the poor; it's still first and foremost a multi-billion dollar quasi-monopoly with an established reputation for ruthless profit-seeking in pursuit of market share.

For Gates' appeal to have had substantial ripple effects, it really had to have been issued while he was in charge.  It would also require visible changes in Microsoft's own business practices.  Last but not least, Gates would have to provide a compelling rationale beyond a guilty conscience, an argument easily parried by anyone who has a superficial acquaintance with Adam Smith.  

In this regard, the ultimate failure is not Gates', but our own.  The self-identified do-gooding community has not given him or any other aspiring philanthropic capitalists the conceptual tools to move beyond prevailing corporate norms.

RESPONSE TIME EXTRA:

The Slashdot thread on the story provides an interesting set of reactions.

This is the other piece of artwork I see every day. It's a page from
Jeff Nicholson's classic Eisner nominated "Day's Work, NIght's Rest" in The Dreaming #15.

I've been asked what it is about this page that makes it so iconic to me. After all, I'm a professor & lawyer--haven't worked an honest day in my life, at least since high school.

One could, I guess, look at it as a means of connecting with my past, hundreds of years of drechslers--"lathe-turners", craftsmen--who, as one law professor from Germany once aptly observed, no doubt shaped my fascination with design.

That's probably right, except it goes a bit deeper. I look at photos of the stars and see the constant churning of creation--connection, destruction, transformation, the new--and I can't help but draw a line between that and less overtly physical work. It's all of a piece, really; our minds draw their power from the cosmic furnace giving rise to infinite varieties of form.

At least I like to think so, anyway, in part with the daily reminder provided by this page.


CORPORATE COMICS EXTRA:

Click here for the pages leading up to this one.

Nicholson is also the writer/artist of Through the Habitrails, an equally trenchant and surreal look at corporate identity.

Last week I had the pleasure of talking to Ian Wilhelm, a reporter who has been writing about the GiveWell controversy for the Chronicle of Philanthropy.  His story for the print edition hit the web early this morning. 

Ian does a great job providing an overview of what happened & a range of different perspectives.  Tomorrow I'll post a podcast with highlights from our conversation.  In the article itself, Michelle Moon--MetaFilter's Miko, the first to spot the GW sockpuppetry--hits the nail square on the head by highlighting the importance of the culture clash between commercial marketing and charitable transparency. 

Click the link below to read a few excerpts.  I'll chat more about my own quoted comment when I post the podcast.      

This is a picture of the TV news screen in the elevator at my office. The service is called the Captivate Network.

I get why biz would want an advertising hook in a closed office space that well nigh everyone must use. And hey, their ad copy says I'm "desirable."

But why choose a name that reinforces the metaphor of a corporate prison?

Women's Wear Daily had an interesting sidebar yesterday re an emerging controversy over Madonna's charity, Raising Malawi. Here's the story, followed some facts that I've dug up that suggest there might have been a better way to handle this:

On Wednesday, foxnews.com claimed the singer "has conned both UNICEF USA and Gucci into helping her raise money for the Kabbalah Centre and Madonna's patron gurus, the Berg family." The article claimed Madonna's charity, Raising Malawi, is a front for the Kabbalah Centre in Los Angeles, and thus implied that Gucci's Feb. 6 benefit to aid UNICEF and Raising Malawi, which Madonna cohosts, ultimately benefits the Kabbalah Centre.

"I think that the claims in the story are outrageous, they are incorrect, inaccurate, hurtful and malicious," Liz Rosenberg, Madonna's publicist, told WWD. "The reality is — and it's never been a secret — that the Raising Malawi organization was cofounded by Madonna and Michael Berg, who is one of the spearheading executives of the Kabbalah organization. The Raising Malawi organization is completely separate from the Kabbalah, and they are run as two separate organizations."

The foxnews.com report also suggested Raising Malawi had plans to indoctrinate "unsuspecting Malawi orphans into their brand of mysticism," having flown in teachers from Malawi to Los Angeles to "retrofit them for Kabbalah."

"There are no religious lessons being taught to the children of Malawi," Rosenberg said of those claims. "It's tragic, because Madonna has put her passion and love and money behind a project that is saving children's lives, giving them food, health care and schooling. The money that is being raised at the Gucci benefit is being divided between UNICEF and Raising Malawi."

She added that the funds raised that night are earmarked for the building of a girls' school in Malawi. "There is a board, where accountability will be very clear and very specific, and all funds will be accounted for," Rosenberg said.

Gucci, too, issued a statement refuting the claims: "The accusations are not true. By agreement with Raising Malawi, the gifts and donations dedicated to Raising Malawi from this event will go directly to Raising Malawi, which is a legally distinct entity from the Kabbalah Centre or from any religious organization. Proceeds from this event are specifically allocated to support programs for orphans and children made vulnerable by HIV/AIDS, including the building of a girls' academy in Malawi."

Sounds pretty straightforward, no?

Yet there remains, pardon the pun, a loose thread that could give rise to further accusations that Raising Malawi is not being forthright with the facts. Go to the Raising Malawi site and you'll find a reference to the charity's partnership with Spirituality for Kids, an organization dedicated to providing children with the "spiritual tools" that will help them find "true spirituality." A quick trip over to Guidestar reveals that the president of SFK is Karen Berg, co-founder of the Kabbalah Centre and Michael Berg's wife.

Is any of this in violation of the law? Is it weird or underhanded or cultish? No, not at all. Having a religious motive, working with a religious organization and partnering with one's spouse in a charitable endeavor are not illegal in the least.

But that's not how the PR teams responded. Instead, they disclaimed any and all connection between Madonna's charity and religious instruction--an assertion that Raising Malawi's own website undercuts.

How should the charity have responded? More below:

Frankly, I'm wondering why Hasbro didn't C&D the Scrabulous folks sooner. My favorite aspect of the story: the defense that the Scrabulous folks only make around $25,000 a month. Just one more illustration of how pricing strategy and relative scale can shape perception of a space beyond competitive exchange.

This afternoon I went to the Guggenheim Museum for the final day of its Richard Prince "Spiritual America" retrospective.  Prince is perhaps most famous for his explorations of appropriated imagery, such as Marlboro cowboys, biker mag girlfriends and nurses on the cover of pulps.

The one that really grabbed me, though, was the picture on the left.  The caption on the bottom:  "Leading his own life now?  Are you kidding?  That's not his own life."

Surely it's not possible to be super-effective and yet lose one's sense of self . . .

When flying into Charleston the other day, I looked out my window and saw water flow through land. Fractal patterns everywhere. Rivers, streams, swamps, houses, developments, cities--you could see unfolding nature taking shape before your eyes.

Image via ffffound, which has quickly become one of my favorite sites on the web

More here.