Reactions and “Buzz” from E3 Couldn’t Happen Without Trademarks

When Juliet famously mused “What’s in a name?” she meant to downplay the importance of names, contending that the thing which is named (say, “a rose,” or maybe a family name of “Montague”) persists beyond whatever we call it. The world of trademarks insists on the importance of names to help us understand the differences between roses in a flourishing garden. The current state of the video game industry illustrates this point well.

I didn’t do any dedicated E3 coverage this summer, but looking back, the entire conversation happens around trademarks. The video game industry has always made use of sequels and developing franchises, and one of the biggest reasons for this has to do with the philosophy behind trademarks.

I. Building a Brand…

Trademarks exist on the theory that the creator of a product, or provider of a service, has some consistency in their work. They might rely on the same materials or recipe, they might maintain a certain standard of quality, etc. Trademarks allow an owner to benefit from consistent quality. While trademark litigation is often an argument about preventing someone else from wrongfully benefiting from an owner’s legacy of quality, the norm is just the preservation of one’s own legacy.

In the world of video game developers and publishers, this legacy is reflected in the fan reactions. Why was there such elation over “Fallout 4”? Sure, the trailers looked visually appealing, and might have even hinted at a fun game—but many other games do that every year. Why is “Fallout 4” special? Because of everything it rests upon: Fallout 3, the Fallout franchise, Bethesda Game Studio’s demonstrated caliber of game production, ZeniMax’s proven management of product launches, game director Todd Howard’s numerous awards and consistent excellence in executing his game design philosophy.

The consumers in the game industry (“gamers,” one might call them) know many ways that a game can disappoint—but because of Bethesda’s history of developing and releasing great games, the consumers are steeled against the kind of doubt that would otherwise creep in to counter excitement over an E3 trailer.

II. Destroying a Brand…

In contrast, the games industry also shows how little excitement a tainted company can generate. The perineal whipping boy of the industry has been Electronic Arts for many years now. EA continues to be the foremost example of game industry failure because they (EA and any developer they ensare) seem sadly prone to incidents which only dig itself deeper into a pit of shame and universal contempt. After “Aliens: Colonial Marines,” EA will face increased difficulty in securing game pre-orders (or having consumers believe pre-release game footage trailers). After “SimCity,” EA will find it more difficult to have the kind of participation in a product launch that game studios often rely upon in their entire marketing campaign. But unlike Blizzard, who had their own launch fiasco with “Diablo3,” EA does not have many instances of excellent games and excellent player experiences in their recent history to restore consumer faith in their brand.

III. The Law of the Brand

Trademark law is sometimes a difficult thing to explain. Intellectual property law is necessarily a little bit abstract, but copyrights and patents protect a concrete thing (a book, a painting, a movie, a chemical process, a mechanical procedure, etc). Trademarks are really anchored in the “goodwill” that a company generates though its products and services. The vagueness behind explaining trademark law can lead some to think it is not important.

Trademarks are rooted in the abstract, unquantifiable difference between the excitement over a new Bethesda game and the bitterness over Konami decision to let go of Hideo Kajima. Economists and businesspeople find that their models work best when every factor in their equations and algorithms can be carefully determined.  However, they have long understood that brand loyalty and social popularity or prestige of a brand can influence the market in ways that are difficult to mathematically predict. That weird, unseen, abstract force that pushes the market in ways numbers fail to predict is both the effect of brands and the reason for trademark law.

Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.

Privacy (as the Withholding of Information) in the Information Age

Business professionals in e-commerce talk about information like it is today’s fundamental commodity. Yet information— raw data— is less helpful than we tend to think. Privacy becomes harder to maintain in an era in which business and government think that more data is always better and that accruing data will solve problems. Information is necessary, but not sufficient, to solving problems and pushing progress along.

Lots of entities want information: governments want information about their citizens, employers want information about their employees, corporations want information about their consumers, etc. Such entities have always wanted information, but only recent technological developments have made it reasonable to obtain and organize that information. The biggest remaining barrier to such information collection is the ethical and legal concept of privacy. My contention is that the mere gathering of data is less helpful than the gatherers might think.

One way to think of this issue is to see human action as having two components: 1) an internal motivation or attitude and 2) an external display of action. So, if I purchase a large supply of plastic drinking cups, the store computers may recognize my purchase and correlate it to the kinds of other items people purchase with drinking cups: plastic cutlery, snack food, soda, and so forth. The store wants to predict my motivation by examining my action and correlating my action with similar actions and using inductive reasoning to sell me more things. But what if my motivation in buying many cups is to have a cup stacking competition? Or to have a 2nd grade class plant lima beans? The problem with relying heavily on gathering information is that you can only make guesses about the internal state of the actor.

The debatable assertion is this: Humans cannot be captured by data sets. Some (who probably favor Hume) may say they can, but it must be conceded that the data set must become extremely, extremely large. Perhaps more importantly, some elements essential to that data set cannot be collected through transaction records, e-mails, Facebook “likes”, tweets, and all other collectable data. Seen in this way, a reasonable fear emerges: as entities gather data, they act on that data as though it is a more complete picture than it actually is. Another way to state this issue is “data does not explain itself.”

There are a few important takeaways about the limits of the power of data:

1) You don’t get to know people from their Facebook profiles.

2) Stores know what people buy, but not always why they buy them.

3) Privacy can protect both parties from an incomplete picture.

4) Data is a raw material. It must be processed with understanding, refined through meaning and context, and crafted with wisdom into usable information and then into intelligence.

5) Computer systems can record observations of fact and interact according to algorithm, but cannot “understand” any “significance” or “meaning” of any data.

NOTE: There is so much to this subject! I expect to return (probably repeatedly) to this subject in more specific settings to explore deeper nuances and applications of issues.

“Oh, Reputation, Reputation!” or “Caveat Emptor”? Gearbox, Blizzard, and GenY’s Revival of Old-Timey Quality.

The latest kerfuffle in the gaming world is over game studio Gearbox’s recent release of “Aliens: Colonial Marines.” The claim (apparently upheld by journalists for Escapist, Kokatu, and IGN) is that the game is terrible. The debate that goes further is whether Gearbox was deceptive in its advertising, demos, and promotions of the game in an effort to get people to pay for the game before it hit shelves (and customers found out that the game was perhaps not as amazing as expected).

Blizzard took a decade to release Starcraft2, and fans were ultimately accepting because of its fine quality. Duke Nukem Forever took forever to be released, and society was both disgusted and apathetic. When Blizzard released Diablo3 after a decade of waiting, fans were outraged because the quality of the experience (from Error 37 to RMAH delays to gameplay curve) just wasn’t up to expectations.

Brands are important to many industries, but I think that IP-based industries feel a special dependence on their reputation. Because the expression is protected by the copyright (and the idea is not), consumers go to their favored bran because they expect a quality of the expression. You can get a very similar game or story from almost any major studio, but people come to trust (or distrust) studios for their quality of interface, graphics, and overall gameplay experience. When a studio fails to meet expectations, there are always plenty of other places to turn to for an FPS or RPG or RTS.

When large, successful studios release poor quality products and then fail to apologize sufficiently, it can create the impression that the studio no longer cares about its fans as much as it cares about its money. Somehow, corporations sometimes think they have to weigh the interests of their “investors” against those of their customers, forgetting that customers are the ultimate investor in any business venture.

The videogame industry might have the lowest tolerance for deceptive advertising or failure to meet basic expectations. The consumer base is often prone to research and has a very communicative community. The nature of an IP based-business demands a lot out of the expression of the idea. Todd Howard likes to note that “execution” of an idea is more important than the idea itself; having a great idea doesn’t matter as much if you don’t pull it off as well as a less awesome idea done really well. Because no game studio can copyright the idea of a first-person shooter or stealth-based game, the ability of a studio to execute its ideas might be the single core criterion by which a videogame can be judged and compared to its rivals.

I don’t think “Aliens” would be in such hot water if the advertising had been less ambitious. I don’t think any of the games I mentioned would have faced such negative receptions if the expectations had not so far outstripped the reality, and if the industry wasn’t able to offer so many alternatives (Torchlight2 is shockingly similar to Diablo3… except for all of the errors and problems).

 

UPDATE 4/3:  http://www.escapistmagazine.com/news/view/123059-Sega-Admits-to-Inaccurate-Aliens-Colonial-Marines-Trailer

Happiness in a Structurally Unhappy Culture

Modern media continually inject us with two anathemas: news and advertising. I will address the latter, which hinges essentially on a message of the form: YOU NEED X. This is what David Cross called “an existence based on manufactured necessity.” (Alan Watts has spoken somewhat on this subject from the Zen Buddhist perspective; without recommending him per se, I recommend reflection on his commentary.)

Individual notions of happiness are subjective, and so ideas of unhappiness are, too. I focus on one issue: does something about the capitalist model nudge us towards something we are prone to find unsatisfactory? I think so, and I think advertising is the connection between a business’ need to make profits and the idea that we lack (or “want”) something. It does not seem likely that we will make as many purchases if we do not feel we need or want anything. Markets are created as people discover a lack—and so there is an interest in manufacturing those lacks (“wants”). A common response to wanting something is some kind of unhappiness. The argument, then, is this: Capitalism emphasizes markets to create profits for businesses. Businesses use advertising to create and expand markets to generate more profits (for the business). Advertising often tells consumers that they lack something in their lives— that something is wrong, insufficient, or missing—and that the business can resolve it. The effect is twofold: 1) we feel our lives are constantly amiss, 2) we feel a continual need to “fix” our “broken” selves/lives/identities/being—and this requires that we work to get enough money to pay for these products and services throughout our lives.

If this line of thought has anything to it, then it is simplistic to think of the problem as strictly being money or power systems or economic structures. One of the fundamental assumptions of this argument is that our happiness is at odds with feeling that something is wrong with our personal state of affairs (whatever we may call “our lives”). This gives us a different notion of what the problem is and how it might be resolved (or what attempted solutions might not work). It seems that mere changes in external systems (especially economic structures) won’t be sufficient if we remain under the belief that our lives are ineffective and in need of constant aid. The corollary is the question: Can we then recover some of this happiness within the current system? If no economic or political system can make us happy so long as it imposes a continual feeling of our own inadequacy and insufficiency, can we achieve feelings of worth and sufficient value within a system that attempts to convince us of our continual want? The answer is crucial in helping us decide whether the next great revolution must be an internal or external one.