Watching Over Media and Brands, Part I

More than any game I’ve ever seen, Overwatch is a multi-media, total brand experience. The trailers for the game could compete with Pixar shorts in every respect. The game is supplemented with comics, toys, and a professional eSports scene. It sets new industry standards in showmanship, advertising, and storyline. This is a lot more than just a video game. This is the new model for integrating a concept across every medium and platform to reach every possible audience in every way. This isn’t just the new benchmark in video games. This is the blueprint for every successful future entertainment product. Blizzard understands “today’s media landscape” as more than a business-boardroom buzzword. Other industries also have successful examples of dominating multiple platforms, though none quite on this scale.

Today’s musicians can’t get away with merely releasing music. They need to tweet and vlog, and most crucially, they need to do live performances. Katy Perry recently set the record as the most followed person on Twitter, even though publishing 140-character quips was never in the job description of a musician or a pop star. Similarly, writers can’t just write books anymore- they need to write about their writing, and then talk about writing about their writing with other writers who want to talk about talking about writing. John Green aspired to be a writer when he took a job doing data entry at a publishing company. At the time, he didn’t hope to become a transmediaplatformleader-we-don’t-have-a-word-for-this-thing. However, his understanding and use of YouTube and Twitter allowed him to promote his young adult fiction beyond what a traditional book publisher would imagine. His new media fed his career in the old media, and vice-versa. (And compared to Twitter and YouTube, video games are old media.*)

Movies won’t succeed just by creating more epic battle scenes in 3D to justify the expense of going to the theater. They need to change the experience in more fundamental ways- they probably need a smooth integration of social media, but they also need some interaction the viewers can’t get outside the theater. They need to learn what Prince knew: you can’t get the live-show experience sitting alone in your home. One way movies could adapt to the 21st century is to turn an evening at the movies into a kind of social event, akin to a concert, sports game, or convention. Another way is to make it an even more technologically-driven experience, with augmented reality or virtual reality – a kind of entertainment-themed, futuristic, individualized experience like a museum or library. That is a lot more expensive, though, and all of the theaters near me just spent a lot of money upgrading their seats.

The media channels of the 21st century aren’t just more avenues for information – they are layers of information interacting with the other layers. Television programs and movies also have to adapt to the way consumers use the newest technology. Adaptation looks like spreading out- growing to cover a larger area – but it’s also about moving to new places entirely. Entertainment has to infiltrate and flow through multiple channels. It also still relies heavily on sponsorship in many cases, which means advertising also has to be integrated across these media.**

There are other ways of adapting, such as just adding alcohol to a bookstore.  Don’t rule anything out, I guess. Especially if you don’t think anyone under 21 even knows about your store or your product, anyway.



*Not that video games are mainstream yet. My Facebook newsfeed recently informed me that Torbjorn was set to be “‘nerfed’ for consoles in future update.” The word “nerfed” was in quotations, which tells me that mainstream journalists don’t know what it means and don’t think it’s a word. (Or they’re very conscious about not genericizing Hasbro’s trademark, even though that trademark is, strictly speaking, in all-caps.)

**The alternative to advertising is some form of upfront pay-to-play, which is what Overwatch did.



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.

The Hypothetical Case of Little Buddy Burgers.

Suppose I create a popular TV show in which a character (an endearing anthropomorphic Persian cat with a “lion” furcut) owns and operates a small restaurant called “Little Buddy Burgers.” I actually did a trademark search (my first ever!) and found that Little Buddy Burgers is not currently registered with the USPTO. Some combinations of “Buddy” and “Burger” have been registered, but abandoned, which makes me wonder if it’s a cursed business model.

Question 1) If Little Buddy Burgers only exists as a fictional restaurant, but the TV show is broadcast nationwide, can the producer of the show register “Little Buddy Burgers” as a trademark on the theory that it is “in commerce” as part of a television show (which is a for-profit enterprise)? If not, could I secure the trademark by making and selling “Little Buddy Burger” t-shirts/hats/mugs etc?

This question is easy if “Little Buddy Burger” shirts and hats are being sold nationwide. It is a little trickier if the restaurant is part of the show, but not featured in the title or in the advertising for the show. If you don’t have either t-shirts or advertising material, you might be able to get a trademark on a theory of secondary meaning through an expensive consumer survey.

Question 2) Suppose that some other person loves my show and decides to open an actual Little Buddy Burger restaurant with a menu and decor patterned after the restaurant in the show. Would my registration of “Little Buddy Burgers” preclude his efforts to register that trademark?

Yeah, if I can get it registered, I can enforce it all day and night against him. If I don’t already have it registered, we return to the analysis for above, but a consumer survey showing confusion over whether the restaurant is affiliated with the show will be a strong piece of evidence. (Remember though: the standard in trademark law is “likely” confusion; actual confusion is just a bonus for the plaintiff.) I’m a tremendous advocate of looking for non-litigious solutions to these kind of problems; it would be way better for everyone to work out a licensing agreement to use “Little Buddy Burgers.” It advertises the show, the show advertises the restaurant, everybody wins. And that’s being Little Buddies.

The core issue in this hypothetical is: Can you trademark fictional elements within a work in commerce? This has potentially massive applications in videogame licensing. For example, RiotGames owns a trademark on “Pentakill.” Should they? Is it really distinctive? Or is it just a generic announcement of 5 kills? They can overcome the claim that it is a generic announcement with a consumer survey showing that “Pentakill” has acquired secondary meaning unique to League of Legends. What about “Kill-a-man-jaro,” in a distinctive deep, masculine voice- can Bungie Studios trademark that? The closest case law I know of that relates to these questions is the case of Conan Properties v. Conan Pizza, in which a pizza parlor themed itself after the comics “Conan the Barbarian.” The case was settled by the fact that a majority owner of Conan Properties went to Conan Pizza and said he loved it, which was considered “acquiescence” to the pizzeria’s use of the trademark (so Conan Properties couldn’t win their claim of trademark infringement).