As if to prove my point about the mature "themes" in COD being a contributing factor to it's "M" rating, this article was published in The Boston Herald this morning.
Nina Huntemann, the article's feature, is a professor at my alum, Suffolk University (well, it's where I attended law school). Not only does she bring up the point that there are potentially harmful attitudes and themes in COD 2 (such as Americans being on the "right" side of the fight, and reinforcing war as an effective way to solve global conflict), but also that, when choosing a game for their children, the ESRB rating is a "good place to start." She goes on to say: '“Parents should learn what these games are about by reading reviews beforehand and then asking to see games demonstrated on store kiosks,” Huntemann added. If they do buy a game, she said, parents should be prepared to learn how to play it, even if in a rudimentary way.'
I won't elaborate any more because I do like readers to give traffic to the source site, but I would highly encourage you to read both the article and her work "Joystick Soldiers." I'm going to see if I can track down an email address for Ms. Huntemann and find out more about her work.
Tuesday, December 22, 2009
Monday, December 21, 2009
Re: Dante's Inferno Proves Corrupt ESRB
I am writing this blog in response to this article, which was posted on PS3center.net on 12/19. I would highly encourage you to read that article first, and for your own opinions and conclusions about the ESRB. I had a few thoughts on both the article and the ESRB that I would like to address.
First of all, Dustin (the author of the article), you do make a good point - complaints, potential lawsuits and all kinds of other PC shit (and I mean "politically correct, not PC game/games. Please don't strangle me with your LAN cords. Yes, I stole that from The Guild) muddle the standards by which games are judged. Nowadays, it seems that you have to be between the ages of 2 and 4 to enjoy an "E" rated game, when even a few years ago there were plenty of "E"-rated games that were "fun for the whole family," if you will. For example, look at one of my favorite SIM-type games of all time: Viva Piñata. It was rated "E," but the majority of gameplay was spent trying to get the animals to do the nasty and make tiny piñata babies. Granted, it all revolved around a mini-game where you collected hearts, but anyone over 4 would understand what the unicorns were doing when they went into their magical tent.
My point? It's all about perception. In ratings, it matters how you present sex and violence. And on top of that, the ESRB appears to "prioritize" sex and violence; i.e., I would argue sex and nudity are more likely to get you and "M" or the dreaded "AO" than violence alone. I mean, it's kind of tough to play ANY adventure, platformer or RPG without killing everything in sight. What matters is whether they just disappear when you kill them (ala Final Fantasy), or end up in a bloody messy at your feet with your character covered in blood (ala Dragon Age... which I love, btw. I want to WEAR my victories!! MUHAHAHAHAH!). In contrast, because six isn't considered "necessary" to most video game story lines or gameplay, I (personally) believe if it judged more harshly.
To that same end, any "combination" of language, sex & violence can get you an "M" rating. Dustin pointed out that while he may let his younger brother play COD, he probably wouldn't let him near Dante's Inferno. COD has plenty of violence, but there are other more "practical" adult themes at play her - namely, war. In COD, you theoretically are killing your fellow man; another human being who feels differently than you do. That theme is arguably much more controversial than killing demons from hell. In contrast, the sheer VOLUME of violence and sex in Dante's Inferno won it it's "M" rating. I think people operate under the false assumption that all "M" games are created equal, and that is simply not the case. You can't just say, across the board, all "M" games are fine for my kid (or younger brother). There are a myraid of factors that got that game there, and there's not substitute to doing a little research.
Is it a pain in the ass? Yes. But it works the same way with movies and parental advisory stickers - there's a committee, somewhere, that (for better or worse) is trying to tell you something. They can't write a novel on the back of the game giving a play by play of each bit of questionable content. But I believe that, at the end of the day, the ESRB is a "warning" system, not a babysitter. If someone has personal morals that forbid their kids from exposure to certain kinds of adult content, it's up to that person to find out which games are offensive in that manner. And I think that overall, the ESRB does that better than any other entertainment rating system out there.
Please don't get me wrong; I'm not bagging on Dustin or holding up my flag for the ESRB. I'm simply pointing out that all "M"s are not created equal, and it's dangerous to operate under that assumption.
For more information on the ESRB and it's rating system, please visit esrb.org.
First of all, Dustin (the author of the article), you do make a good point - complaints, potential lawsuits and all kinds of other PC shit (and I mean "politically correct, not PC game/games. Please don't strangle me with your LAN cords. Yes, I stole that from The Guild) muddle the standards by which games are judged. Nowadays, it seems that you have to be between the ages of 2 and 4 to enjoy an "E" rated game, when even a few years ago there were plenty of "E"-rated games that were "fun for the whole family," if you will. For example, look at one of my favorite SIM-type games of all time: Viva Piñata. It was rated "E," but the majority of gameplay was spent trying to get the animals to do the nasty and make tiny piñata babies. Granted, it all revolved around a mini-game where you collected hearts, but anyone over 4 would understand what the unicorns were doing when they went into their magical tent.
My point? It's all about perception. In ratings, it matters how you present sex and violence. And on top of that, the ESRB appears to "prioritize" sex and violence; i.e., I would argue sex and nudity are more likely to get you and "M" or the dreaded "AO" than violence alone. I mean, it's kind of tough to play ANY adventure, platformer or RPG without killing everything in sight. What matters is whether they just disappear when you kill them (ala Final Fantasy), or end up in a bloody messy at your feet with your character covered in blood (ala Dragon Age... which I love, btw. I want to WEAR my victories!! MUHAHAHAHAH!). In contrast, because six isn't considered "necessary" to most video game story lines or gameplay, I (personally) believe if it judged more harshly.
To that same end, any "combination" of language, sex & violence can get you an "M" rating. Dustin pointed out that while he may let his younger brother play COD, he probably wouldn't let him near Dante's Inferno. COD has plenty of violence, but there are other more "practical" adult themes at play her - namely, war. In COD, you theoretically are killing your fellow man; another human being who feels differently than you do. That theme is arguably much more controversial than killing demons from hell. In contrast, the sheer VOLUME of violence and sex in Dante's Inferno won it it's "M" rating. I think people operate under the false assumption that all "M" games are created equal, and that is simply not the case. You can't just say, across the board, all "M" games are fine for my kid (or younger brother). There are a myraid of factors that got that game there, and there's not substitute to doing a little research.
Is it a pain in the ass? Yes. But it works the same way with movies and parental advisory stickers - there's a committee, somewhere, that (for better or worse) is trying to tell you something. They can't write a novel on the back of the game giving a play by play of each bit of questionable content. But I believe that, at the end of the day, the ESRB is a "warning" system, not a babysitter. If someone has personal morals that forbid their kids from exposure to certain kinds of adult content, it's up to that person to find out which games are offensive in that manner. And I think that overall, the ESRB does that better than any other entertainment rating system out there.
Please don't get me wrong; I'm not bagging on Dustin or holding up my flag for the ESRB. I'm simply pointing out that all "M"s are not created equal, and it's dangerous to operate under that assumption.
For more information on the ESRB and it's rating system, please visit esrb.org.
Friday, December 11, 2009
Buy Your Tix Now! Vid Game Exhibit in Smithsonian in... Wait... 2012?
In what can politely be called an "early announcement," the Smithsonian American Art Museum recently published an announcement that it will host a 6-month exhibit on the evolution of video games, beginning in March 2012.
First of all, this is sure to be a completely bad-ass exhibit. I honestly wish I had kids just so I could take them and show them just how far video games have come since "War Games." (Do you remember that? Ah, nerd memories...) Alas, it will likely be just me and my fiancé nerding out with all the other adults that proudly wear their gamertags on their sleeves. But no matter.
The exhibit is sure to have its high and low points. For example, not only will the exhibit take a comprehensive look at every console system (big positive there and yes, I'm bias to consoles), but there will even be a demonstration room where visitors can play games.
Wait, a demo room? Cool in concept? Yes. Execution? Hmm... I'm afraid that the Smithsonian Directors may underestimate the power of a gamer, especially under the influence of an energy drink or one too many cups of coffee. And I know I would fuel up before taking on that exhibit. In mean, the line to play Wii at Best Buy is annoying enough... can you imagine the hoarding when there's thousands of game enthusiasts in one place, scrambling to get their moments of reminiscence with an Atari system? I shudder to think. You know people that live in the DC area will visit that exhibit multiple times just to hang out in the that room. And the adults are sure to be worse than the kids (aren't they always?)
Either way, I know I'll be heading down to DC sometime during 2012. In other news, I've recently discovered The Guild. How the hell did I miss this??
First of all, this is sure to be a completely bad-ass exhibit. I honestly wish I had kids just so I could take them and show them just how far video games have come since "War Games." (Do you remember that? Ah, nerd memories...) Alas, it will likely be just me and my fiancé nerding out with all the other adults that proudly wear their gamertags on their sleeves. But no matter.
The exhibit is sure to have its high and low points. For example, not only will the exhibit take a comprehensive look at every console system (big positive there and yes, I'm bias to consoles), but there will even be a demonstration room where visitors can play games.
Wait, a demo room? Cool in concept? Yes. Execution? Hmm... I'm afraid that the Smithsonian Directors may underestimate the power of a gamer, especially under the influence of an energy drink or one too many cups of coffee. And I know I would fuel up before taking on that exhibit. In mean, the line to play Wii at Best Buy is annoying enough... can you imagine the hoarding when there's thousands of game enthusiasts in one place, scrambling to get their moments of reminiscence with an Atari system? I shudder to think. You know people that live in the DC area will visit that exhibit multiple times just to hang out in the that room. And the adults are sure to be worse than the kids (aren't they always?)
Either way, I know I'll be heading down to DC sometime during 2012. In other news, I've recently discovered The Guild. How the hell did I miss this??
Wednesday, December 9, 2009
BU Student Ordered to Destroy Files, But Can't Be Silenced
Unless you're a totally copyright nerd like me, you may not having been following the case of Joel Tenebaum, a Boston University student that was order to pay $675K to four labels for downloading 30 songs.
Yesterday, BostonChannel.com reported that the judge presiding over the case order Tenebaum to destroy all of the infringing files, but would not grant the RIAA's request that Tenebaum be prohibiting from speaking out against copyright laws and his belief in file sharing, based on this wacky, old federal law call the First Amendment. Those nutty judges.
I don't have too much to say about this case except that the amount of "damages" is clearly over-the-top, and that you can't get blood from a stone. To me, the spirit of statutory damages clause in the Copyright Act (allowing up to a $150K fine for one violation) was meant to stop commercial pirates and widespread distributors of materials covered by copyright; not grad students. Perhaps I am mistaken. The judge in the case, Nancy Gerter, urged Congress to consider changing the copyright law. I have mixed feelings about this myself; arguably, the courts have discretion to interpret the Act for digital distributions. On the other hand, have written law covering P2P and other new methods of file sharing could be helpful, but only if Congress truly digests how people are distributing music online and what truly violates not only the text, but the spirit of copyright protection. I'm not sure that Congress is there yet.
Tenebaum's attorney said they would be submitting a motion for a new trial by January 4th. God's speed, my friend.
Yesterday, BostonChannel.com reported that the judge presiding over the case order Tenebaum to destroy all of the infringing files, but would not grant the RIAA's request that Tenebaum be prohibiting from speaking out against copyright laws and his belief in file sharing, based on this wacky, old federal law call the First Amendment. Those nutty judges.
I don't have too much to say about this case except that the amount of "damages" is clearly over-the-top, and that you can't get blood from a stone. To me, the spirit of statutory damages clause in the Copyright Act (allowing up to a $150K fine for one violation) was meant to stop commercial pirates and widespread distributors of materials covered by copyright; not grad students. Perhaps I am mistaken. The judge in the case, Nancy Gerter, urged Congress to consider changing the copyright law. I have mixed feelings about this myself; arguably, the courts have discretion to interpret the Act for digital distributions. On the other hand, have written law covering P2P and other new methods of file sharing could be helpful, but only if Congress truly digests how people are distributing music online and what truly violates not only the text, but the spirit of copyright protection. I'm not sure that Congress is there yet.
Tenebaum's attorney said they would be submitting a motion for a new trial by January 4th. God's speed, my friend.
Saturday, December 5, 2009
Apparently the Film Industry Isn't Learning from the Music Industry's Mistakes
A 22-year old girl who recorded 3 minutes of Twilight: New Moon could face 3 years in prison. Oh yes, you read that correctly. While in the movie, the young woman took out her video camera to capture moments from her friend's surprise birthday party... and a bit of the movie as well. As the theater has a "zero tolerance" taping policy, they called the police and the woman spent 2 nights in jail, and Illinois law permits up to 3 years, should the person be convicted of infringement.
Will this woman serve 3 years? Probably not. Will she even be prosecuted? Maybe. But only as an example and scapegoat designed to scare movie pirates just like the RIAA did for the music industry a couple of years ago. Dear Film Industry: it didn't work then, and it won' work now! The music industry, even stepped out as the guinea pig and PROVED that to everyone. Piracy is not down, suing doesn't work, yet this hard line is still being taken. This is unbelievable.
Do you think serious pirates are ever going to let you catch them?? Of course not; they're much more savvy, and would never deliver a shitty 3-minute clip of the movie. Duh. I mean, if anything, this girl was just a shitty pirate. I have a better idea - why don't you let this girl hone her craft, since she's obviously working on a big operation here, and go after her when she's got a couple more infringements under her belt. As least it would justify the cost to the taxpayers. Learn to properly scapegoat, for Christ's sake.
I'm sorry, I shouldn't be so sarcastic. The naivety just really irritates me. It's time to smarten up, think out of the box, and figure out a way to monetize film (and music) in a way that consumers will embrace. And in this specific instance, a little public policy goes a long way. This movie has made millions upon millions of dollars already. A 3-minute clip, even if uploaded and downloaded millions of times, is not going to take away or even replace that.
Will this woman serve 3 years? Probably not. Will she even be prosecuted? Maybe. But only as an example and scapegoat designed to scare movie pirates just like the RIAA did for the music industry a couple of years ago. Dear Film Industry: it didn't work then, and it won' work now! The music industry, even stepped out as the guinea pig and PROVED that to everyone. Piracy is not down, suing doesn't work, yet this hard line is still being taken. This is unbelievable.
Do you think serious pirates are ever going to let you catch them?? Of course not; they're much more savvy, and would never deliver a shitty 3-minute clip of the movie. Duh. I mean, if anything, this girl was just a shitty pirate. I have a better idea - why don't you let this girl hone her craft, since she's obviously working on a big operation here, and go after her when she's got a couple more infringements under her belt. As least it would justify the cost to the taxpayers. Learn to properly scapegoat, for Christ's sake.
I'm sorry, I shouldn't be so sarcastic. The naivety just really irritates me. It's time to smarten up, think out of the box, and figure out a way to monetize film (and music) in a way that consumers will embrace. And in this specific instance, a little public policy goes a long way. This movie has made millions upon millions of dollars already. A 3-minute clip, even if uploaded and downloaded millions of times, is not going to take away or even replace that.
Thursday, December 3, 2009
Report Says Vid Game Industry Best for Empowering Parents
Apparently I've got a theme going this week. I'll admit, sometimes I tend to get on my high-horse about video game content because I know the educational tools are there for parents to understand what they're kids are playing, and that the Video Game Industry gets a bad rap for no reasona. And I'm not the only one that thinks that, so HA!
Unlike movie rating systems, the ESRB ratings systems is optional. But how many games do you see without ratings? Um, a whole lot of NONE. Even "E" (for Everyone) gets plastered on the most family-friendly games. The article I cited earlier states in part:
"The computer and video game industry leads all others in ensuring its products are marketed appropriately and is the gold standard for others to follow," said Michael D. Gallagher, president and CEO of the ESA, the U.S. association representing computer and video game software publishers. "Today's FTC report is a strong acknowledgement and validation that industry-led self-regulation efforts are the best way to provide parents and retailers with the resources and support they need to keep our kids' entertainment experiences suitable."
There are some other fabulous nuggets and hard facts about how well the gaming industry and its retailers self-regulate. You know that, I'm not going to elaborate.. I've only got two words. BOO. YAH.
Unlike movie rating systems, the ESRB ratings systems is optional. But how many games do you see without ratings? Um, a whole lot of NONE. Even "E" (for Everyone) gets plastered on the most family-friendly games. The article I cited earlier states in part:
"The computer and video game industry leads all others in ensuring its products are marketed appropriately and is the gold standard for others to follow," said Michael D. Gallagher, president and CEO of the ESA, the U.S. association representing computer and video game software publishers. "Today's FTC report is a strong acknowledgement and validation that industry-led self-regulation efforts are the best way to provide parents and retailers with the resources and support they need to keep our kids' entertainment experiences suitable."
There are some other fabulous nuggets and hard facts about how well the gaming industry and its retailers self-regulate. You know that, I'm not going to elaborate.. I've only got two words. BOO. YAH.
Monday, November 30, 2009
Where the Heck Has Shannon Been, and Easter Eggs in Dragon Age. Yeah, THAT Easter Egg.
Well, apparently it's socially acceptable for me to say "Happy Holidays" to everybody now - and simply because "Happy Holidays" is PC. Little known fact about the Shanster...I am obsessed with Christmas. Although I haven't been blogging lately, I have been fanatical about listening to Christmas carols and secretly counting down the days until I can decorate.
I know lots of people hate people like me, and admitting this to me readers may cause me to read a few of you (i.e. 3-5 of you)... which would mean I would lose all of you. Shit, I've got to get better at math. Either way, it's out now - a scrooge, I am not.
But that's not the only "news" I have! What's mostly kept me away from my blogging is that I have been adjusting my job situation, and have started a firm with two of my colleagues (one of whom, Steven Shapiro, has a wonderful brand licensing blog here). Our name is still TBA, but the firm will still have the goal of serving "baby businesses," entrepreneurs and start ups, particularly in the areas of entertainment, brand and IP licensing, and complex corporate matters. So, lots of planning has been going on, but rest assured there are VERY exciting things to come!
Alright, enough about me. Let's talk about sex, baby. Namely, homosexual sex in Dragon Age: Origin. That's one hell of an Easter egg if I've ever heard of one. Now, this little "secret" has been circulating the interwebs for some time now, but I haven't read a whole lot of substantive commentary. It's almost like no one wants to say "that's what I'm talking about!" Well, perhaps that's not the way they feel, given that's it's two magical dudes going at it. Either way, this is my blog, so I'm going to share MY opinion on it (funny how that works out so nicely...).
Thanks to Mrs. Gore, all video games bear cover-ruining stamp telling parents the overall "level" of content in the game. Dragon Age is rated "T" for teen, which, in this day and age, parents are usually cool with purchasing this game for their ten-year olds. They may not, however, have gotten around to explaining homosexuality to their kids. Not cool (on two levels), however, a parent's choice. My guess is that the ESRB was not away of Bioware's hidden "extra content," in which case I think it's a little out of line. That being said, is your average 10-13 year old going to find this Easter egg? Probably not. But they could, to me, that possibility alone takes it up to "M," which doesn't stand for "Moms, buy this game for your ten year old."
Now, please don't get me wrong; this isn't about homosexuality - I would be saying the same thing if it was a hot female black mage and a muscle-rippling male warrior (woah, I got a little carried away on that one...). And I like to consider myself as socially "liberal" (dare I use the term) as they come. However, I believe that the ratings system is designed to educate parents - although, in my personal opinion, parents also need to engage in independent research before purchasing a game. Parents should be making educated choices about the content they expose their children to, and hidden sexual content makes that very difficult.
I completely respect developers and the hard work they put into making a visual masterpiece like Dragon Age. However, make sure you know your audience, or the focus will be on one tiny part of your masterpiece, and that should never be the case.
Editor's Note: My lovely fiance pointed out to me that Dragon Age is actually rated "M," not "T." I was looking at the PC version online when I was doing my research for this blog. Luckily, this serves simply to bolster my argument that parents should find out what's in games, and, in the case of Dragon Age, this SHOULD involve simply looking at the cover (which is a dragon made out of blood spatter) and the big "M" slapped on the front.
I know lots of people hate people like me, and admitting this to me readers may cause me to read a few of you (i.e. 3-5 of you)... which would mean I would lose all of you. Shit, I've got to get better at math. Either way, it's out now - a scrooge, I am not.
But that's not the only "news" I have! What's mostly kept me away from my blogging is that I have been adjusting my job situation, and have started a firm with two of my colleagues (one of whom, Steven Shapiro, has a wonderful brand licensing blog here). Our name is still TBA, but the firm will still have the goal of serving "baby businesses," entrepreneurs and start ups, particularly in the areas of entertainment, brand and IP licensing, and complex corporate matters. So, lots of planning has been going on, but rest assured there are VERY exciting things to come!
Alright, enough about me. Let's talk about sex, baby. Namely, homosexual sex in Dragon Age: Origin. That's one hell of an Easter egg if I've ever heard of one. Now, this little "secret" has been circulating the interwebs for some time now, but I haven't read a whole lot of substantive commentary. It's almost like no one wants to say "that's what I'm talking about!" Well, perhaps that's not the way they feel, given that's it's two magical dudes going at it. Either way, this is my blog, so I'm going to share MY opinion on it (funny how that works out so nicely...).
Thanks to Mrs. Gore, all video games bear cover-ruining stamp telling parents the overall "level" of content in the game. Dragon Age is rated "T" for teen, which, in this day and age, parents are usually cool with purchasing this game for their ten-year olds. They may not, however, have gotten around to explaining homosexuality to their kids. Not cool (on two levels), however, a parent's choice. My guess is that the ESRB was not away of Bioware's hidden "extra content," in which case I think it's a little out of line. That being said, is your average 10-13 year old going to find this Easter egg? Probably not. But they could, to me, that possibility alone takes it up to "M," which doesn't stand for "Moms, buy this game for your ten year old."
Now, please don't get me wrong; this isn't about homosexuality - I would be saying the same thing if it was a hot female black mage and a muscle-rippling male warrior (woah, I got a little carried away on that one...). And I like to consider myself as socially "liberal" (dare I use the term) as they come. However, I believe that the ratings system is designed to educate parents - although, in my personal opinion, parents also need to engage in independent research before purchasing a game. Parents should be making educated choices about the content they expose their children to, and hidden sexual content makes that very difficult.
I completely respect developers and the hard work they put into making a visual masterpiece like Dragon Age. However, make sure you know your audience, or the focus will be on one tiny part of your masterpiece, and that should never be the case.
Editor's Note: My lovely fiance pointed out to me that Dragon Age is actually rated "M," not "T." I was looking at the PC version online when I was doing my research for this blog. Luckily, this serves simply to bolster my argument that parents should find out what's in games, and, in the case of Dragon Age, this SHOULD involve simply looking at the cover (which is a dragon made out of blood spatter) and the big "M" slapped on the front.
Monday, October 26, 2009
Minimizing Risks in Start-Up Gaming Co's
I read a great article this morning (thanks, Google alerts)about Kalypso, a Baltimore start-up that just launched it's first game, Tropico 3. That's right, Tropico 3. How did Kalypso accomplish the amazing feat of creating the third game in a popular series as their first release? No, my friends, they did not rewrite the laws of physics.. they purchased the right to the series from Take Two, creators of GTA. You see, as the article points out, while the Tropico series has sold hundreds of thousands of copies worldwide (thanks in part, no doubt to both physical and downloadable sales on sites like Gametap & Yahoo! Games), it's still not profitable enough for Take Two to keep in its roster. Not when they have GTA (which sells millions of copies per release) and some of the best game developers in the biz; priorities = profit.
Now, that's not to say that Kalypso, who only opened their doors in June, don't have equally talented programmers and developers on their team. Quite to the contrary, I think this move was GENIUS for a start up, especially one in the cut-throat gaming industry. On the one hand, entrepreneurs "have no place to go but up," states Kalypso founder Deborah Tillet. But on the other hand, the risk of crashing and burning is higher, and of greater personal risk than it is with larger, established companies. So what better way to balance these interests than to purchase a more established IP? I touched on this topic a little while back, but it's certainly no secret that established IPs are an easier sell (and a better idea?) in this current economy. I applaude Kalypso for taking the leap and starting their own company @ a time when everyone is clinging to the known and the safe. I think purchasing the rights to an established title is a perfect & creative way to get on the map, and a chance for Kalypso to become truly innovative much quicker. Huzzah!
Now, that's not to say that Kalypso, who only opened their doors in June, don't have equally talented programmers and developers on their team. Quite to the contrary, I think this move was GENIUS for a start up, especially one in the cut-throat gaming industry. On the one hand, entrepreneurs "have no place to go but up," states Kalypso founder Deborah Tillet. But on the other hand, the risk of crashing and burning is higher, and of greater personal risk than it is with larger, established companies. So what better way to balance these interests than to purchase a more established IP? I touched on this topic a little while back, but it's certainly no secret that established IPs are an easier sell (and a better idea?) in this current economy. I applaude Kalypso for taking the leap and starting their own company @ a time when everyone is clinging to the known and the safe. I think purchasing the rights to an established title is a perfect & creative way to get on the map, and a chance for Kalypso to become truly innovative much quicker. Huzzah!
Thursday, October 22, 2009
I Be Popular: Music Panel Discussion Tonight @ DART Boston
Hey entertainers! Wow, this month has been filled with speaking engagements - it's nutty! Tonight, I am excited to be on the panel @ "Pokin' Holes," a DART Boston event at Vlora in Copley. Tonight, we'll be discussing the Fary & Fiend, a French company that has invented a touch-pad guitar pedal. What's their plan to break into the US market? Will Americans love it or hate it? Come out tonight to find out.... see you there!
Thursday, October 15, 2009
MySpace Tries to Get It's Brand Back... Good Luck.
I'm not going to lie; I jumped on the MySpace bandwagon when it was all the rage a few years ago. And as much as it kills me to admit it, I haven't deleted my account, and, to the best of my knowledge, MySpace hasn't either. There's something sacred in deleting a social network account or a blog.... I've got this mental block that it just seems "wrong." Either way, I log on every few months to get it another chance, and am constantly disappointed at the cess pool of social media laid out before mine eyes. MySpace is a complete disaster. It's covered in flashy, annoying ads that just scream "cheap!!!", and it's filled with unsavory characters. Tell me I'm wrong; I dare you. So how did MySpace get here? And can they fix it?
Apparently, they're going to try. According to that little blip, MySpace is attempting to get it's brand back my focusing more on music, videos and games.
I'm not really sure how this will help the brand recover. The issue wasn't necessarily content (although I've seen enough pics of people in their bathrooms trying to look sexy to last me a lifetime, thank you), but functionality and the AWFUL ads/spam. MySpace is still a place for music, and many bands and music professionals alike still swear you still need a MySpace page. I'm on the fence about this, because MySpace's search function is so band that it severs limited to ability of fans to FIND music that they might actually like. Instead, users are stuck fumbling around with random key words that MIGHT be the title of a band or song they like. For example, if I like metal, I should probably type in "Guitars of Death Steel," or "Apocalypse Babies" and hope for the best. There's no intuitive way to find music related to bands that you like. Sure, there are "genres," but how often do you look up a band you like and go "What the hell?? They're not [insert genre]!" Maybe I simply haven't played around with it enough to find the niche, but should I have to?
Moving on to videos and games, it's still going to be an uphill battle. YouTube has established itself as the top go-to for videos... what is MySpace's "hook" to top that? And what's the approach to gaming? Is is casual gaming a la Yahoo! Games? Or bigger, downloadable stuff a la Gametap? Either way, they're going to have to prove to users that not only have they cleaned up their brand (hurdle #1), but also that their services are BETTER than what's currently out there (hurdle #2). Can they do it? I'm not so sure, but I'm willing to hang on to m profile for a bit longer to find out.
Apparently, they're going to try. According to that little blip, MySpace is attempting to get it's brand back my focusing more on music, videos and games.
I'm not really sure how this will help the brand recover. The issue wasn't necessarily content (although I've seen enough pics of people in their bathrooms trying to look sexy to last me a lifetime, thank you), but functionality and the AWFUL ads/spam. MySpace is still a place for music, and many bands and music professionals alike still swear you still need a MySpace page. I'm on the fence about this, because MySpace's search function is so band that it severs limited to ability of fans to FIND music that they might actually like. Instead, users are stuck fumbling around with random key words that MIGHT be the title of a band or song they like. For example, if I like metal, I should probably type in "Guitars of Death Steel," or "Apocalypse Babies" and hope for the best. There's no intuitive way to find music related to bands that you like. Sure, there are "genres," but how often do you look up a band you like and go "What the hell?? They're not [insert genre]!" Maybe I simply haven't played around with it enough to find the niche, but should I have to?
Moving on to videos and games, it's still going to be an uphill battle. YouTube has established itself as the top go-to for videos... what is MySpace's "hook" to top that? And what's the approach to gaming? Is is casual gaming a la Yahoo! Games? Or bigger, downloadable stuff a la Gametap? Either way, they're going to have to prove to users that not only have they cleaned up their brand (hurdle #1), but also that their services are BETTER than what's currently out there (hurdle #2). Can they do it? I'm not so sure, but I'm willing to hang on to m profile for a bit longer to find out.
Tuesday, October 13, 2009
Creative Commons is the New Way to License Music
Hellloooooo fellow creatives! I'm coming to you live on a rainy, cold day in Boston... but never fear. Creative Commons shall brighten the mood. For those of you that aren't aware, Creative Commons is a nonprofit organization that uses an easy icon system to allow music users and other music makers to license music without having to ask the copyright owner every time. The entire site is beyond user-friendly, and there's a perfect video to describe how the system works.
Personally, I think this is an amazing system to promote creativity and a wonderfully streamlined way for artists to show, with simple pictures, exactly how they want folks to be able to use their music. It's completely voluntary, and any content owner can amend or withdraw their license at any time.
So why am I going on and on about this? Because Creative Commons is a nonprofit, which means it can't exist without the support of the folks that believe in its mission. I would highly encourage you to take just 5 minutes to understand CC and its mission, and if it resonates with you like it does with me, please consider a nominal donation. Think of it as an investment in the future of music, not just for you, but for everyone (awww! moment!).
Personally, I think this is an amazing system to promote creativity and a wonderfully streamlined way for artists to show, with simple pictures, exactly how they want folks to be able to use their music. It's completely voluntary, and any content owner can amend or withdraw their license at any time.
So why am I going on and on about this? Because Creative Commons is a nonprofit, which means it can't exist without the support of the folks that believe in its mission. I would highly encourage you to take just 5 minutes to understand CC and its mission, and if it resonates with you like it does with me, please consider a nominal donation. Think of it as an investment in the future of music, not just for you, but for everyone (awww! moment!).
Thursday, October 8, 2009
New Liberty Featured on Roadrunner Records Site!
Working with bands is hands-down my favorite part about being an entertainment attorney. I really admire the amazing stamina that band members show and the drive they have to succeed. And you know what? It's really freakin' difficult. It can be especially awful when you KNOW you and your bandmates have the will and the ability to succeed, and you just haven't been in the right place at the right time. Then, POOF! Someone recognizes your talent, and you're riding on a cloud to celebrate that accomplishment (as well you should!).
I am honored to represent a band by the name of New Liberty. To me, they have the whole package; not only is their music well put together and catchy, but their live performances are full of energy and personality. On top of that, they are some of the hardest working guys in the music business right now, and have the business-savvy and the determination that it takes to make it in this industry. They've been working tirelessly to attract the attention of labels and booking agents alike, and they're getting some great feedback. One of the best so far as has been an acknowledgment by Roadrunner Records, who have prominently featured New Liberty's song "Blue 42" on their A&R site. How do you get on their? Roadrunner reps have to dig your stuff - that's the ONLY way. So congrats, guys - and a huge shout out to Roadrunner for digging the music! Rock on.
I am honored to represent a band by the name of New Liberty. To me, they have the whole package; not only is their music well put together and catchy, but their live performances are full of energy and personality. On top of that, they are some of the hardest working guys in the music business right now, and have the business-savvy and the determination that it takes to make it in this industry. They've been working tirelessly to attract the attention of labels and booking agents alike, and they're getting some great feedback. One of the best so far as has been an acknowledgment by Roadrunner Records, who have prominently featured New Liberty's song "Blue 42" on their A&R site. How do you get on their? Roadrunner reps have to dig your stuff - that's the ONLY way. So congrats, guys - and a huge shout out to Roadrunner for digging the music! Rock on.
Stroke of Genuis: UK Antitrust Body Say Ticketmaster/LiveNation Merger May Hurt Competition
In an announcement that surprises... um... NO ONE...The UK Antitrust Body announced today that the Ticketmaster/LiveNation merger would stifle competition in Europe's concert and ticket market, and suggested alternatives that basically force the two to work separately. Thank. The. LORD! my question is: why has this situation proceeded as far as this? Why is the FTC still wavering on this and debating??
I'm sorry, but this situation just makes me so angry. Anyone can look around their city and see that nearly ALL the venues are ruled by LiveNation, which means indie bands can only get into a handful of small venues, many of which are just bars with a stage. There's no branding or genre-specific indie venues, which means getting repeat customers is difficult. In this economy, people will only spend money on luxury items like concerts tickets if they know what they're going to get; do you think teens and 20-somethings are going to take a risk on a band they haven't heard if that venue serves every genre? But I digress.
The point is, the music industry is imploding from the inside out, and the only way it can carry only successfully to the next generation is too allow the next generation (i.e. new/baby/indie acts) to thrive. They need access to venues and they need people at shows. No money = no equipment, no play. It's not rocket science.
I'm sorry, but this situation just makes me so angry. Anyone can look around their city and see that nearly ALL the venues are ruled by LiveNation, which means indie bands can only get into a handful of small venues, many of which are just bars with a stage. There's no branding or genre-specific indie venues, which means getting repeat customers is difficult. In this economy, people will only spend money on luxury items like concerts tickets if they know what they're going to get; do you think teens and 20-somethings are going to take a risk on a band they haven't heard if that venue serves every genre? But I digress.
The point is, the music industry is imploding from the inside out, and the only way it can carry only successfully to the next generation is too allow the next generation (i.e. new/baby/indie acts) to thrive. They need access to venues and they need people at shows. No money = no equipment, no play. It's not rocket science.
Wednesday, October 7, 2009
I'm Speaking on a Music Industry Panel - Sweet!
Attention all Boston Artists/Entertainers! I am honored to announce I will be speaking on a music industry panel on October 27th at Vlora Restaurant and Wine Bar in Copley Square on October 27th. The panel is being put on by the Boston Songwriting, Production and Performance Group, and will feature myself, music producer Evan Shapiro, and music industry marketing expert Scott Feldman. Topics will vary by expertise, and I will personally be addressing legal issues surrounding personal management agreements and music licensing/placement agreements. Details be found here:
http://www.meetup.com/The-Boston-Songwriting-Production-Performance-Group/calendar/11541024/
The event is FREE and is sure to be a good educational and networking opportunity. I hope you'll join me and help make this event a success.
http://www.meetup.com/The-Boston-Songwriting-Production-Performance-Group/calendar/11541024/
The event is FREE and is sure to be a good educational and networking opportunity. I hope you'll join me and help make this event a success.
Monday, September 28, 2009
I am the License King. I can do… ANYTHING
By: Steven Shapiro, Esq.
Licensing Folks, bear with me for a few lines because I’m going to talk law for a bit. “The operation won't take long and you'll feel much better in the morning.” –Jim Morrison, Celebration of the Lizard King
I had the pleasure of hearing University of Minnesota Law School’s Professor William McGeveran speak about Trademark Fair Use Reform. Basically, the idea of fair use in the trademark context is a defense to an infringement claim, where the defendant alleges she’s using a brand, but is NOT using it like a trademark (as a source identifier), but in a First Amendment-protected, expressive, non-source identifying manner.
So if the pop band Aqua wants to sing about being a Barbie girl in her Barbie world? Let her.
Unfortunately, no matter how good your trademark fair use defense may be, in order to get to the point where you can actually raise it, you have to slog through an entire likelihood of confusion, actual factual analysis of the use in front of a jury. End result: expressive use defenses are expensive and random, so many defendants roll over, rather than fight for their non-infringing expressive use.
McGeveran argues that there are some cases where an expressive use of a trademark is so clearly present, that it’s a no-brainer-- a question of law that on which a judge can rule immediately. These wouldn’t be a get out of jail free cards for ANY ol’ use dressed up as expressive. But some of the more obvious works that would otherwise be completely shut down could instead receive help early on to resolve their cases. He then went on to talk about trademark compliance departments and how entertainment folks have to clear rights anytime a cheerleader sticks her hand down a garbage disposal on Heroes or INSINKERATOR will sue them. He believed that his ‘safe harbor’ fair use categories could alleviate the need for such departments all together.
To his point about trademark compliance, I suggest that the cheese needs to be moved to a different part of the maze. There is a clear market for branded goods in creative works. The Play Pen doesn’t want you displaying its strip club in GTA: San Andreas? Okay. Follow TV and films lead: there are THOUSANDS of gentleman’s clubs that would pay hand over first for that kind of brand exposure.
Do small and lean entertainment companies have product placement departments that can capitalize on those ancillary revenue dollars? Probably not. So how can these companies use trademarks for a reasonable fee? Let’s look across the fence to our copyright folks and their blanket licenses. One can receive certain rights to ASCAP’s entire library of 8.5 million+ songs for a standard rate. Well, why not have a similar collective that provides compensation to licensors for expressive use of their brands?
DISCLAIMERS:
There would need to be incredibly strict quality and brand message guidelines as to what can and cannot be done with each individual brand/trademark.
The licensor would need some kind of right of approval that does not exist in the ASCAP context because of the nature of trademark acquiescence and the realities of brand bibles.
Such a collective would probably be of most interest to less iconic brands.
I do not suggest that this is a perfect model for every situation or even a perfect model for any situation! But such a collective may allow for more efficient implementation of creative and targeted ad dollars. From the creatives’ perspective, instead of the realities of paying cautionary dollars to avoid paying litigation dollars, this might allow cash flows to come into a content-creator’s company in exchange for access to goods that may help them express their story more effectively by aligning with a licensor’s brand message with very little of the intensive legwork.
"Los Angeles, California has the best landscape and climate, but New York has the grooviest people." –Jim Morrison, Celebration of the Lizard King
Licensing Folks, bear with me for a few lines because I’m going to talk law for a bit. “The operation won't take long and you'll feel much better in the morning.” –Jim Morrison, Celebration of the Lizard King
I had the pleasure of hearing University of Minnesota Law School’s Professor William McGeveran speak about Trademark Fair Use Reform. Basically, the idea of fair use in the trademark context is a defense to an infringement claim, where the defendant alleges she’s using a brand, but is NOT using it like a trademark (as a source identifier), but in a First Amendment-protected, expressive, non-source identifying manner.
So if the pop band Aqua wants to sing about being a Barbie girl in her Barbie world? Let her.
Unfortunately, no matter how good your trademark fair use defense may be, in order to get to the point where you can actually raise it, you have to slog through an entire likelihood of confusion, actual factual analysis of the use in front of a jury. End result: expressive use defenses are expensive and random, so many defendants roll over, rather than fight for their non-infringing expressive use.
McGeveran argues that there are some cases where an expressive use of a trademark is so clearly present, that it’s a no-brainer-- a question of law that on which a judge can rule immediately. These wouldn’t be a get out of jail free cards for ANY ol’ use dressed up as expressive. But some of the more obvious works that would otherwise be completely shut down could instead receive help early on to resolve their cases. He then went on to talk about trademark compliance departments and how entertainment folks have to clear rights anytime a cheerleader sticks her hand down a garbage disposal on Heroes or INSINKERATOR will sue them. He believed that his ‘safe harbor’ fair use categories could alleviate the need for such departments all together.
To his point about trademark compliance, I suggest that the cheese needs to be moved to a different part of the maze. There is a clear market for branded goods in creative works. The Play Pen doesn’t want you displaying its strip club in GTA: San Andreas? Okay. Follow TV and films lead: there are THOUSANDS of gentleman’s clubs that would pay hand over first for that kind of brand exposure.
Do small and lean entertainment companies have product placement departments that can capitalize on those ancillary revenue dollars? Probably not. So how can these companies use trademarks for a reasonable fee? Let’s look across the fence to our copyright folks and their blanket licenses. One can receive certain rights to ASCAP’s entire library of 8.5 million+ songs for a standard rate. Well, why not have a similar collective that provides compensation to licensors for expressive use of their brands?
DISCLAIMERS:
There would need to be incredibly strict quality and brand message guidelines as to what can and cannot be done with each individual brand/trademark.
The licensor would need some kind of right of approval that does not exist in the ASCAP context because of the nature of trademark acquiescence and the realities of brand bibles.
Such a collective would probably be of most interest to less iconic brands.
I do not suggest that this is a perfect model for every situation or even a perfect model for any situation! But such a collective may allow for more efficient implementation of creative and targeted ad dollars. From the creatives’ perspective, instead of the realities of paying cautionary dollars to avoid paying litigation dollars, this might allow cash flows to come into a content-creator’s company in exchange for access to goods that may help them express their story more effectively by aligning with a licensor’s brand message with very little of the intensive legwork.
"Los Angeles, California has the best landscape and climate, but New York has the grooviest people." –Jim Morrison, Celebration of the Lizard King
Wednesday, September 23, 2009
Audissey Guides Gets Props from Forbes! VOTE!
Hi folks! I just love it when our customers achieve success in their businesses and invite us to share in that success. One of our customers, Audissey Guides, has been selected as a semi-finalist in Forbes' Boost Your Business Contest. Can I get a WOOT WOOT?? Audissey Guides is pretty much owns, I won't lie; they works with museums, towns and other places to put together audio tours for your iPod. Each tour is completely unique and has you interacting with the environment; not merely hearing about it. Interactive entertainment, anyone? Kick ass.
So, as entrepreneurs, want do we do for each other? We VOTE. So do it, yo! And a little secret? You can vote once for each email address you have... sneaky...! Have an amazing day, entertainers.
So, as entrepreneurs, want do we do for each other? We VOTE. So do it, yo! And a little secret? You can vote once for each email address you have... sneaky...! Have an amazing day, entertainers.
Friday, September 18, 2009
Greed or Fairness?: Collecting Royalties on 30-second Clips
Hello readers! After a restful vacation in Florida, I am back and ready to take my rightful place on the self-proclaimed soap box that is my blog. Today's topic covers a post on Mashable written by Barb Dybwad entitled "Greed: Music Industry Wants Royalties on 30-Second Previews and TV Downloads." I would invite you to read her article for her take on the situation, but one of the questions presented it whether an MP3 is a "performance" of a song for licensing purposes. Now, I can't help but read in between the lines at the more equitable question presented as well: is it "fair" for PROs (Performance Rights Organizations) to ask for licensing monies for "preview" clips?
First and foremost, I'll get my opinion about performances out of the way, which will probably piss some folks off. I do believe that 30-second clips are streaming, as as any MP3s. From a legal point of view, there is no difference between me clicking "play" on iTunes (or Napster, to which I'm a long-time subscriber) or turning on the radio. If anything, it's MORE of a performance because I'm dictating what gets performed. I may be sitting alone in my office, but iTunes and other download/streaming services offer those songs to the public. Each time one is played, it's a performance.
That being said, I don't think royalties for MP3 (or clips) should be handled the same way that traditional performance royalties are handled (namely, broadcast and live venue performances). The cost is simply too prohibitive for companies to pay each time one of their users downloads or streams a song. Sure, maybe iTunes can pay, but isn't free market about allowing other companies a chance too? Smaller digital distributors simply cannot afford these fees, and it effectively keeps them out of the market. That shouldn't be the case. Copyright reform in this area is certainly making progress, but I don't know that we're 100% there yet.
Related to this, I believe there's a public policy balance between copyright rights/law and the public enjoyment of music. You don't have to pay to test drive a car, but you certainly can't drive it home without paying for it. You don't have to pay to try on clothes, but you certainly can't walk out of the store with them on. Similarly, isn't there a crossroads where the right to get compensated has to bend to the right of the public to "try before you buy"? I believe that point is here @ the 30-second clip mark. I sincerely believe that most performing artists feel this way; they WANT people to hear their music! Should they get paid for that music? Of course. But licensing companies, especially PROs that supposedly have the interests of artists in mind, should recognize when the need to get compensated is overshadowing the greater good (and potentially bigger profits for artists in the long run).
First and foremost, I'll get my opinion about performances out of the way, which will probably piss some folks off. I do believe that 30-second clips are streaming, as as any MP3s. From a legal point of view, there is no difference between me clicking "play" on iTunes (or Napster, to which I'm a long-time subscriber) or turning on the radio. If anything, it's MORE of a performance because I'm dictating what gets performed. I may be sitting alone in my office, but iTunes and other download/streaming services offer those songs to the public. Each time one is played, it's a performance.
That being said, I don't think royalties for MP3 (or clips) should be handled the same way that traditional performance royalties are handled (namely, broadcast and live venue performances). The cost is simply too prohibitive for companies to pay each time one of their users downloads or streams a song. Sure, maybe iTunes can pay, but isn't free market about allowing other companies a chance too? Smaller digital distributors simply cannot afford these fees, and it effectively keeps them out of the market. That shouldn't be the case. Copyright reform in this area is certainly making progress, but I don't know that we're 100% there yet.
Related to this, I believe there's a public policy balance between copyright rights/law and the public enjoyment of music. You don't have to pay to test drive a car, but you certainly can't drive it home without paying for it. You don't have to pay to try on clothes, but you certainly can't walk out of the store with them on. Similarly, isn't there a crossroads where the right to get compensated has to bend to the right of the public to "try before you buy"? I believe that point is here @ the 30-second clip mark. I sincerely believe that most performing artists feel this way; they WANT people to hear their music! Should they get paid for that music? Of course. But licensing companies, especially PROs that supposedly have the interests of artists in mind, should recognize when the need to get compensated is overshadowing the greater good (and potentially bigger profits for artists in the long run).
Tuesday, September 1, 2009
The Power of He-Man and Branding for Adults
By: Steven Shapiro, Esq.
I had the pleasure of growing up a child consumer in the 1980s. It’s POSSIBLE that I might be a little biased here, but there was no better time to BE a child consumer than the Reagan years. Watching 80s Cartoons was like peering through the window of KBToys… if KBToys still had window through which you could peer. And we loved every minute of it.
G.I.Joe. Bionic Six. Transformers. Thundercats (HOOOO!). I could go on, but let’s not allow nostalgia to derail us. Otherwise, we’ll be making vroom noises on our office floors with our M.A.S.K. car/tanks and motorcycle/helicopters.
As you can see, I dabbled in many a horizontally integrated sandbox growing up. But Masters of the Universe was by far my favorite property. Every way that you could interact with a brand, I bought into Masters of the Universe. I watched the cartoon show religiously. I had the clothes. I ate the cereal. I slept on the sheets. And of course, I collected every single action figure that came out. Especially the ones that transformed into boulders.
I propose that the licensing industry has matured with us over the past twenty+ years. 80s Saturday Morning Cartoon properties like He-Man paved the way for our current acceptance of adult licensed products in an unprecedented way. I use the word ‘adult’ to mean just about anything that isn’t an action/adventure cartoon. No longer does a brand’s reach expand to ancillary products only in the realm of child products. As adults, we might watch our favorite cook on the Food Network, but we don’t stop there. How about buying some Food Network brand kitchenware? Or, what if USA Today is your go-to newspaper when you’re traveling? Check out what other travel amenities USA Today has to offer in its airport convenience stores. Few of us have been formally trained in cross-platform brand productization, but most of us dig connections between an entertainment source and a given product line. Why? Because Saturday Morning Cartoons made us more receptive to those kinds of connections!
So in parting, I leave you with Stonedar… rockin’ out: http://www.youtube.com/watch?v=NmQTfNuZTyc
I had the pleasure of growing up a child consumer in the 1980s. It’s POSSIBLE that I might be a little biased here, but there was no better time to BE a child consumer than the Reagan years. Watching 80s Cartoons was like peering through the window of KBToys… if KBToys still had window through which you could peer. And we loved every minute of it.
G.I.Joe. Bionic Six. Transformers. Thundercats (HOOOO!). I could go on, but let’s not allow nostalgia to derail us. Otherwise, we’ll be making vroom noises on our office floors with our M.A.S.K. car/tanks and motorcycle/helicopters.
As you can see, I dabbled in many a horizontally integrated sandbox growing up. But Masters of the Universe was by far my favorite property. Every way that you could interact with a brand, I bought into Masters of the Universe. I watched the cartoon show religiously. I had the clothes. I ate the cereal. I slept on the sheets. And of course, I collected every single action figure that came out. Especially the ones that transformed into boulders.
I propose that the licensing industry has matured with us over the past twenty+ years. 80s Saturday Morning Cartoon properties like He-Man paved the way for our current acceptance of adult licensed products in an unprecedented way. I use the word ‘adult’ to mean just about anything that isn’t an action/adventure cartoon. No longer does a brand’s reach expand to ancillary products only in the realm of child products. As adults, we might watch our favorite cook on the Food Network, but we don’t stop there. How about buying some Food Network brand kitchenware? Or, what if USA Today is your go-to newspaper when you’re traveling? Check out what other travel amenities USA Today has to offer in its airport convenience stores. Few of us have been formally trained in cross-platform brand productization, but most of us dig connections between an entertainment source and a given product line. Why? Because Saturday Morning Cartoons made us more receptive to those kinds of connections!
So in parting, I leave you with Stonedar… rockin’ out: http://www.youtube.com/watch?v=NmQTfNuZTyc
Monday, August 31, 2009
Looks like Mickey Just Ate Spiderman...
Now there's a mental picture that should last you the rest of the afternoon, huh? It's not as carnal as it sounds though; Disney announced today that it is acquiring Marvel Entertainment Inc. and ALL of it's over 5,000 characters.
Some of you may be thinking "So what? It's just another deal." Well, I'm taking this one personally, so watch it. First of all, Mr. Shapiro is a huge comic book and Marvel fan... so in weird way I get to shove this into his face. My company ate yours, nah-nahnah-nahnaaaaaah-nah. (Sorry, momentary lapse in maturity..) Secondly, I am a HUGE Disney fan; I grew up in Florida, and my ties to the magic of Disney run deep. I take my Disney experiences very seriously, and any change in the "magic" of the franchise is a big deal to me. Some of you are probably thinking I'm completely out of my gourd right now, but if you're not a Disney fanatic, it's difficult to explain. If you are, you get exactly what I'm saying.
That said, what does this mean for Disney's brand? Namely, the theme parks - Does this mean we'll be seeing Spiderman @ Disney World now? And tied into that, what about Marvel's section of Island's of Adventure? That's a Universal theme park! So are my friends going to see Spiderman in Disney World AND Universal? That's a branding disaster, right there.
I understand there are a myriad of other branding outlets that can be explored to exploit the property while the theme park aspect gets wrapped up. EDITORS NOTE: My understanding is that the licensing deals currently in place will remain in place until they expire. But my point is that with such monumental brand and trademark staples, the integration into a new (larger?) brand such as Disney is sure to be full of interesting twists and turns. We shall see...
Some of you may be thinking "So what? It's just another deal." Well, I'm taking this one personally, so watch it. First of all, Mr. Shapiro is a huge comic book and Marvel fan... so in weird way I get to shove this into his face. My company ate yours, nah-nahnah-nahnaaaaaah-nah. (Sorry, momentary lapse in maturity..) Secondly, I am a HUGE Disney fan; I grew up in Florida, and my ties to the magic of Disney run deep. I take my Disney experiences very seriously, and any change in the "magic" of the franchise is a big deal to me. Some of you are probably thinking I'm completely out of my gourd right now, but if you're not a Disney fanatic, it's difficult to explain. If you are, you get exactly what I'm saying.
That said, what does this mean for Disney's brand? Namely, the theme parks - Does this mean we'll be seeing Spiderman @ Disney World now? And tied into that, what about Marvel's section of Island's of Adventure? That's a Universal theme park! So are my friends going to see Spiderman in Disney World AND Universal? That's a branding disaster, right there.
I understand there are a myriad of other branding outlets that can be explored to exploit the property while the theme park aspect gets wrapped up. EDITORS NOTE: My understanding is that the licensing deals currently in place will remain in place until they expire. But my point is that with such monumental brand and trademark staples, the integration into a new (larger?) brand such as Disney is sure to be full of interesting twists and turns. We shall see...
Tuesday, August 25, 2009
University of Miami to Release Study About Product Branding & Placement
As a preface, let me just say that some of you may have noticed we've been doing a little "rebranding" of our own over here @ The Headlining Act. That's because I (Shannon Jamieson) specialize in what is usually referred to as "Entertainment Law," namely dealing with copyright in the music and video game industries. In contrast, my colleague and increasingly common guest blogger, Steven Shapiro, specializes in branding and brand licensing, more along the lines of trademark licenses. As such, we've been "mashing" the two areas of entertainment and licensing together to provide readers with a more expansive view of intellectual property in entertainment - going beyond music, film, etc. and into areas like branding partnerships, apparel, and maybe even toys. Hopefully you're enjoying the changes here as much as we are. Now on the the meat and potatoes of this post...
My alma mater, the University of Miami, has just completed a study about branding placement on products and how that placement influences both how a consumer percieves a product and their decision whether or not to purchase it. I would definitely like you to read the article itself, but basically the idea is that consumers view brand placement that is higher on products to be "light" products or branding; products that are healthier, lighter and lower in fat. In contrast, consumers prefer "heavier" products, like stews and meats, to have their branding on the bottom part of the packaging. The study will be published in the December 2009 issues of the Journal of Marketing Research.
Interesting, no?? Maybe that's the branding nerd in us coming out. Just another reason for me to over analyze branding (which I'm totally cool with doing).
My alma mater, the University of Miami, has just completed a study about branding placement on products and how that placement influences both how a consumer percieves a product and their decision whether or not to purchase it. I would definitely like you to read the article itself, but basically the idea is that consumers view brand placement that is higher on products to be "light" products or branding; products that are healthier, lighter and lower in fat. In contrast, consumers prefer "heavier" products, like stews and meats, to have their branding on the bottom part of the packaging. The study will be published in the December 2009 issues of the Journal of Marketing Research.
Interesting, no?? Maybe that's the branding nerd in us coming out. Just another reason for me to over analyze branding (which I'm totally cool with doing).
Wednesday, August 19, 2009
Krusty the Clown Might be on to Something
By: Anna Bielejec
In the world of licensing, The Simpsons- related licensed merchandise has generated lots of money. Lots and lots of money. While expressing his desire to keep the commercial licensing context fresh, The Simpsons’ creator Matt Groening told USAToday, “The Simpsons have an advantage over rival shows when it comes to putting the characters into a commercial context.” Expanding on that note, Groening explained that because “most of the show’s residents in Springfield are eager to get rich quick, the real-world merchandising can become part of the gag.” What a cool thought!
Take Krusty the Clown, for example, and the brilliant way The Simpsons website displays Krusty the Clown’s entrepreneurial drive. Born one Herschel Krustofski, Krusty the Clown has raked in the green from the fact that he, as what Groening described, “shamelessly merchandises any product, no matter how shoddy.” On the show, Krusty the Clown’s licensing of the Krusty brand ranges from the “Krustyburger Meat-Flavored Sandwich” and “Krusty’s Non-Toxic Kalogne (For the smell of the Big Top),” to the tasty “Krusty Brand Pork Squeezin’s.” Adding to his portfolio, and wallet, Krusty the Clown also licensed the Krusty brand for “Krustylu Studios,” the “Krustyland Amusement Park,” as well as “Kamp Krusty.” Although his frequent endorsement of “I heartily endorse this event or product,” screams of shamelessness, Krusty the Clown’s modus operandi is broadly on point: carefully executed, brand licensing can generate a laundry list of benefits.
By leveraging a company’s brand name, logo, mark or licensable asset, licensing agreements grant a manufacturer the right to develop, market and sell approved products to approved retailers in return for payment (typically a royalty and guarantee based on wholesale sales as specified in the agreement). According to the Manhattan-based brand licensing agency Perpetual Licensing, brand owners in the real-world can, like Krusty the Clown, license their brand to attract new consumers, build enjoyment of the brand, reinforce the brand’s message, enhance the brand image while growing the value of the brand, protect the brand’s intellectual property rights, and generate revenue from both increased sales of the licensor’s original product as well as royalties from the sale of the licensed product. Even better, the brand licensing agreement can be a win-win situation. By gaining the opportunity to attract new customers, open previously unexplored retail avenues, increase sales through wider assortment of products, and generate revenue from the sale of the licensed product, manufacturers (or “licensees”) can also reap the benefits.
The benefits of licensing one’s brand and the supposed financial success of Krusty the Clown, however, do not negate the presence of potential licensing risks. These risks, and the likely dilution of the Krusty brand caused by Krusty the Clown’s greedy, albeit apathetic, licensing approach is a whole other issue… to be aired on a whole other episode.
In the world of licensing, The Simpsons- related licensed merchandise has generated lots of money. Lots and lots of money. While expressing his desire to keep the commercial licensing context fresh, The Simpsons’ creator Matt Groening told USAToday, “The Simpsons have an advantage over rival shows when it comes to putting the characters into a commercial context.” Expanding on that note, Groening explained that because “most of the show’s residents in Springfield are eager to get rich quick, the real-world merchandising can become part of the gag.” What a cool thought!
Take Krusty the Clown, for example, and the brilliant way The Simpsons website displays Krusty the Clown’s entrepreneurial drive. Born one Herschel Krustofski, Krusty the Clown has raked in the green from the fact that he, as what Groening described, “shamelessly merchandises any product, no matter how shoddy.” On the show, Krusty the Clown’s licensing of the Krusty brand ranges from the “Krustyburger Meat-Flavored Sandwich” and “Krusty’s Non-Toxic Kalogne (For the smell of the Big Top),” to the tasty “Krusty Brand Pork Squeezin’s.” Adding to his portfolio, and wallet, Krusty the Clown also licensed the Krusty brand for “Krustylu Studios,” the “Krustyland Amusement Park,” as well as “Kamp Krusty.” Although his frequent endorsement of “I heartily endorse this event or product,” screams of shamelessness, Krusty the Clown’s modus operandi is broadly on point: carefully executed, brand licensing can generate a laundry list of benefits.
By leveraging a company’s brand name, logo, mark or licensable asset, licensing agreements grant a manufacturer the right to develop, market and sell approved products to approved retailers in return for payment (typically a royalty and guarantee based on wholesale sales as specified in the agreement). According to the Manhattan-based brand licensing agency Perpetual Licensing, brand owners in the real-world can, like Krusty the Clown, license their brand to attract new consumers, build enjoyment of the brand, reinforce the brand’s message, enhance the brand image while growing the value of the brand, protect the brand’s intellectual property rights, and generate revenue from both increased sales of the licensor’s original product as well as royalties from the sale of the licensed product. Even better, the brand licensing agreement can be a win-win situation. By gaining the opportunity to attract new customers, open previously unexplored retail avenues, increase sales through wider assortment of products, and generate revenue from the sale of the licensed product, manufacturers (or “licensees”) can also reap the benefits.
The benefits of licensing one’s brand and the supposed financial success of Krusty the Clown, however, do not negate the presence of potential licensing risks. These risks, and the likely dilution of the Krusty brand caused by Krusty the Clown’s greedy, albeit apathetic, licensing approach is a whole other issue… to be aired on a whole other episode.
Tuesday, August 18, 2009
Can “Place Branding” Truly Change a City’s Image?
By: Anna Bielejec
Take New Orleans. “Forever New Orleans” represents the aggressive international branding campaign that New Orleans launched in an effort to dispel lingering concerns about the conditions of the city post Hurricane Katrina. Print and online ads, billboards, television commercials, and a thirty-minute prime time travel show, all funded by U.S. taxpayers, combined to form the multimillion-dollar campaign that was specifically designed to “overcome misperceptions” about New Orleans. According to Lucas Conley, author of the book OBD: Obsessive Branding Disorder, snappy taglines such as “Soul is Waterproof” and “New Orleans Is Open. To Just About Anything,” were two such examples of the city’s “desperate” efforts to “rebrand the city” and revive tourism.
Although the tired clichés of what one of Conley’s New Orleans natives described as “buying beads, drinking hurricane cocktails and taking home a poster of a man playing a trumpet under a streetlight” frustrates and disgusts many of the native residents, the clichéd efforts of a post-Katrina New Orleans suffering overwhelming crime rates struggling to rebuild are becoming, what Conley believes, “commonplace occurrence” for towns, cities, states, and countries in the aftermath of disaster. One frustrated native New Orleans resident in Conley’s book argues “the idea that the city’s inherent identity can be packaged up and sold misses the reality of what’s going on,” later summarizing “you can’t brand away a bunch of murders.”
So, the thought of branding and rebranding an actual place raises a fair amount of questions. Does a rebranding campaign’s inability to fix staggering crime rates mean that city officials should absolve all attempts to rebrand their city in an effort to repair the city’s image in the wake of a disaster? That doesn’t seem right, does it? Perhaps the money for an aggressive rebranding campaign should be considered well spent if a city’s image is merely improved? If that were the case, how would such “improvement” be measured? And furthermore, what would the appropriate threshold be for gauging whether a particular amount of improvement was indeed worthy of a multimillion-dollar rebranding campaign? The truth is, clearly, that I don’t know. Regardless, the reach of branding from toothpaste to Tulsa and what Conley describes as “its desirability as a tool to enhance and sell ideas,” continues to amaze me.
Take New Orleans. “Forever New Orleans” represents the aggressive international branding campaign that New Orleans launched in an effort to dispel lingering concerns about the conditions of the city post Hurricane Katrina. Print and online ads, billboards, television commercials, and a thirty-minute prime time travel show, all funded by U.S. taxpayers, combined to form the multimillion-dollar campaign that was specifically designed to “overcome misperceptions” about New Orleans. According to Lucas Conley, author of the book OBD: Obsessive Branding Disorder, snappy taglines such as “Soul is Waterproof” and “New Orleans Is Open. To Just About Anything,” were two such examples of the city’s “desperate” efforts to “rebrand the city” and revive tourism.
Although the tired clichés of what one of Conley’s New Orleans natives described as “buying beads, drinking hurricane cocktails and taking home a poster of a man playing a trumpet under a streetlight” frustrates and disgusts many of the native residents, the clichéd efforts of a post-Katrina New Orleans suffering overwhelming crime rates struggling to rebuild are becoming, what Conley believes, “commonplace occurrence” for towns, cities, states, and countries in the aftermath of disaster. One frustrated native New Orleans resident in Conley’s book argues “the idea that the city’s inherent identity can be packaged up and sold misses the reality of what’s going on,” later summarizing “you can’t brand away a bunch of murders.”
So, the thought of branding and rebranding an actual place raises a fair amount of questions. Does a rebranding campaign’s inability to fix staggering crime rates mean that city officials should absolve all attempts to rebrand their city in an effort to repair the city’s image in the wake of a disaster? That doesn’t seem right, does it? Perhaps the money for an aggressive rebranding campaign should be considered well spent if a city’s image is merely improved? If that were the case, how would such “improvement” be measured? And furthermore, what would the appropriate threshold be for gauging whether a particular amount of improvement was indeed worthy of a multimillion-dollar rebranding campaign? The truth is, clearly, that I don’t know. Regardless, the reach of branding from toothpaste to Tulsa and what Conley describes as “its desirability as a tool to enhance and sell ideas,” continues to amaze me.
Monday, August 17, 2009
Line Your Intellectual Property Ducks in a Row to Avoid a Rebranding Earthquack
By: Anna Bielejec
When it comes to rebranding, grouchy Aunt Sally’s go-to advice of speaking with an attorney couldn’t be better. Furthermore, assessing the new brand’s trademark and its ability to become registered might be the best place to start. For starters, not all marks are capable of being registered. You see, although formal trademark registration is unnecessary for using a mark in conjunction with the trademark symbol (™), non-registered marks may raise problems down the road if a brand owner decides to sell or otherwise commercialize his business through a franchise or licensing agreement. Because trademark registration provides real evidence of ownership, it is the best tool at guarding against others’ misuse and challenges. The moral of the story? In preparation for a rebranding bonanza, make sure your intellectual property is sufficiently protected. Plain and simple. Know the steps of what it will take to register your new mark/s as well as any registered marks that offer a potential threat, and protect yourself against the many obstacles that may arise. Line your IP ducks in a row to build a legal infrastructure that will weather the various dangers of infringement and you’ll avoid a devastating rebranding “earthquack.”
When it comes to rebranding, grouchy Aunt Sally’s go-to advice of speaking with an attorney couldn’t be better. Furthermore, assessing the new brand’s trademark and its ability to become registered might be the best place to start. For starters, not all marks are capable of being registered. You see, although formal trademark registration is unnecessary for using a mark in conjunction with the trademark symbol (™), non-registered marks may raise problems down the road if a brand owner decides to sell or otherwise commercialize his business through a franchise or licensing agreement. Because trademark registration provides real evidence of ownership, it is the best tool at guarding against others’ misuse and challenges. The moral of the story? In preparation for a rebranding bonanza, make sure your intellectual property is sufficiently protected. Plain and simple. Know the steps of what it will take to register your new mark/s as well as any registered marks that offer a potential threat, and protect yourself against the many obstacles that may arise. Line your IP ducks in a row to build a legal infrastructure that will weather the various dangers of infringement and you’ll avoid a devastating rebranding “earthquack.”
Friday, August 14, 2009
The Word of Mouth Marketing Debate is as Entertaining as Sony’s Awesome New Bravia LCD Digital Color TV
By: Anna Bielejec
According to the Word of Mouth Marketing Association (not-so-shockingly nicknamed “WOMMA”), word of mouth marketing is a legitimate marketing avenue that “empowers people to share their experiences, by harnessing the voice of the customer for the good of the brand.” So what is it exactly? According to the WOMMA website, it’s a type of marketing that focuses on consumer-generated and social media platforms involving buzz, viral, community, and influencer marketing techniques, as well as brand blogging. Visit http://jcrewaficionada.blogspot.com and you’ll quickly recognize what this means. Is it really, as the WOMMA describes, “the only marketing that… pushes marketers to create better products and provide genuine satisfaction?” Or does it raise a red flag by blurring the division between legitimate transparent marketing and deceptive stealth marketing? After all, J.Crew’s attempt to make the blog appear like the work of a devoted J.Crew fan that lovingly maintains her blog as the “place to discuss all aspects of J.Crew,” is completely unconvincing.
Stealth marketing really made the headlines with a 2006 Sony Ericsson campaign that placed T68i cell phones in the hands of 60 paid models with directions to pose as tourists and ask passer-bys to take their picture using the phone. Commercial Alert, a group that dedicates itself to “protecting communities from commercialism,” asked the Federal Trade Commission to launch an investigation into this type of marketing practice. Believing “buzz marketers who fail to disclose that they have been enlisted to promote products are perpetrating large-scale deception upon consumers,” Commercial Alert found the Sony campaign to be deceptive, intrusive, and something that was “designed to take advantage of the kindness of strangers, and erode the bonds of trust.”
So how different is word of mouth marketing from stealth marketing? My opinion, in the form of a fun analogy, goes like this: word of mouth marketing is to stealth marketing, as sweet potato pie is to (blank). If you’ve filled in the “(blank)” with the words “pumpkin” and “pie,” then you are correct. Sweet potato pie is not really that different from pumpkin pie. You can taste the difference and they have different names, but they’re both basically the same tasty dark-orangey-colored sweet pie that pairs amazingly well with whipped cream. Word of mouth marketing supposedly uses “creative techniques to encourage communication,” but I don’t find it all that different from the sneaky techniques used in stealth marketing. The “translucent” communication utilized by both types of marketing mirrors the color, texture and whipped cream on both the pies. It bridges the alleged differences and makes them appear far more similar than certain organizations (like the WOMMAs or… sales-driven bakeries of the world) would like us to believe.
Is it possible for a targeted individual in a word of mouth marketing arrangement to be unaware of the source of a consumer’s product “praise?” I believe it is. So remind me again, WOMMA. This is less misleading from the abhorrent stealth marketing, how?
According to the Word of Mouth Marketing Association (not-so-shockingly nicknamed “WOMMA”), word of mouth marketing is a legitimate marketing avenue that “empowers people to share their experiences, by harnessing the voice of the customer for the good of the brand.” So what is it exactly? According to the WOMMA website, it’s a type of marketing that focuses on consumer-generated and social media platforms involving buzz, viral, community, and influencer marketing techniques, as well as brand blogging. Visit http://jcrewaficionada.blogspot.com and you’ll quickly recognize what this means. Is it really, as the WOMMA describes, “the only marketing that… pushes marketers to create better products and provide genuine satisfaction?” Or does it raise a red flag by blurring the division between legitimate transparent marketing and deceptive stealth marketing? After all, J.Crew’s attempt to make the blog appear like the work of a devoted J.Crew fan that lovingly maintains her blog as the “place to discuss all aspects of J.Crew,” is completely unconvincing.
Stealth marketing really made the headlines with a 2006 Sony Ericsson campaign that placed T68i cell phones in the hands of 60 paid models with directions to pose as tourists and ask passer-bys to take their picture using the phone. Commercial Alert, a group that dedicates itself to “protecting communities from commercialism,” asked the Federal Trade Commission to launch an investigation into this type of marketing practice. Believing “buzz marketers who fail to disclose that they have been enlisted to promote products are perpetrating large-scale deception upon consumers,” Commercial Alert found the Sony campaign to be deceptive, intrusive, and something that was “designed to take advantage of the kindness of strangers, and erode the bonds of trust.”
So how different is word of mouth marketing from stealth marketing? My opinion, in the form of a fun analogy, goes like this: word of mouth marketing is to stealth marketing, as sweet potato pie is to (blank). If you’ve filled in the “(blank)” with the words “pumpkin” and “pie,” then you are correct. Sweet potato pie is not really that different from pumpkin pie. You can taste the difference and they have different names, but they’re both basically the same tasty dark-orangey-colored sweet pie that pairs amazingly well with whipped cream. Word of mouth marketing supposedly uses “creative techniques to encourage communication,” but I don’t find it all that different from the sneaky techniques used in stealth marketing. The “translucent” communication utilized by both types of marketing mirrors the color, texture and whipped cream on both the pies. It bridges the alleged differences and makes them appear far more similar than certain organizations (like the WOMMAs or… sales-driven bakeries of the world) would like us to believe.
Is it possible for a targeted individual in a word of mouth marketing arrangement to be unaware of the source of a consumer’s product “praise?” I believe it is. So remind me again, WOMMA. This is less misleading from the abhorrent stealth marketing, how?
Thursday, August 13, 2009
Brand loyalty During a Down Economy and the Decision to Bypass Generic Cheese Curls
By: Anna Bielejec
While the economy has undoubtedly impacted the way in which consumers allocate their available monetary resources during a trip to the grocery store, the degree to which the consumers seem to be opening their wallets appears to depend less on price than it does on value. Los Angeles marketing analyst Wes Brown, says the variability of brand loyalty in a down economy depends on the product category. So while a large part of the grocery shoppers in times like these are willing to forgo loyalty to their snack-of-choice Cheetos Brand Cheese Puffs, a decision to splurge on a tasty brand name snack is far more likely to occur than a splurge in a pricier category of purchases on say, a fancy new king size, extra deep, pillow-top mattress. Furthermore, Wes Brown sees a bag of M&Ms as an indulgence that is well worth a consumer’s dime, on grounds that if everything else in your life sucks, why would you get rid of the one relatively low-cost thing you like?”
The fact that consumers are increasingly purchasing products that define their individual lifestyles is another reason consumers may not automatically be forgoing the pricier grocery products. Consumers who are unable to purchase all the products that match and enhance their desired organic, macrobiotic, and vegan lifestyles will engage in a trading game of sorts, where they will opt for generic private label goods in certain low interest categories to enjoy a higher standard of grocery “living” in the others.
To combat the threat of losing certain consumers, many household-name brands have begun executing value-driven marketing and rebranding campaigns. While Kraft instituted the “why Snackrifice” slogan, and Oscar Meyer Deli Fresh Meats rolled out the tagline “deli fresh, without the deli counter price,” Kool-Aid added “more smiles per gallon.” Also eager to boost its value “image,” Lean Cuisine recently introduced the phrase “we believe in food that’s good for you and good for your wallet.” In theory, the idea of boosting the perceived value of a product by changing its brand image makes sense. In practice, though, I would love to know how well it has actually worked.
Interestingly enough, there has been some debate over whether a company’s decision to creatively reimage its brand during an economic downturn is actually wise. While some marketing professionals believe this type of brand reimaging is a smart decision because it tracks to consumer expectations, others disagree. Marketing guru Miles Smith of Pittsburgh’s Smith Brothers Agency believes that companies should exercise caution before making the decision to alter the value perception of its well-known brand, on grounds that doing so could “discount your brand into being considered a commodity, and train consumers to expect a sale everyday.” So where is the balance between it all? What should a company do with its brand during economic upheaval? I’m going to leave that question for the marketing pros, end this blog, and go buy myself a bag of Cheetos. I’ve earned it.
While the economy has undoubtedly impacted the way in which consumers allocate their available monetary resources during a trip to the grocery store, the degree to which the consumers seem to be opening their wallets appears to depend less on price than it does on value. Los Angeles marketing analyst Wes Brown, says the variability of brand loyalty in a down economy depends on the product category. So while a large part of the grocery shoppers in times like these are willing to forgo loyalty to their snack-of-choice Cheetos Brand Cheese Puffs, a decision to splurge on a tasty brand name snack is far more likely to occur than a splurge in a pricier category of purchases on say, a fancy new king size, extra deep, pillow-top mattress. Furthermore, Wes Brown sees a bag of M&Ms as an indulgence that is well worth a consumer’s dime, on grounds that if everything else in your life sucks, why would you get rid of the one relatively low-cost thing you like?”
The fact that consumers are increasingly purchasing products that define their individual lifestyles is another reason consumers may not automatically be forgoing the pricier grocery products. Consumers who are unable to purchase all the products that match and enhance their desired organic, macrobiotic, and vegan lifestyles will engage in a trading game of sorts, where they will opt for generic private label goods in certain low interest categories to enjoy a higher standard of grocery “living” in the others.
To combat the threat of losing certain consumers, many household-name brands have begun executing value-driven marketing and rebranding campaigns. While Kraft instituted the “why Snackrifice” slogan, and Oscar Meyer Deli Fresh Meats rolled out the tagline “deli fresh, without the deli counter price,” Kool-Aid added “more smiles per gallon.” Also eager to boost its value “image,” Lean Cuisine recently introduced the phrase “we believe in food that’s good for you and good for your wallet.” In theory, the idea of boosting the perceived value of a product by changing its brand image makes sense. In practice, though, I would love to know how well it has actually worked.
Interestingly enough, there has been some debate over whether a company’s decision to creatively reimage its brand during an economic downturn is actually wise. While some marketing professionals believe this type of brand reimaging is a smart decision because it tracks to consumer expectations, others disagree. Marketing guru Miles Smith of Pittsburgh’s Smith Brothers Agency believes that companies should exercise caution before making the decision to alter the value perception of its well-known brand, on grounds that doing so could “discount your brand into being considered a commodity, and train consumers to expect a sale everyday.” So where is the balance between it all? What should a company do with its brand during economic upheaval? I’m going to leave that question for the marketing pros, end this blog, and go buy myself a bag of Cheetos. I’ve earned it.
New Blog Series: Thoughts on Branding
This week, I am pleased to post a series of blogs written by Anna Bielejec, one of our fabulous summer associates. This summer, Anna took an interest in branding, brand development and branding decisions, an interest shared by another guest blogger and attorney at our firm, Steven Shapiro. This interest manifested itself in a series of delightful blogs with some thoughtful insight. I hope you enjoy them!
Wednesday, August 12, 2009
Continuity: Licensing, Product Placement and the Comic Book Industry
By: Steven Shapiro
I did a double take the last time I walked into a supermarket. Prominently displayed for sale in the beach toys was a boogie board with a giant image of Smiley: The Psychotic Button screened on it. Yes, the blood-thirsty, imaginary friend-given-life of Chaos! Comics’ Evil Ernie… on a boogie board.
I mean damn.
For the uninitiated, Evil Ernie was one of the most metal comics produced in the 90s. Chronicling the undead adventures of an emotionally disturbed, yet psychic (!), teenager, who cut a swath of terror across the American heartland in order to bring his one true love, Lady Death, back to Earth, Evil Ernie was like a zombie movie dipped in a Dethklok concert and baked at like a million degrees. Unfortunately, Chaos! went belly up back in 2002 and sold off all of its kickass intellectual property. And though Lady Death’s skull-studded bikini has found a home on wince-inducing D2V cartoons and a series of sword & sorcery books that feel more like Dungeons and Dragons than Demons and Wizards, Pulido and Hughes’ brutal heavy metal icons have not reached anywhere near their former epic glory.
This in mind, coming across Smiley: The Psychotic Button seven years later as a brand license deal for a boogie board was disconcerting. Stephen Hughes is a pretty remarkable artist and his imagery clearly has value beyond the page. So much so, that some kid who has never heard of Ernest Fairchild might want to identify with that toothy grin and skull & cross-bone icon. But is the goal here to suck every last shred of brand equity out of these properties? Marc Gobé, the fantastic author of Emotional Branding and Brandjam, would have us believe that if we have learned anything from the Apples or Googles of the world; it’s that brands should not be about commoditization, but individualized resonance. There is a subsidiary of Omnicom out of Chicago called RiverWest, which is part brand licensing agency and part venture capital house. At RiverWest, they take ‘dead’ brands and reanimate them into ‘zombie’ brands. By this, I mean that RiverWest takes defunct companies that pretty much exist only as intellectual property (trademarks and maybe a trade secret or two) and infuses a management team and capital into it to make the brand live again.
Appropriate, hm?
Making a zombie brand of Evil Ernie and friends would create a certain poetic justice that the ‘90s nostalgia hounds as well as a group of metalheads, who would never dream of entering a comic shop, would dig. Chaos! Comics largely zombie and horror-related properties slated to come back from beyond the retail grave? Epic. Yet diluting the brand through window-dressing fast cash hits, not only fails to achieve this resonance, but can place the goal of capitalizing on the long term equity in the emotional reaction to the Chaos! properties that much harder to accomplish. No one likes a sell-out. Especially when the brand is on its sunset or, in the case of the Chaos! properties, past it.
Consumers are savvy. Whether they have the language to articulate their opinions on marketing campaigns or not, they know what they like and they know what works. As Gobé would remind us, what ‘works’ isn’t necessarily logical either. But these consumers, who have been inundated in marketing noise since they were infants watching Sesame Street, are kinda cynical. If a brand licensing campaign causes them to be jarred out of the ‘magic’ of the retail experience, its failed.
Related to this, and though it KILLS me to call attention to it, is the product placement buzz that’s been plaguing one of my favorite comic titles, The Amazing Spider-Man. Marvel has apparently entered into a deal with mattress retailer, Sleepy’s, to incorporate Sleepy’s logos and ads into the billboards depicted in Marvel’s flagship title. Of course, cash is king, and if Sleepy’s is willing to pay for the 2-D real estate of Puny Parker’s Friendly Neighborhood, I can’t really fault Marvel for assenting. But where’s the cross-promo synergy? Spider-Man moonlights as a superhero- he’s not even in bed that often, right? Is this a Ford Mustang Pony Girl thing, where we’re trying to get consumers’ loyalty BEFORE they have the need or ability to buy? When a fanboy moves OUT of his parents’ basement, he’s going to need a bed of his own-- and he’ll turn to the Mattress Professionals for it.
I would argue that there has to be other prominent brands with deep pockets that actually resonate with a comic book fan (and more importantly, potential NEW comic book fans!), avoid that jarring electro-shock of inappropriate pairings, and give back to both brands. In the case of Spider-Man, the tried & true everyman from New York, how about the New York Mets? Unlike most comic book fans who debated whether The Mighty Thor could beat up the Incredible Hulk in a fight, my friends and I discussed whether Peter Parker was a Yankees or a Mets fan. Not that I’m biased, but CLEARLY, the kid from a working class family in Queens, would identify with the blue collar underdog vibe of the Mets brand. And Mephisto’s Brand New Day aside, did he get married in the Bronx or did he get hitched at Shea Stadium?! ‘Nuff said. Spider-Man plus the Mets could sell books, tickets and contribute to the promotion of the mythology of both New York icons.
So the moral of the story is continuity isn’t just about whether Spider-Man was in the Savage Land with the New Avengers at the same time that he was battling the new mandibled Vulture in Amazing. Or whether it’s cheaper to just dust off the cool old psychotic button, rather than make something new and cool for that boogie board company. Brand licensing and product placement tools are also aspects of a long game. They are about fidelity across product lines and industries towards the goal of promoting the narrative of all brands in play.
Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.
I did a double take the last time I walked into a supermarket. Prominently displayed for sale in the beach toys was a boogie board with a giant image of Smiley: The Psychotic Button screened on it. Yes, the blood-thirsty, imaginary friend-given-life of Chaos! Comics’ Evil Ernie… on a boogie board.
I mean damn.
For the uninitiated, Evil Ernie was one of the most metal comics produced in the 90s. Chronicling the undead adventures of an emotionally disturbed, yet psychic (!), teenager, who cut a swath of terror across the American heartland in order to bring his one true love, Lady Death, back to Earth, Evil Ernie was like a zombie movie dipped in a Dethklok concert and baked at like a million degrees. Unfortunately, Chaos! went belly up back in 2002 and sold off all of its kickass intellectual property. And though Lady Death’s skull-studded bikini has found a home on wince-inducing D2V cartoons and a series of sword & sorcery books that feel more like Dungeons and Dragons than Demons and Wizards, Pulido and Hughes’ brutal heavy metal icons have not reached anywhere near their former epic glory.
This in mind, coming across Smiley: The Psychotic Button seven years later as a brand license deal for a boogie board was disconcerting. Stephen Hughes is a pretty remarkable artist and his imagery clearly has value beyond the page. So much so, that some kid who has never heard of Ernest Fairchild might want to identify with that toothy grin and skull & cross-bone icon. But is the goal here to suck every last shred of brand equity out of these properties? Marc Gobé, the fantastic author of Emotional Branding and Brandjam, would have us believe that if we have learned anything from the Apples or Googles of the world; it’s that brands should not be about commoditization, but individualized resonance. There is a subsidiary of Omnicom out of Chicago called RiverWest, which is part brand licensing agency and part venture capital house. At RiverWest, they take ‘dead’ brands and reanimate them into ‘zombie’ brands. By this, I mean that RiverWest takes defunct companies that pretty much exist only as intellectual property (trademarks and maybe a trade secret or two) and infuses a management team and capital into it to make the brand live again.
Appropriate, hm?
Making a zombie brand of Evil Ernie and friends would create a certain poetic justice that the ‘90s nostalgia hounds as well as a group of metalheads, who would never dream of entering a comic shop, would dig. Chaos! Comics largely zombie and horror-related properties slated to come back from beyond the retail grave? Epic. Yet diluting the brand through window-dressing fast cash hits, not only fails to achieve this resonance, but can place the goal of capitalizing on the long term equity in the emotional reaction to the Chaos! properties that much harder to accomplish. No one likes a sell-out. Especially when the brand is on its sunset or, in the case of the Chaos! properties, past it.
Consumers are savvy. Whether they have the language to articulate their opinions on marketing campaigns or not, they know what they like and they know what works. As Gobé would remind us, what ‘works’ isn’t necessarily logical either. But these consumers, who have been inundated in marketing noise since they were infants watching Sesame Street, are kinda cynical. If a brand licensing campaign causes them to be jarred out of the ‘magic’ of the retail experience, its failed.
Related to this, and though it KILLS me to call attention to it, is the product placement buzz that’s been plaguing one of my favorite comic titles, The Amazing Spider-Man. Marvel has apparently entered into a deal with mattress retailer, Sleepy’s, to incorporate Sleepy’s logos and ads into the billboards depicted in Marvel’s flagship title. Of course, cash is king, and if Sleepy’s is willing to pay for the 2-D real estate of Puny Parker’s Friendly Neighborhood, I can’t really fault Marvel for assenting. But where’s the cross-promo synergy? Spider-Man moonlights as a superhero- he’s not even in bed that often, right? Is this a Ford Mustang Pony Girl thing, where we’re trying to get consumers’ loyalty BEFORE they have the need or ability to buy? When a fanboy moves OUT of his parents’ basement, he’s going to need a bed of his own-- and he’ll turn to the Mattress Professionals for it.
I would argue that there has to be other prominent brands with deep pockets that actually resonate with a comic book fan (and more importantly, potential NEW comic book fans!), avoid that jarring electro-shock of inappropriate pairings, and give back to both brands. In the case of Spider-Man, the tried & true everyman from New York, how about the New York Mets? Unlike most comic book fans who debated whether The Mighty Thor could beat up the Incredible Hulk in a fight, my friends and I discussed whether Peter Parker was a Yankees or a Mets fan. Not that I’m biased, but CLEARLY, the kid from a working class family in Queens, would identify with the blue collar underdog vibe of the Mets brand. And Mephisto’s Brand New Day aside, did he get married in the Bronx or did he get hitched at Shea Stadium?! ‘Nuff said. Spider-Man plus the Mets could sell books, tickets and contribute to the promotion of the mythology of both New York icons.
So the moral of the story is continuity isn’t just about whether Spider-Man was in the Savage Land with the New Avengers at the same time that he was battling the new mandibled Vulture in Amazing. Or whether it’s cheaper to just dust off the cool old psychotic button, rather than make something new and cool for that boogie board company. Brand licensing and product placement tools are also aspects of a long game. They are about fidelity across product lines and industries towards the goal of promoting the narrative of all brands in play.
Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.
Wednesday, August 5, 2009
Kickstarter a Great Option for Indie Artists
Alright artists - calling all filmmakers, musicians, designers, ALL artists - you guys need to check out Kickstarter.com I don't want my blog to be a substitute to visiting the site, so make sure you go there and give them the traffic. But in a nutshell, it's a micro-financing site for creatives and their projects, allowing users to pledge and fund thee projects as they see fit. Artists, you are entrepreneurs and innovators - get in on this! Get funding @ the same time as you're spreading word about your creative endeavors. God's speed, may the force with you, na-noo-na-noo.
Monday, August 3, 2009
Social Gaming On the Rise
Great article in the San Fransisco Chronicle today about Social Gaming. You know, games like Mafia Wars that you can play on F/B and annoy all your friends with your constantly updated news feed. I really shouldn't be so critical. For the gaming industry, it appears these babies are a little bit of a cash cow; simple concepts, graphics and mechanisms means lower development (and possibly maintenance) costs. Plus, because they don't require you to play "live" with others, casual gamers have the option of logging on and contributing to game play as it suits them.
Do any of you guys play these games? What are your thoughts on these games and (new) direction of gaming?
Do any of you guys play these games? What are your thoughts on these games and (new) direction of gaming?
Friday, July 31, 2009
Are We Really Going There?: Race and Video Games
Well, crap in a hat. A surprising study has come out this week, featured in Science Codex that claims studies show that minorities are notoriously underrepresented in video games. Holy cow - are you serious?? Are we really going there?
You know what, let me back up here. Yes, I agree; Latinos are not generally well-presented in video games, and there aren't a lot of African American lead characters. However, video games are not reality; they exaggerate stereotypes and play on history, much like films do. Were the Russians bitching when GTA4 came out and the lead character was a Russian gangster? No, because that shit is based on reality, albeit exaggerated for entertainment purposes. There was a big uproar when Res Evil 5 came out because all the zombies were black. First of all, they aren't really zombies - it's a rage virus. Second, the game took place in AFRICA. News flash: lots of people are black in Africa. Let it go! Did Spanish folks complain when Res Evil 4 took place in a Spanish village? No. And no one can bitch about Japanese RPG's because you can't even tell what gender half of those people are, never mind what race. Maybe transgendered individuals will start complaining about that. I mean, that's gotta be malicious, right? Game developers are evil, evil people.
On top of all this noise, the study neglected to mentioned that characters are fully customizable in a myriad of games right now. Mass Effect, Fallout; hell, look @ Miis! So if you're you're white and nerdy, you can be a ripped black guy if your heart so desires.
Here's the reality, folks - the world is (thankfully)full of diversity and different cultures. Each culture shares similarities among its individuals, which creates stereotypes. Game developers merely take some of these generalizations and populate their virtual worlds. They are not being malicious. That's why there are black people in Africa, and why Mario is a chubby Italian.
With regard to lead characters, I personally think it's difficult to discern their race sometimes. Sure, they have American accents, but that's just dubbing. What the hell race is the lead from Gears of War supposed to be? He kind of looks white, but who knows? He's always kind of dirty, and I can't see his hair. Holy crap - is he bald?? That's just cold. And he's insanely huge - is that discriminatory against skinny, small people? As a petite woman, I'm offended.
Look, I know race is still a serious issue, both in America and globally. But let's keep the issue to where it's truly relevant! A video game is not one of those places. Let's all just sit down together and have some fun, huh?
You know what, let me back up here. Yes, I agree; Latinos are not generally well-presented in video games, and there aren't a lot of African American lead characters. However, video games are not reality; they exaggerate stereotypes and play on history, much like films do. Were the Russians bitching when GTA4 came out and the lead character was a Russian gangster? No, because that shit is based on reality, albeit exaggerated for entertainment purposes. There was a big uproar when Res Evil 5 came out because all the zombies were black. First of all, they aren't really zombies - it's a rage virus. Second, the game took place in AFRICA. News flash: lots of people are black in Africa. Let it go! Did Spanish folks complain when Res Evil 4 took place in a Spanish village? No. And no one can bitch about Japanese RPG's because you can't even tell what gender half of those people are, never mind what race. Maybe transgendered individuals will start complaining about that. I mean, that's gotta be malicious, right? Game developers are evil, evil people.
On top of all this noise, the study neglected to mentioned that characters are fully customizable in a myriad of games right now. Mass Effect, Fallout; hell, look @ Miis! So if you're you're white and nerdy, you can be a ripped black guy if your heart so desires.
Here's the reality, folks - the world is (thankfully)full of diversity and different cultures. Each culture shares similarities among its individuals, which creates stereotypes. Game developers merely take some of these generalizations and populate their virtual worlds. They are not being malicious. That's why there are black people in Africa, and why Mario is a chubby Italian.
With regard to lead characters, I personally think it's difficult to discern their race sometimes. Sure, they have American accents, but that's just dubbing. What the hell race is the lead from Gears of War supposed to be? He kind of looks white, but who knows? He's always kind of dirty, and I can't see his hair. Holy crap - is he bald?? That's just cold. And he's insanely huge - is that discriminatory against skinny, small people? As a petite woman, I'm offended.
Look, I know race is still a serious issue, both in America and globally. But let's keep the issue to where it's truly relevant! A video game is not one of those places. Let's all just sit down together and have some fun, huh?
Monday, July 27, 2009
The Reason Why I Can Do Without a Don Draper Action Figure
By: Steven Shapiro, Esq.
As many of you may have seen this past week, Banana Republic has entered into a co-marketing deal with AMC’s Mad Men to promote the latest season of the hit ‘60s era period drama. I admit that I am relatively new to the Mad Men bandwagon, but if you’re looking for a show that teases out the almost other-worldly anachronisms of early ‘60s culture, this is the one.
Beyond a doctor smoking a cigarette in a gynecology ward, the most striking thing about Mad Men is the fashion. Any given issue of GQ will tell you that the American-Style of men’s fashion was buried with Cary Grant. In contrast, Mad Men showcases a throwback to when the American man could dress—pocket squares, tie clips, fedoras and all. Even before I started watching the DVDs, I started intergrating three-piece suits in my everyday business attire. Can we say that Mad Men sparked a resurgence in the well-dressed American? Or perhaps we can say that the show merely (and perfectly) rode an already forming fashion zeitgeist? Either way, Mad Men reminds us that dressing sharply is striking.
What’s also striking is that the producers of this program about a Madison Avenue Ad Agency actually get marketing. Over the past season, we have seen some well-executed product placement endeavors featuring Sterling Cooper account execs sitting across from famous real world prospects like Heineken and Cadillac. But the current promotion running in tandem with Banana Republic further demonstrates that not only can they do marketing, but that they can do it authentically and seamlessly. Could any other retail store connect with the property, fashion and viewers of this show better than Banana Republic? Go to BR’s website to find full-length character profiles paired with Banana merchandise that calls to mind the Mad Men Look.
But… why stop there? The ingredients are already here, why not take the plunge and make this an iconic licensing relationship? As Michael Stone, President/CEO of The Beanstalk Group, is often quoted, licensing is NOT a non-strategic, transactional decoration exercise, but an opportunity to build enduring brand equity through “…match[ing] or extend[ing] the brand to products so authentically that the brand enters consumers’ lives in ways that are unpredictable, but natural.” Look at Trump, Inc.’s relationship with Van Heusen for dress shirts. It took time and energy to build from Donald Trump’s persona to The Apprentice to Macy’s best selling high quality branded line of men’s wear. The title to this article may seem silly, but that is exactly what happens when licensors omit such time and effort from a licensing program— at best, no one cares and, at worst, everyone groans! Don Draper action figures with waist-activated infidelity action? LICENSING FAIL. Toys would not cause the brand to resonate with viewers.
Whether intended or not, this co-marketing promotion has created just such an unpredictable and genuine relationship between Mad Men and Banana Republic in the minds of consumers. So why stop at showcasing vintage suits next to pictures of actors, when you could launch The Sterling Cooper Line from Banana Republic? Mad Men would certainly benefit from the exposure of having an official vintage clothing line and all those men (and girlfriends/significant others/moms shopping for those men), who dig that vintage look, are going to have a direct tether back to the exclusive retail location showcasing the official men’s wear of Mad Men. For what it’s worth, I’d buy Mad Men-inspired attire.
So while I may be shooting my dream of having my own 6” Christina Hendricks plastic idol in the foot, bringing these two brands together was brilliant and they should continue to intertwine them. Besides, Firefly’s Saffron getting the action figure treatment makes a lot more sense than Joan Halloway.
Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.
As many of you may have seen this past week, Banana Republic has entered into a co-marketing deal with AMC’s Mad Men to promote the latest season of the hit ‘60s era period drama. I admit that I am relatively new to the Mad Men bandwagon, but if you’re looking for a show that teases out the almost other-worldly anachronisms of early ‘60s culture, this is the one.
Beyond a doctor smoking a cigarette in a gynecology ward, the most striking thing about Mad Men is the fashion. Any given issue of GQ will tell you that the American-Style of men’s fashion was buried with Cary Grant. In contrast, Mad Men showcases a throwback to when the American man could dress—pocket squares, tie clips, fedoras and all. Even before I started watching the DVDs, I started intergrating three-piece suits in my everyday business attire. Can we say that Mad Men sparked a resurgence in the well-dressed American? Or perhaps we can say that the show merely (and perfectly) rode an already forming fashion zeitgeist? Either way, Mad Men reminds us that dressing sharply is striking.
What’s also striking is that the producers of this program about a Madison Avenue Ad Agency actually get marketing. Over the past season, we have seen some well-executed product placement endeavors featuring Sterling Cooper account execs sitting across from famous real world prospects like Heineken and Cadillac. But the current promotion running in tandem with Banana Republic further demonstrates that not only can they do marketing, but that they can do it authentically and seamlessly. Could any other retail store connect with the property, fashion and viewers of this show better than Banana Republic? Go to BR’s website to find full-length character profiles paired with Banana merchandise that calls to mind the Mad Men Look.
But… why stop there? The ingredients are already here, why not take the plunge and make this an iconic licensing relationship? As Michael Stone, President/CEO of The Beanstalk Group, is often quoted, licensing is NOT a non-strategic, transactional decoration exercise, but an opportunity to build enduring brand equity through “…match[ing] or extend[ing] the brand to products so authentically that the brand enters consumers’ lives in ways that are unpredictable, but natural.” Look at Trump, Inc.’s relationship with Van Heusen for dress shirts. It took time and energy to build from Donald Trump’s persona to The Apprentice to Macy’s best selling high quality branded line of men’s wear. The title to this article may seem silly, but that is exactly what happens when licensors omit such time and effort from a licensing program— at best, no one cares and, at worst, everyone groans! Don Draper action figures with waist-activated infidelity action? LICENSING FAIL. Toys would not cause the brand to resonate with viewers.
Whether intended or not, this co-marketing promotion has created just such an unpredictable and genuine relationship between Mad Men and Banana Republic in the minds of consumers. So why stop at showcasing vintage suits next to pictures of actors, when you could launch The Sterling Cooper Line from Banana Republic? Mad Men would certainly benefit from the exposure of having an official vintage clothing line and all those men (and girlfriends/significant others/moms shopping for those men), who dig that vintage look, are going to have a direct tether back to the exclusive retail location showcasing the official men’s wear of Mad Men. For what it’s worth, I’d buy Mad Men-inspired attire.
So while I may be shooting my dream of having my own 6” Christina Hendricks plastic idol in the foot, bringing these two brands together was brilliant and they should continue to intertwine them. Besides, Firefly’s Saffron getting the action figure treatment makes a lot more sense than Joan Halloway.
Steven Shapiro is an attorney and Vice-President at Exemplar Law Partners, LLC. He specializes in brand licensing in the comic book and apparel industries.
Thursday, July 23, 2009
Songs v. Recorded Music, or Artists v. Labels
In my line of work, I do quite a bit of copyright consulting for my customers, many of whom are musicians. My approach to copyright registration is more "teach a man to fish" than "give a man a fish"; as an integral part of their careers, I think artists should be empowered to learn how to register and manage their copyrights. This is especially important if the artist later signs with a label or a publishing company, who may be administering the copyright on the artist's behalf. An artist needs to be able to read royalty statements and understand which copyrights are generating which type of income.
Tied to this, I frequently hit a road block when I talk to musicians about recorded music. Every piece of recorded music actually embodies two separate copyrights - one for the actual "song" and one for the actual "recording" or "master." For example, if you would like to record your own version of a song, you need only license the copyrights associated with the "song" itself, not the recording. However, if you wish to sample a bit of recorded music, you must license both copyrights associated with the "song" and the "master."
Enter the issue of contention between Artists and Labels: when an artist signs a recording agreement, they retain the copyrights to the songs (subject to any publishing agreement they may have signed), but any recordings made of the songs under the label belong to the LABEL. This is an unfortunate industry standard that very few artists have been able to avoid. Case in point: British artist Calvin Harris lashed out on Twitter when YouTube removed a music video of his song that he posted himself. The article cites that the copyrigt claim was most likely put forward by BPI, a representative for the recorded music industry. Recorded music = labels. I can totally understand why Calvin Harris is pissed off, but my assumption here is that he probably doesn't own the rights to the masters; his label does. This disconnect in copyright ownership creates inherent and added friction to the already strained relationships between artists and labels.
So how can we stop this? There needs to be a balance here. If the recording industry wants to keep the standard of owning masters (which I'm sure they do), they should be extending licenses back to artists to promote their recorded own work. Artists extend that right to labels by licensing their name and likeness for labels to use for promotional purposes, so license should be reciprocated. The idea that an artist can't post their own recorded music on a FREE site for their own promotional purposes is simply ludicrous. In this digitally driven world, there needs to be new and reasonable standards for labels. After all, in the words of Calvin Harris, "it's my fucking song you absolute bastards."
Tied to this, I frequently hit a road block when I talk to musicians about recorded music. Every piece of recorded music actually embodies two separate copyrights - one for the actual "song" and one for the actual "recording" or "master." For example, if you would like to record your own version of a song, you need only license the copyrights associated with the "song" itself, not the recording. However, if you wish to sample a bit of recorded music, you must license both copyrights associated with the "song" and the "master."
Enter the issue of contention between Artists and Labels: when an artist signs a recording agreement, they retain the copyrights to the songs (subject to any publishing agreement they may have signed), but any recordings made of the songs under the label belong to the LABEL. This is an unfortunate industry standard that very few artists have been able to avoid. Case in point: British artist Calvin Harris lashed out on Twitter when YouTube removed a music video of his song that he posted himself. The article cites that the copyrigt claim was most likely put forward by BPI, a representative for the recorded music industry. Recorded music = labels. I can totally understand why Calvin Harris is pissed off, but my assumption here is that he probably doesn't own the rights to the masters; his label does. This disconnect in copyright ownership creates inherent and added friction to the already strained relationships between artists and labels.
So how can we stop this? There needs to be a balance here. If the recording industry wants to keep the standard of owning masters (which I'm sure they do), they should be extending licenses back to artists to promote their recorded own work. Artists extend that right to labels by licensing their name and likeness for labels to use for promotional purposes, so license should be reciprocated. The idea that an artist can't post their own recorded music on a FREE site for their own promotional purposes is simply ludicrous. In this digitally driven world, there needs to be new and reasonable standards for labels. After all, in the words of Calvin Harris, "it's my fucking song you absolute bastards."
Wednesday, July 22, 2009
Massachusetts Game Developers! Time to Get Some Tax Credits!
Ah yes - could there be a more exciting title to a blog in the whole world? I don't THINK so. But seriously, I have some important news for game developers and game development companies in Massachusetts. There is a bill in the House right now that would extend tax credits to game development companies in the same manner that they are currently offered to motion picture companies that film in Massachusetts. I've provided hyperlinks for both the proposed changes and the current bill, but I'll break it down for all of you that don't like spending the little free time you have reading statutes.
First, a little overview of tax credits. Unlike tax deductions, which reduce the total gross income on which you pay taxes, tax credits actual reduce the amount of taxes themselves. So if you have a $10,000 tax bill and $4,000 in credits, you only pay $6,000. With that in mind, onward we go!
1) Game Development companies would get a 25% tax credit based on the total payroll for production costs in Massachusetts if total production costs (not just payroll) are $50K or more during a given tax year. This doesn't include employees that are paid over $1,000,000.00 (I don't think many folks have to worry about that part!)
2) You get an additional 25% credit for all other production expenses, excluding payroll for production if @ least 50% of the total production costs were incurred in Massachusetts.
3) You apply the credits to your total tax bill, thereby reducing it. If you have credits left over, you have 2 choices: you can ask for them back, and you will be refunded 90% of their value; or you can carry them over for 5 more years.
4) You can also SELL the credits to other people/companies! However, if you acquire a transferred credit, you can't get a refund on it (see 3)), but you can still carry that acquired credit over for up 5 five years. And you need to sell the commissioner if you transfer it.
So that's pretty much it! I'm not a tax attorney, but my understanding of the situation is that the 25% is pulled from the total amount spent. So, if you spend $600,000 total on production, and $100,000 is payroll, you get a tax credit worth 25% of payroll ($25,000) plus 25% on the balance of $500,000 ($125,000). However, I'm still doing some research on this for some of my gaming clients, so I may amend after a further look.
However, I think the important thing is that no matter what the amount, this is directly benefiting your company and the gaming industry at large in Massachusetts. Our state has some of the brightest minds in the industry, and I would strongly encourage you to write to your local congressmen and ask them to lobby in support of the bill. Game development companies bring jobs to the area and keep our brightest minds here in the state of Massachusetts. You guys are some of those minds and we want you to stay! So please consider taking the time to lobby for yourself and others.
First, a little overview of tax credits. Unlike tax deductions, which reduce the total gross income on which you pay taxes, tax credits actual reduce the amount of taxes themselves. So if you have a $10,000 tax bill and $4,000 in credits, you only pay $6,000. With that in mind, onward we go!
1) Game Development companies would get a 25% tax credit based on the total payroll for production costs in Massachusetts if total production costs (not just payroll) are $50K or more during a given tax year. This doesn't include employees that are paid over $1,000,000.00 (I don't think many folks have to worry about that part!)
2) You get an additional 25% credit for all other production expenses, excluding payroll for production if @ least 50% of the total production costs were incurred in Massachusetts.
3) You apply the credits to your total tax bill, thereby reducing it. If you have credits left over, you have 2 choices: you can ask for them back, and you will be refunded 90% of their value; or you can carry them over for 5 more years.
4) You can also SELL the credits to other people/companies! However, if you acquire a transferred credit, you can't get a refund on it (see 3)), but you can still carry that acquired credit over for up 5 five years. And you need to sell the commissioner if you transfer it.
So that's pretty much it! I'm not a tax attorney, but my understanding of the situation is that the 25% is pulled from the total amount spent. So, if you spend $600,000 total on production, and $100,000 is payroll, you get a tax credit worth 25% of payroll ($25,000) plus 25% on the balance of $500,000 ($125,000). However, I'm still doing some research on this for some of my gaming clients, so I may amend after a further look.
However, I think the important thing is that no matter what the amount, this is directly benefiting your company and the gaming industry at large in Massachusetts. Our state has some of the brightest minds in the industry, and I would strongly encourage you to write to your local congressmen and ask them to lobby in support of the bill. Game development companies bring jobs to the area and keep our brightest minds here in the state of Massachusetts. You guys are some of those minds and we want you to stay! So please consider taking the time to lobby for yourself and others.
Tuesday, July 21, 2009
Rehashing Old IP a Safe Bet in Gaming Industry
As an avid gamer, I'm always excited to get the latest copy of Game Informer in the mail. Even the covers, with their elaborate artwork, impress me. Creating games has become an art form that is to be respected. However, although video games have experienced a surge in the mainstream over the last few years, it is still an inherently risky investment. Game developments costs a crapload of money, and, without the proper marketing and promotion (more cha-ching) the best game in the world can fall through the cracks.
So what's a game development company to do when times are tight? The answer, apparently, lies in sticking to tried and true IP franchises, which decrease the risk of a flop. Hell, even sequels that suck bring in decent bucks; I won't name names... perhaps I should transform to a different topic. Back to my Game Informer covers. This year alone, Assassin's Creed 2, COD: Modern Warefare 2, Bioshock 2 and Uncharted 2 have graced the covers of this publication. Don't get me wrong - I'm not bagging on Game Informer or these franchises. In fact, I think most of these games are kick ass. My point is that I believe that even if they were mediocre titles at best, they may be considered for a sequel right now. IP development is very expensive (believe me, as a lawyer that spends most of her time writing licensing agreements, this stuff can get complicated), and the mainstream public is largely unpredictable when it comes to embracing new franchises. The cost of developing a game with hype and a marketing foundation already in place saves companies a lot of time and money - they've got fans and word of mouth already set from the first (or 4) games, not to mention the support of critics that enjoyed the first (or 4) games.
So am I upset about Bioshock 2 or COD 2? Hell no! But not all franchises are created equal, and I hope the industry continues to back good choices about which IP to fall back on. (cough Too Human cough). And while I'm at it, can we PLEASE stop adapting games for the Wii that are meant to have good graphics just because?? It's time for face facts. Dead Rising:Chop Til You Drop looks like shit.
So what's a game development company to do when times are tight? The answer, apparently, lies in sticking to tried and true IP franchises, which decrease the risk of a flop. Hell, even sequels that suck bring in decent bucks; I won't name names... perhaps I should transform to a different topic. Back to my Game Informer covers. This year alone, Assassin's Creed 2, COD: Modern Warefare 2, Bioshock 2 and Uncharted 2 have graced the covers of this publication. Don't get me wrong - I'm not bagging on Game Informer or these franchises. In fact, I think most of these games are kick ass. My point is that I believe that even if they were mediocre titles at best, they may be considered for a sequel right now. IP development is very expensive (believe me, as a lawyer that spends most of her time writing licensing agreements, this stuff can get complicated), and the mainstream public is largely unpredictable when it comes to embracing new franchises. The cost of developing a game with hype and a marketing foundation already in place saves companies a lot of time and money - they've got fans and word of mouth already set from the first (or 4) games, not to mention the support of critics that enjoyed the first (or 4) games.
So am I upset about Bioshock 2 or COD 2? Hell no! But not all franchises are created equal, and I hope the industry continues to back good choices about which IP to fall back on. (cough Too Human cough). And while I'm at it, can we PLEASE stop adapting games for the Wii that are meant to have good graphics just because?? It's time for face facts. Dead Rising:Chop Til You Drop looks like shit.
Wednesday, July 15, 2009
Take-Two Delays Bioshock 2: A Good Choice for Transparency
I stumbled on a great article written by IndustryGamers on Gamedaily.com discussing Take-Two's decision to delay the release of Bioshock 2 into 2010. The article cites the sometimes precarious situations this can put development companies in, balancing the needs of their consumers and investors. It's no secret that investors are, at the end of the day, all about their ROI - otherwise, why invest? However, this article artfully points out that, while this delay may initially put investors on edge and delay an ROI, that ROI won't be diminished. In fact, I would argue it could increase, since the reason for the game's delay appears to be the developer's desire (need?) to fine tune every aspect of art and game playing experience. As word of this gets out in the gaming community, it's sure to garner some appreciation. Plus, since the last property (the first Bioshock) was so incredibly well-received by players and critics alike, I don't think investors need be concerned that they may not get their pay off @ the end of the day.
Along the same lines, until recently, game developers faced ridicule from many anxious consumers, who got severely pissed off when games were delayed. However, I think the industry has done a great job of bringing the true reason for delays to light, whether or not they are favorable ones. Here, it appears Take-Two genuinely wants to release an incredible sequel, not only for their loyal fans, but to keep the franchise alive and well (ala Final Fantasy? Who knows how far this could go!). Check off two for Take-Two! (HA!)But in the past, game developers have come out with less favorable truths about delays, including licensing and contract negotiation delays. I sincerely think this is a good move for the gaming industry, and not one we see often in entertainment - transparency with consumers. Obviously there are details these companies can't release, but the fact they release what they cane fosters a sense of community that only the gaming industry has.
Overall, I think it's both a good financial and PR move for Take-Two. I would invite you to read the article and share your comments on it there or your thoughts on my opinion on the matter here. Happy gaming!
Along the same lines, until recently, game developers faced ridicule from many anxious consumers, who got severely pissed off when games were delayed. However, I think the industry has done a great job of bringing the true reason for delays to light, whether or not they are favorable ones. Here, it appears Take-Two genuinely wants to release an incredible sequel, not only for their loyal fans, but to keep the franchise alive and well (ala Final Fantasy? Who knows how far this could go!). Check off two for Take-Two! (HA!)But in the past, game developers have come out with less favorable truths about delays, including licensing and contract negotiation delays. I sincerely think this is a good move for the gaming industry, and not one we see often in entertainment - transparency with consumers. Obviously there are details these companies can't release, but the fact they release what they cane fosters a sense of community that only the gaming industry has.
Overall, I think it's both a good financial and PR move for Take-Two. I would invite you to read the article and share your comments on it there or your thoughts on my opinion on the matter here. Happy gaming!
Friday, June 19, 2009
Woman Fights RIAA, Gets Hit With $1.92 MIL in Fines
Thanks to megaplatinium.net for this story. This is kind of an ironic post for me to blog about, since I am utterly speechless about the outcome, and even more confused about exactly what the RIAA is trying to achieve as part of these suits. This woman downloaded 24 songs. TWENTY FOUR. Where is the justice here?
Speaking of justice, Ms. Thomas-Rasset had refused to settle with the RIAA, believing she had the law on her side. She was sorely mistaken, and the RIAA has this to say about her actions:
"We are pleased that the jury agreed with the evidence and found the defendant liable. Since day 1, we have been willing to settle the case and remain willing to do so."
Wow, you really showed her, didn't you? Really set the example for the purpose of copyright laws and their intended purpose and enforcement. This case is just another reason why I feel that copyright law is at an impasse - either it needs to be amended to conform with new technologies and their practicalities, or the court system needs to step up and enforce some measure of public policy here. I fail to see how verdicts like this are serving the greater good of either artists or the public.
Comments welcome, especially if you disagree. I would love to find some rationale behind this that makes sense beyond the print on the pages of Copyright Law. Shouldn't "justice" marry the law with policy?
Speaking of justice, Ms. Thomas-Rasset had refused to settle with the RIAA, believing she had the law on her side. She was sorely mistaken, and the RIAA has this to say about her actions:
"We are pleased that the jury agreed with the evidence and found the defendant liable. Since day 1, we have been willing to settle the case and remain willing to do so."
Wow, you really showed her, didn't you? Really set the example for the purpose of copyright laws and their intended purpose and enforcement. This case is just another reason why I feel that copyright law is at an impasse - either it needs to be amended to conform with new technologies and their practicalities, or the court system needs to step up and enforce some measure of public policy here. I fail to see how verdicts like this are serving the greater good of either artists or the public.
Comments welcome, especially if you disagree. I would love to find some rationale behind this that makes sense beyond the print on the pages of Copyright Law. Shouldn't "justice" marry the law with policy?
Thursday, June 11, 2009
Virtual Stampede Coming to Facebook on 12:01 6/13 - Run for Your Trademarks!!
I feel it's my duty to make this news known to anybody that may not know it... although I highly doubt that is the case, especially given my paltry number of readers (love every single one of you though... all 5 of you. Your devotion knows no bounds). Anyway, facebook is officially giving usernames out on 12:01 am on Saturday, June 13th. This basically means you can get a URl like: www.facebook.com/johnsmith. I can bet your booty I'll be in line for my name. However, it has given rise to some interesting trademark issues, which Jonathan Handel addresses in his blog. So bands - if your band name or logo is REGISTERED with the USPTO, you can go to www.facebook.com/username and put in the registration number to reserve the URL extension. If it's not formally registered, I'm afraid you're going to be in line with the rest of us, most likely crashing Facebook @ 12:01. Let the games begin.
A Look At the Yahoo! v. NFLPA: Are Player Stats Copyrightable?
I am pleased to temporarily step aside as the main author of this blog and present a blog written by one of our legal interns, Mr. Lincoln Cohoon. While I generally don't cover sports as part of my realm of "entertainment," the recent case with Yahoo! and the Player's Association presents copyright issues that are simply too juicy to pass up. Therefore, I invite you to read Lincoln's thoughts on the issue, and to contribut your own as well. Enjoy!
What rights do athletes and teams have to the statistics produced during a game?
By: Lincoln Cohoon
Millions of sports fans across the globe participate in fantasy sports each season. This growing business produces more than one billion dollars in revenues for the companies that sponsor and run the fantasy sports leagues. However, a recent debate has emerged over whether athletes, teams, or even the leagues have exclusive rights to the use of these statistics.
Recently, Yahoo, Inc. has filed suit against the Nation Football League Players Association (NFLPA) for access to player statistics. A June 3rd article from Yahoo.com, “Yahoo Sues NFL Players Association” by Steve Karnowski, details the dispute and the legal dilemma that surrounds it. Yahoo wants the courts to require the NFLPA to provide player statistics without having to pay the NFLPA royalties for this information. Yahoo claims the information is already public knowledge and therefore there is no need to renew the previous use of statistics agreement with the NFLPA that expired on March 1st. As the article states, this is not the first time that a major sports leagues’ players association has been involved in a lawsuit over player statistics. The courts have ruled against the players associations on two other occasions; in 2007 against the Major League Baseball’s Players Association and just this past April against the NFLPA in a suit with CBS.
Two issues are at stake with this suit, the first being whether this court will follow suit and rely on the 8th Circuit’s decision. Because this case is also being tried in the 8th Circuit, the same Circuit which brought down the ruling the previously mentioned MLB case, the court is bound by that decisions. Thus, unless the lawyers for the NFLPA can somehow distinguish this case from the MLB case (which I’m sure the NFLPA’s lawyers will attempt with a vengeance), the federal court is bound to follow the precedent set by the previous case. Since the facts, on their face, do not appear different enough to warrant a contrary ruling, it would appear that Yahoo is likely to at least win Round One.
The bigger question here revolves around what may happen on appeal. Regardless of who wins in the lower court this case, it seems to be destined to reach at least the Court of Appeals. From there, The Court of Appeals could reverse the previous decision set by the lower court (taking into considering whether the MLB case was followed and why), it could deem that this case presents a unique issue and rule differently (although generally the Court of Appeals will not do this unless the lower court committed a grave legal error in its ruling), or they could let the previous decision and stand and once again rule against the NFLPA .
The second issue of large concern is whether players and leagues have rights to their (own) statistics. The legal arguments likely to be set forth are that the information is public knowledge, and that a fantasy sports provider (Yahoo in this instance), simply compiles and generates for their users. This argument focuses on the notion that copyright protection does not protect facts; it only protects the expression of ideas. Player statistics are public information that anyone could collect by simply reading the paper or watching the game, but more importantly, player statistics are factual information – not creative expressions. Because of this, stats may not be eligible for copyright protection at all.
An aside to this may be that while facts themselves are not protectable, a unique arrangement of facts may be. For example, a book on the civil war, while relying historical facts, may present it in a unique way that renders the book (not the facts themselves) protectable. Building on this, it may benefit Yahoo! to argue that, not only are the stats themselves not copyrightable (and thus not subject to licensure), but the unique way in which Yahoo! arranges and presents them actually entitles Yahoo! to copyright protection over that presentation.
In my opinion, this issue is driven by the athletes trying to get a bigger piece of the pie – and a bad PR move on their part, as they are seemingly failing to consider the negative ramifications this could have on people’s desire to watch sports or follow athletes and their numbers. With the nasty PR blows that these leagues and athletes have recently taken (steroids in MLB, conduct issues in the NFL, concerns about violence in the NHL, rising ticket prices in all of the leagues) one would think that the leagues would smarten up and actually give something back to the fans. I understand the business side of the argument and the fact that there wouldn’t be fantasy sports if there weren’t athletes, but I really think that it is time for the athletes to realize that there really wouldn’t be professional sports if there are no fans to follow them.
What rights do athletes and teams have to the statistics produced during a game?
By: Lincoln Cohoon
Millions of sports fans across the globe participate in fantasy sports each season. This growing business produces more than one billion dollars in revenues for the companies that sponsor and run the fantasy sports leagues. However, a recent debate has emerged over whether athletes, teams, or even the leagues have exclusive rights to the use of these statistics.
Recently, Yahoo, Inc. has filed suit against the Nation Football League Players Association (NFLPA) for access to player statistics. A June 3rd article from Yahoo.com, “Yahoo Sues NFL Players Association” by Steve Karnowski, details the dispute and the legal dilemma that surrounds it. Yahoo wants the courts to require the NFLPA to provide player statistics without having to pay the NFLPA royalties for this information. Yahoo claims the information is already public knowledge and therefore there is no need to renew the previous use of statistics agreement with the NFLPA that expired on March 1st. As the article states, this is not the first time that a major sports leagues’ players association has been involved in a lawsuit over player statistics. The courts have ruled against the players associations on two other occasions; in 2007 against the Major League Baseball’s Players Association and just this past April against the NFLPA in a suit with CBS.
Two issues are at stake with this suit, the first being whether this court will follow suit and rely on the 8th Circuit’s decision. Because this case is also being tried in the 8th Circuit, the same Circuit which brought down the ruling the previously mentioned MLB case, the court is bound by that decisions. Thus, unless the lawyers for the NFLPA can somehow distinguish this case from the MLB case (which I’m sure the NFLPA’s lawyers will attempt with a vengeance), the federal court is bound to follow the precedent set by the previous case. Since the facts, on their face, do not appear different enough to warrant a contrary ruling, it would appear that Yahoo is likely to at least win Round One.
The bigger question here revolves around what may happen on appeal. Regardless of who wins in the lower court this case, it seems to be destined to reach at least the Court of Appeals. From there, The Court of Appeals could reverse the previous decision set by the lower court (taking into considering whether the MLB case was followed and why), it could deem that this case presents a unique issue and rule differently (although generally the Court of Appeals will not do this unless the lower court committed a grave legal error in its ruling), or they could let the previous decision and stand and once again rule against the NFLPA .
The second issue of large concern is whether players and leagues have rights to their (own) statistics. The legal arguments likely to be set forth are that the information is public knowledge, and that a fantasy sports provider (Yahoo in this instance), simply compiles and generates for their users. This argument focuses on the notion that copyright protection does not protect facts; it only protects the expression of ideas. Player statistics are public information that anyone could collect by simply reading the paper or watching the game, but more importantly, player statistics are factual information – not creative expressions. Because of this, stats may not be eligible for copyright protection at all.
An aside to this may be that while facts themselves are not protectable, a unique arrangement of facts may be. For example, a book on the civil war, while relying historical facts, may present it in a unique way that renders the book (not the facts themselves) protectable. Building on this, it may benefit Yahoo! to argue that, not only are the stats themselves not copyrightable (and thus not subject to licensure), but the unique way in which Yahoo! arranges and presents them actually entitles Yahoo! to copyright protection over that presentation.
In my opinion, this issue is driven by the athletes trying to get a bigger piece of the pie – and a bad PR move on their part, as they are seemingly failing to consider the negative ramifications this could have on people’s desire to watch sports or follow athletes and their numbers. With the nasty PR blows that these leagues and athletes have recently taken (steroids in MLB, conduct issues in the NFL, concerns about violence in the NHL, rising ticket prices in all of the leagues) one would think that the leagues would smarten up and actually give something back to the fans. I understand the business side of the argument and the fact that there wouldn’t be fantasy sports if there weren’t athletes, but I really think that it is time for the athletes to realize that there really wouldn’t be professional sports if there are no fans to follow them.
Monday, June 8, 2009
NoPerformanceTax.com - Why Should Radio Be Different?
I go all sorts of places looking for good blog fodder - I have my Google Alerts, my favorite music business news sites (i.e. hypebot.com) and my favorite music biz/legal blogs (i.e. ipandentertainmentlaw.com, Copyrights & Campaigns, Ars Technica), etc. However, I must give credit where credit is due, and must admit that my parents give me amazing blog fodder. Any time a music business issue, article, story, etc. comes across their plates, I almost always get an email. So thanks, mom and dad. This particular blog comes courtest of my father, who came across noperformancetax.com and asked me about it. So, here's my explanation, which comes larger from an email I sent back to my Dad:
Ok, I took a look @ the website and I knew EXACTLY what it was the second I saw it.
So, copyright owners [editor's note: this means you, artists!] have 6 rights that are exclusive to them unless they choose to license them to people: 1) the right to copy (reproduce); 2) rt to distribute; 3) rt to create derivative works (works that are based on an original piece but turn it into something different from the original, like a string version of a piano concerto); 4) rt to display; 5) rt to perform publicly; and finally, a 6th right that was added under the Digital Millennium Copyright Act (aka the DMCA): 6) the rt to perform publicly by DIGITAL transmission.
When the 6th right first came up in the Congress, it was SUPPOSED to apply to all public performances of music. However, because the National Association of Broadcasters [editor's note: the organization sponsoring noperformancetax.com] has so much money and can pay for lobbying efforts, it was changed to "digital" transmission. This means that any music broadcast DIGITALLY - mainly webstreaming like radio stations, Pandora and Napster - has to pay for EACH song they play. The Copyright Royalty Board recently established rates for this, which is currently .0018 cents for commercial use. HOWEVER, that is PER SONG, PER USER. When you have millions of listeners, like Pandora does, who listen to roughly 20 songs an hour, that adds up. Ad-based revenue isn't compensating for this, which means that companies like Pandora might go out of business because, as huge as they are, they can't keep up with the licensing fees. This means that users will go back to piracy, because they want the music for free or not at all. So a reasonable licensing fee still needs to be worked out because it just adds up to too much money.
Now, getting back to the point. The "digital" qualification means that... bingo.... ANALOGUE is out. Which means that RADIO doesn't have to pay ANYTHING for ANY songs they play. That's what that website is about - it's about the broadcast industry, who basically forced only the digital services to start paying, is being called out on their crap and they don't want to pay. Obviously you know how I feel about it - if webcasters have to pay, why not broadcasters? There are mom and pop shops trying to pop up on the internet and make a name for themselves as a digital radio station or music download service, but they simply can't afford it. In contrast, the broadcast industry and innovating NOTHING and it owned mainly by Clear Channel. WTF. It's going completely against the new model for music.
Furthermore, those statutory fees are going to copyright owners - YES, that means record labels are getting paid for the use of the sound recording, since they usually own the masters. However, the performance right applies to the underlying "song" copyright as well, which is usually held (at least in part) by the original artists and/or songwriter. This is money that they're not getting, despite the fact that radio makes more than enough money to survive. Yes, radio does have great promotional value; but so does internet radio and streaming services! Why should they alone have to pay for the use of music?
So honestly, I can't support the cause of the broadcast industry - I think they SHOULD pay as long as webcasters have to pay. Broadcasters are jipping songwriters by not paying and I'm just not down with that. I'm not saying the compensation system is perfect or even fair and I'm not cool with the rates right now - I want webcasters to stay in business, so they need to lower the rates or create a blanket license or something, like they do with venues. (PS - that's why you can hear anything at a hockey game or a concert; because the venue pays one BLANKET fee and they can play whatever they want.) I feel that if the broadcast industry was forced to start paying, they could use their leveraging power to equalize the rights. But right now, their just capitalizing off their lobbying power when webcasters are struggling to promote a new music business model, while attempting to be fair to copyright owners. That's my 2 cents.
Ok, I took a look @ the website and I knew EXACTLY what it was the second I saw it.
So, copyright owners [editor's note: this means you, artists!] have 6 rights that are exclusive to them unless they choose to license them to people: 1) the right to copy (reproduce); 2) rt to distribute; 3) rt to create derivative works (works that are based on an original piece but turn it into something different from the original, like a string version of a piano concerto); 4) rt to display; 5) rt to perform publicly; and finally, a 6th right that was added under the Digital Millennium Copyright Act (aka the DMCA): 6) the rt to perform publicly by DIGITAL transmission.
When the 6th right first came up in the Congress, it was SUPPOSED to apply to all public performances of music. However, because the National Association of Broadcasters [editor's note: the organization sponsoring noperformancetax.com] has so much money and can pay for lobbying efforts, it was changed to "digital" transmission. This means that any music broadcast DIGITALLY - mainly webstreaming like radio stations, Pandora and Napster - has to pay for EACH song they play. The Copyright Royalty Board recently established rates for this, which is currently .0018 cents for commercial use. HOWEVER, that is PER SONG, PER USER. When you have millions of listeners, like Pandora does, who listen to roughly 20 songs an hour, that adds up. Ad-based revenue isn't compensating for this, which means that companies like Pandora might go out of business because, as huge as they are, they can't keep up with the licensing fees. This means that users will go back to piracy, because they want the music for free or not at all. So a reasonable licensing fee still needs to be worked out because it just adds up to too much money.
Now, getting back to the point. The "digital" qualification means that... bingo.... ANALOGUE is out. Which means that RADIO doesn't have to pay ANYTHING for ANY songs they play. That's what that website is about - it's about the broadcast industry, who basically forced only the digital services to start paying, is being called out on their crap and they don't want to pay. Obviously you know how I feel about it - if webcasters have to pay, why not broadcasters? There are mom and pop shops trying to pop up on the internet and make a name for themselves as a digital radio station or music download service, but they simply can't afford it. In contrast, the broadcast industry and innovating NOTHING and it owned mainly by Clear Channel. WTF. It's going completely against the new model for music.
Furthermore, those statutory fees are going to copyright owners - YES, that means record labels are getting paid for the use of the sound recording, since they usually own the masters. However, the performance right applies to the underlying "song" copyright as well, which is usually held (at least in part) by the original artists and/or songwriter. This is money that they're not getting, despite the fact that radio makes more than enough money to survive. Yes, radio does have great promotional value; but so does internet radio and streaming services! Why should they alone have to pay for the use of music?
So honestly, I can't support the cause of the broadcast industry - I think they SHOULD pay as long as webcasters have to pay. Broadcasters are jipping songwriters by not paying and I'm just not down with that. I'm not saying the compensation system is perfect or even fair and I'm not cool with the rates right now - I want webcasters to stay in business, so they need to lower the rates or create a blanket license or something, like they do with venues. (PS - that's why you can hear anything at a hockey game or a concert; because the venue pays one BLANKET fee and they can play whatever they want.) I feel that if the broadcast industry was forced to start paying, they could use their leveraging power to equalize the rights. But right now, their just capitalizing off their lobbying power when webcasters are struggling to promote a new music business model, while attempting to be fair to copyright owners. That's my 2 cents.
Thursday, June 4, 2009
Dividing Music Income Between Band Members
I just wanted to post a quick link for artists. I tweeted about this, but for those who don't follow me on Twitter (ahem, you should - it's @sjamieson...shameless plug...), I didn't want to leave you out of the loop. Rich Stim keeps a great IP blog and recently wrote a great post on dividing up your different sources of music income between band members. Of course, you could address this in a BAND AGREEMENT, but if you didn't....
http://www.patentcopyrighttrademarkblog.com/2009/06/music-income-dividing.html
Enjoy!
http://www.patentcopyrighttrademarkblog.com/2009/06/music-income-dividing.html
Enjoy!
Tuesday, June 2, 2009
Linda DeHart Brings Artistic Healing
With her permission, I am proud to have the opportunity to blog about one of my favorite customers, Ms. Linda DeHart. Linda is an artist living in Cambridge, Massachusetts, who specializes in watercolors. About 8 months ago, she came to me in flurry of energy and asked for my help with some copyright licensing matters for her DVD, "Colors in Motion." This project was born out of a much larger installation entitled "A Thousand Windows: A Long Walk in Beauty." The installation contains 1,000 4x6 watercolors; each completely unique and handpainted by Linda. The installation is gorgeous but is very large, requiring a wall in excess of 140 feet. Still, the paintings were so well received that she endeavored to find a way to share them with the world in something more portable than a single installation.
Hence, "Colors in Motion" was born. It is a soothing DVD that sychncronizes Linda's art perfectly with 10 specialy selected pieces of music, most of which were composed by local musicians in the Boston area. I was previleged to go to the launch of this extraordinary project, and it was clear that everyone in the room was deeply touched and VERY relaxed after the presentation. Currently, Linda is meeting with several large healthcare facilities with an aim to have the work displayed on a constantly running screen; perhaps in a lobby, patient rooms, etc. Any place of pain where one might be soothed by a brief respite of art. If you would like to see a bit of "Colors in Motion," you may do so at www.dehartart.com. The DVD may also be ordered through the website.
On top of all this, Linda is receiving quite a bit positive press surrounding her work. Most recently, Linda was featured in Healthcare Design Magazine. The article not only speaks to the healing benefits of Linda's art, but also chronicals her journey in life and art up to this point. I would urge you to take just a few minutes to read through her extraordinary story. If you are an artist, I'm sure you can appreciate the time and effort spent on this project; if you are an industry professional, I'm sure you work with artsits such as this on a daily basis and, like myself, as extremely proud of their success! Enjoy.
Hence, "Colors in Motion" was born. It is a soothing DVD that sychncronizes Linda's art perfectly with 10 specialy selected pieces of music, most of which were composed by local musicians in the Boston area. I was previleged to go to the launch of this extraordinary project, and it was clear that everyone in the room was deeply touched and VERY relaxed after the presentation. Currently, Linda is meeting with several large healthcare facilities with an aim to have the work displayed on a constantly running screen; perhaps in a lobby, patient rooms, etc. Any place of pain where one might be soothed by a brief respite of art. If you would like to see a bit of "Colors in Motion," you may do so at www.dehartart.com. The DVD may also be ordered through the website.
On top of all this, Linda is receiving quite a bit positive press surrounding her work. Most recently, Linda was featured in Healthcare Design Magazine. The article not only speaks to the healing benefits of Linda's art, but also chronicals her journey in life and art up to this point. I would urge you to take just a few minutes to read through her extraordinary story. If you are an artist, I'm sure you can appreciate the time and effort spent on this project; if you are an industry professional, I'm sure you work with artsits such as this on a daily basis and, like myself, as extremely proud of their success! Enjoy.
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