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...

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).

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.

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.

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.”

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?

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.

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!

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.

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.

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?