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

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.

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).

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