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.

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

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

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).

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.”

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.

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.