An article that appeared in the Harvard Business Review recently, When fandom clashes with IP law (Madhavi Sunder), highlights some very interesting intellectual property (IP) issues. Issues that may not have been much considered.
The article deals with the fact that the nature of entertainment is changing. Many people today want to do more than simply watch the show, they want to experience it too. Confused? Well here’s an example – the Netflix series Stranger Things, set in the 1980s in the fictional US town of Hawkins, has resulted in a whole range of experiential options. In various cities in the USA there are pop-up ice cream parlours resembling the ice-cream parlour in the series, Scoops Ahoy. There’s a real-life shopping mall named after the mall in the series, Starcourt Mall. There’s a Hawkins fun fair. There are themed Stranger Things nights. There’s an immersive 1980s Hawkins Stranger Things experience in London.
This stuff has been going on for some time and it’s likely to grow. What is changing, however, is the attitude of the media companies, the owners of the rights. Whereas Warner Bros, the company behind the Harry Potter films, decided not to regulate the Quidditch leagues that started sprouting up at US universities when Harry Potter first became a thing, media companies are now taking a more commercial and less accommodating approach. Warner Bros did decide to shut down a venue styled on the Great Hall at Hogwarts. The estate of J.R.R. Tolkien shut down a Lord of the Rings summer camp. A carmaker that sold a real life Batmobile (who wouldn’t want one of those!) was sued for infringement – you could say it was accused of “robin”!
There’s quite a lot to get your head around here. There’s talk in the article of an “experience economy”. There is apparently research that suggests that the average American spends roughly four hours a day in a fantasy world, yes, those words are open to all sorts of interpretations, but you know what I mean. There’s talk of the need to recognize the “human right” to play and “geek out”.
We may well be living in a world of creeping infantilism, but there’s no getting away from the fact that this whole experience thing does present commercial opportunities. But with opportunities come challenges, and companies need to balance profit and goodwill. Fans can quickly become haters, especially in situations where it is the media company that is guilty of the piggy-backing; in the article the author gives an example of fans coming up with a merchandising idea, the media company putting a stop to it and the media company then going on to run with that idea itself.
So just what IP is involved here? Well clearly there is copyright. Copyright protects a wide range of “works”, including literary works, artistic works, musical works, sound recordings and films. One benefit of copyright is that it lasts for a very long time, from 50 years upwards. Another benefit is that the rights given by copyright are wide and, most importantly, include the right to stop unauthorised copying. A third benefit is the lack of formality (in many countries registration is not required), and therefore no upfront cost.
But the lack of registration can also be a downside, in that there is far less certainty with copyright than there is with registered rights; with copyright it is necessary to prove both the existence and ownership of copyright at the time when the legal action takes place and, as that may be many years after the work was created, that is not always easy. If you are relying on copyright it is always a good idea to make use of prominent copyright notices.
There may be some scope for relying on trade mark-style unregistered rights, through the law of unlawful competition and particularly the law of passing off. But these forms of protection suffer from the same problem that copyright suffers from, lack of certainty. Trade mark registration will certainly provide the greatest protection.
It is, of course, possible to protect a whole range of things through a trade mark registration: words, names, character/fictional names, nicknames, signatures, photos, likenesses, logos, get-ups, sounds, colours, logos, smells and even moving imagery. It is also possible to protect trade marks for all conceivable goods or services through a classification system comprising 45 classes.
Once you have a trade mark registration you have a right that can be proved through the simple production of a registration certificate. The right can continue indefinitely provided that renewal fees are paid. The rights can be licensed easily. Once there are trade mark registrations there is a clear portfolio of rights, one that forms an asset that can be sold or even used as security.
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