Field Notes Inside an Integrated Communications Agency

The rise of social media, user-generated content, instant pop culture icons and hefty licensing deals are blurring the lines of intellectual property and public domain issues. Understanding copyright laws and their intention is becoming increasing difficult to navigate.

Copyright issues are complex and exhausting but I admit I really dig it. At Capstrat we don’t attempt to know all the details. We seek legal advice. There are pounds and pounds of material written on copyrights. Even the brief from the patent web site is 277 pages! That’s impossible to reference on a daily basis. Below are a few frequently asked questions that assist us in making the right decisions.

What’s the benefit of using copyright-protected work? It often adds instant value or credibility to the message. These references are often the golden threads that tie cultures together. Companies spend millions to develop their property by creating awareness and affinity.

What options do I have for using others’ material in my work? If copyright-protected, you must gain permission from the owner. That often involves compensation. Obviously the more popular the material, the heftier the fee. If in the public domain, the work is available for use.

What happens if I do not gain permission? You risk lawsuit. Companies (and courts) place a high value on intellectual property. Infringement means loss of revenue to these companies. They protect against infringement vigilantly.

It’s only for internal use, isn’t that okay? No. When you infringe on someone’s copyright you break the law. The risk may be lowered with a limited audience, but there is still risk.

Imagine speeding through a stoplight at 85 mph. You’re breaking the law whether an officer is there to catch you or not.  In addition, today’s instant message world means nothing truly stays exclusively internal. Fact is, some of the recent lawsuits were initiated by an internal whistle blower. Large, deep-pocketed companies are increasingly sensitive to this.

What about if I buy the movie or CD, can I use it then? No. The price you pay does not mean you own the rights any more than buying a copy of “Bonfire of the Vanities” makes you Tom Wolfe.

Can’t I simply change it a little, so it is not exact? The purpose of using valuable copyright-protected materials means utilizing the equity in that material. To be safe from infringement your work would need to change so it is not recognizable by the average person.

If your work is still recognizable, then it’s infringement. Confusion comes from parodies happening before 1982 law changes. We’ve all seen fake products that rip off well-known brands (like Beerwiser). Big brand names believe this causes marketplace confusion resulting in lost revenue.

How about just a snippet, like a sample? Again, without permission and recognizable, it is risky. Obviously, the more recognizable the more the risk of infringement.

So, how do rappers get away with it? They either gain permission from the owner, are forgiven because of their artistic merit or pay huge settlements. Two words: Vanilla Ice.

Are there legal ways to use protected material without permission? Yes. Certain uses of copyrighted materials are protected under law. Artistic expression, including satire and parody, editorial, critique or educational purposes are common. The important distinction is that although businesses educate their employees or produce editorial content, their mission is primarily to make money. That is not protected by copyright law.

So, if I shoot a photo of Madonna then it’s mine to use, right? Yes and no. You own the copyright to the photograph. However, due to the “Right of Celebrity” clause, you do not have the right to use a celebrity’s likeness without permission. It’s important to realize that “likeness” covers not just image but also name, nickname, voice characterization, catch phrases and identifying elements such clothing or hairstyle. Basically anything that can be related to a particular celebrity is protected. Bette Midler was awarded $400,000 from Ford Motor Company because they used a look alike.

How do TV shows, like SNL get away with parody? A Saturday Night Live parody is theatre and considered artistic expression. The network buys episodes from the production company. The network then sells airtime to advertisers to help fund its shows.

Some of my favorite copyright stories:

Basketball bad boy Dennis Rodman filed for copyright protection for his tattoos.

Carlos Santana and George Benson filed to protect their guitar “sound.”

Johnny Carson once filed suit against a company called “Here’s Johnny Portable Toilets.”

Harley-Davidson filed to trademark their distinctive sound. Nine competitors filed opposition arguing their engines sound similar. After six years of litigation, Harley-Davidson withdrew the application.

I’ll admit it.  I have never been a fan of blogs.  When the phenomenon first appeared, the very advantage it offered – now anyone can get their opinions out in cyberspace for the world to read – was exactly what kept me away.  Who are these people?  Why waste your time reading what Joe Schmo has to say on a topic he probably knows nothing about?  As the popularity of blogs grew and even as blogs started appearing that were written by actual experts, I remained unconvinced.  Call me old fashioned, but I preferred my news with some sense of credibility and fact checking behind it.

Then something happened that fundamentally changed my view.  The Writers Guild of America went on strike in November.  This is a huge issue, which not only affects millions of TV viewers, but hundreds of thousands of people employed in the entertainment industry (but that’s a subject for a different post).  Immediately I scoured the web for information about the strike.  I tried the traditional news outlets, TV station sites, newspaper sites, magazines, and came up with nothing.  A few gave it a brief mention, but I was amazed at how such a huge issue that affects a large segment of California’s economy barely moved the needle.  (Of course then I realized, the networks and the news are owned by the very companies the writers are striking against…D’oh!) 

Further research led me to Unitedhollywood.com, an unofficial blog started by some of the guild's strike captains.  Needless to say, I was immediately hooked.  Here was a place where I could get unfiltered information straight from the source.  While obviously biased, this was exactly what I wanted - a blow-by-blow tally of the ongoing fight complete with strategy, tactics and the dirty tricks the other side is playing - things that would never make it in the nightly news.  I’ve got the site bookmarked and now check it daily.  Ironically, reading this blog led me to (gasp!) read other blogs.  All those embedded links were so inviting it was easy to click through and read someone else’s opinion.   I hear that the comments sections are a big part of the blog experience, but I’m not that far gone….yet.

Granted, we’re not five anymore. And true, no one gives me allowance for doing my daily or weekly chores. But, don’t you miss that little easy-to-accomplish responsibility? Don’t you miss the kudos from Mom and Dad (and the quarter they placed in your hand) after you dusted off all the shelves?

Sometimes, in the hectic daily schedule of meetings, strategies brainstorms and budgets, I want something mindless to do. I want a task that I can do with others, have simple conversation and step back and say, ‘Yep, I did that. And I did it well.’

So, friends and coworkers – I propose chores. Capstrat chores.

 Here’s how it may work:

1. You all break into teams, based on the number of chore categories.
2. You name your team, because it’s fun and improves the experience.
3. There’s a chore jar, or some means to ‘pick’ your team’s chore for the week.
4. And then, imagine this, for 15 minutes on one day each week, you get your team together and do your chores. Ok, more like 5 minutes in some cases.
5. You feel great. You stepped away from your desk and escaped the hustle and bustle. You chatted it up with your team, unfroze your brain and did something good.

 Proposed chores:

1. Lint brushing the conference room chairs. (It’s about time! Admit it - they can be kind of gross.)
2. Transporting the white paper from around the office into the appropriate recycling bin.
3. Unloading the dishwasher.
4. Straightening the kitchen and media bar.
5. Wiping down all the conference rooms tables with Lysol wipes.
6. Passing out wipes to everyone to clean their desk areas. (Come on, you know we share germs far too often!)

The possibilities are endless. Personally, I would welcome the opportunity to have a chore or two. Will you?

While you may associate this message with the consumption of alcohol, it seems that a case is being made to apply it to the most basic of beverages. Water. Yesterday in Ad Age, there was a story about a marketing shop and a PR agency that have joined forces to stop the darling of the beverage industry from bottling and selling water.

Mark DiMassimo and Eric Yaverbaum (whose last name sounds like a party drink) have launched an awareness campaign they’re calling Tappening. Basically it’s an anti-bottled-water campaign targeting, as of now, Coca-Cola. The campaign encourages people to drink tap water and buy reusable bottles. Conveniently, they’ve got some for sale that say, “Think Global. Drink Local.” and “What’s Tappening?” Catchy, huh?

Right now DiMassimo and Yaverbaum are planning to collect 1 million used water bottles, stuff them with their message and deliver them to the new CEO of Coke, Muhtar Kent. Their reason for targeting Coke is that it’s the big fish. The goal behind Tappening isn’t to get the beverage companies to recycle bottles. Coke has already agreed to do that. Tappening is about decreasing the demand for bottled water by getting people to stop buying it and helping restaurants and delis profit from the sales of tap water.

All of this sounds great but as a resident of North Carolina, one of many Southern states experiencing the worst drought in recent history, I have to wonder if this course of action is in fact the “responsible” one.  I’ve got seven or eight cases of bottled water in my pantry right now. And if it doesn’t start raining soon, I’m going to buy more. It just goes to show that being environmentally responsible isn’t as easy as it seems.

Our project timelines run the gambit. I haven't been able to nail down what is better, so fast you can't keep track or so slow that you can't remember when the project actually started. They both have pros and cons and in the end it is hard to tell what is just right.

Recently a few projects have come in that moved so fast we couldn't apply our standard process (whole other post) and although it's not ideal there are some positives. You move so fast that no one has time to over think and overspend, but it does leave room for late nights and missing things. Missing things doesn't mean they get swept under the rug, it means really late nights with multiple people working on a project...and a then a blown budget. But they aren't all bad, if you get a good scope document and everyone involved from the get go, it can run really smoothly. Enough budget and resources can make anything run smooth, even if the schedule is start to finish 2 weeks.

On the other side of the spectrum I have had a few that run slower than molasses in January. They seem like a dream, and that's exactly what they are. Things move so slow in snippets of time it is hard to remember what happened from week to week. The possibility of knowledge transfer becoming fuzzy is high and team turnover can happen. The group that kicked the project off might not have the bandwidth in 4 months time when things come around to them and in some cases might not be around anymore. However, if you have your original team and manage not to procrastinate you can execute some well strategized thoughts without

Timelines are like organic chemistry and each property, structure and reaction changes the compound. I don't know what the perfect timeline is. But if I had to guess it is anywhere from 1 week to 1 year.