May The 4th Be With Your Brand: A Legal Guide To Making Star Wars Tributes

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By: Brian J. Meli

Once every year, the inner sci-fi geek in all of us gets a chance to reclaim a sliver of that wide-eyed wonder of youth, and unite with like-minded souls in a nostalgic embrace of the pop-culture phenomenon that imbued an entire generation with the solemn precept, “may the force be with you.” Thirty-seven years after the original Star Wars movie hit the big screen, May the 4th has become a force all its own—a day fans across the world come together to pay their respects to the galaxy’s most culturally significant space drama (apologies to Star Trek fans) and to celebrate its enduring legacy. The amplifying effect of social media has only intensified the day’s popularity, raising awareness among casual fans, while inspiring new generations of Star Wars disciples.

But May the 4th has become more than just a commemoration for the young at heart. It’s also a time when marketing managers begin thinking up innovative ways to honor the Star Wars legacy. Increasingly the day has become an opportunity for Fortune 500 companies—eager to connect with the movies’ legions of adoring fans—to link their brands to the Star Wars mystique; a fact that’s becoming more apparent with each passing year. Here’s just a small sampling of what some companies have done to mark the day on social media.

Paying homage to the Star Wars universe is nothing new. The franchise is famous for inspiring fan-created content from all corners of the universe; everything from street art to homemade short films. And the vast majority of it is unauthorized. The practice is so widespread that George Lucas, the creator of Star Wars, was forced to embrace it officially rather than risk alienating the loyal fan base that helped turn his obscure space opera into a cultural movement.

However, as Jedi Master Yoda was keen on saying, “always in motion the future is.” Changing the times are, and circumstances are very different now than when the original Star Wars trilogy was in its heyday. For starters, the Star Wars properties are no longer owned by Lucasfilm, Lucas’ eponymous production company, but by The Walt Disney Company, who purchased Lucasfilm in late 2012 and has since assumed the ambitious task of evolving the franchise for a new audience by investing heavily in its future success. For another, the power of the Internet and social media have taken the production and distribution of fan content to levels that not even the most force-sensitive Jedi could have foreseen in the early 1980s. Long gone are the days when only the kid down the block with the Boba Fett jet pack could share in your Star Wars obsession. Nowadays fan sites can generate huge cult followings, and fan films, fan art and remixes and mash-ups can rival the quality of the genuine articles. While this has unleashed a new wave of amateur creativity that in many ways has been good for the movie business—generating buzz and expanding interest among the general public—it’s also precipitated the need for rights holders to increase their vigilance.

So this year, as May the 4th approaches, it’s worth taking a few minutes to consider the legal implications of paying corporate homage to Star Wars. Contrary to the mantra of the brash, no-nonsense space smuggler Han Solo—whose catch phrase “never tell me the odds” endeared him to audiences—some risks are worth measuring before making the jump to light-speed. So here are a few things to consider before your company channels the force this May the 4th:

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What Every Advertiser (And Ad Agency) Needs To Know About The FCC’s New Net Neutrality Rules, But Probably Doesn’t

 

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By: Brian J. Meli

As the smoke settles from the Federal Communications Commission’s recent decision to reclassify broadband service as a utility, and the tempest that is the net neutrality debate fades from the 24-hour news cycle, one could be forgiven for thinking it’s back to business as usual for broadband Internet service providers (ISPs). It’s also tempting to assume—what with net neutrality charting new highs in search volume, and Google News returning more than two million hits for the term—that everything worth writing about the subject has been written, several times over. But as we await the first lawsuits challenging the FCC’s authority to turn the broadband offerings of Comcast, Time Warner, AT&T & Co. into utility services, and the reinvigorated debate that comes with them, it’s important to understand that there’s more to this story than just making the Internet a more equal place. If you’re in the marketing or advertising business, a lot more. Because the FCC’s new Open Internet Order may soon bring changes to the way you do your job. Here’s how:

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Net Neutrality 2.0: Will The FCC’s New-Look Open Internet Be The Last Word?

 

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By: Brian J. Meli

2014 will, among other things, be remembered as the year the term ‘net neutrality’ was foisted upon the American public’s ever expanding e-lexicon. It began in earnest last January, when Verizon won its high-profile challenge to the FCC’s Open Internet Order, the official name for the Commission’s rules upholding the principle of net neutrality, requiring equal treatment for all web traffic without regard to source. The issue then picked up considerable steam in May when, in response to that ruling, FCC Chairman Tom Wheeler and his fellow commissioners approved a new plan that would scrap the concept of net neutrality as it was understood at the time, and create a new regulatory framework allowing Internet “fast lanes,” which deep-pocketed providers could pay for the privilege to use to push their content at higher speeds. You could say it reached fever pitch one month later when comedian John Oliver pilloried the FCC’s decision in this brilliantly conceived polemic, racking up eight million YouTube hits and cementing the issue in mainstream consciousness. Finally, as 2014 drew to a close, none other than President Obama himself voiced his unequivocal support for net neutrality in a direct address to the nation.

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Mobile Apprehension: The Growing Problem of Counterfeit and Pirated Mobile Applications

By: Brian J. Meli

Most, if not all high-profile consumer brands commit considerable time, energy and treasure to safeguarding their valuable trademark and copyright assets from would-be infringers. Those efforts tend to focus on rooting out domain name cybersquatters, keeping brand names and logos off of inferior knock-offs, stemming the illegal copying and distribution of copyright-protected merchandise, shutterstock_206076736 copyand shutting down the illicit websites that notoriously traffic in all of the above. But there’s a new front in the war on intellectual property, one where the threat posed by counterfeited and pirated goods has quietly become just as insidious. Far from the big-box shelves, the online auctions and the Internet landing pages that have long been the front lines of this conflict; hidden in plain sight only a few taps away, lies a large and expanding commercial ecosystem rife with infringement activity—a place that, until recently, has operated largely outside the focus of brand enforcement officials. This relatively new and dangerous frontier is the mobile app marketplace. Continue reading

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When A Picture is Worth a Thousand Pictures: The Curious Case of Copyright Overlap

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By: Brian J. Meli

At a party over the holidays, a photographer friend of mine asked me a copyright question that seemed straightforward enough. Being an intellectual property attorney, I’m no stranger to these questions, and aside from the festive stylings of Andy Williams and Bing Crosby playing in the background, there wasn’t much different about this particular occasion. But as the question evolved into one of the more absorbing, thought-provoking discussions I’ve had in a while, I realized I’d been too quick to judge.

The topic on my friend’s mind that night concerned the rights photographers have in photographs they take of other artists’ copyrighted works. My friend, you see, is frequently commissioned to photograph famous works of art for various publicity purposes.

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With Operation Full Disclosure, the FTC Fires a “Clear and Conspicuous” Warning Shot

By: Brian J. Meli

If the Federal Trade Commission (FTC) were a division of the Department of Defense, its recent Operation Full Disclosure would be the equivalent of dropping leaflets over a battlefield. Part bid to win FILES-US-GOVERNMENT-FTChearts and minds, part fair warning before punitive actions start raining down, the September initiative consisted of a salvo of choicely worded warning letters addressed to more than 60 U.S. companies, including 20 of the largest 100 national advertisers. The message contained in those letters was clear: advertising has changed dramatically, but advertiser’s disclosure obligations have not.

The FTC didn’t make the identities of those 60-plus advertisers public; only that they represent a sample of various industries and product categories, and that their traditional advertising (print and television) contained seriously inadequate disclosures that could lead to consumer confusion. The consumer protection agency also made a point to emphasize that if an advertiser didn’t receive a letter they shouldn’t take that to mean their advertising complies with current disclosure requirements, suggesting this was a narrowly focused effort to draw attention to a widespread problem.

So what exactly did the FTC hope to accomplish with its Operation Full Disclosure initiative, and what should advertisers take away from it?

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Getty Has An Image Problem: The Portrait of a Modern Copyright Dilemma

 

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By: Brian J. Meli

To be, or not to be, that is the question—
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing, end them?

~Prince Hamlet

Google ‘Getty Images’ and ‘demand letter’ and you’ll have your pick of vitriol-laced horror stories to choose from. The storylines vary case-by-case, but the narrative is usually the same: Getty Images is a predatory company that’s made an unscrupulous art form out of extorting millions of dollars from unsuspecting Internet-goers. Most of the accounts you’ll read go something like this: someone unwittingly uses an image from the company’s library without permission on his/her website, social media page or blog, triggering a pernicious demand letter containing sweeping allegations of copyright infringement. The demand letter then seeks compensation in an amount significantly above what most consider reasonable—but below what’s usually worth hiring a lawyer to mount a defense over—in exchange for the matter being dropped; leading ultimately to the response de rigueur of “just pay the bastards.”

It’s this perceived extortion as a business model that invokes such public hostility, has given rise to entire online gripe communities, and why, I suspect, if you’re conducting an opinion poll among Internet users asking what word best describes the Seattle-based company, you’ll get responses like “unreasonable,” “bully” and maybe even “criminal.” The negative sentiment runs deep, and was on full display recently when a particularly able-bodied recipient of one such demand letter (an intellectual property law firm), responded with a lawsuit of its own. The public’s jubilant response to the prospect of Getty getting some comeuppance sent a loud and clear message: Getty Images is the company everyone loves to hate.

But is Getty really the villain people make it out to be? Or is it merely a misunderstood company doing what it can to protect its interests and guard its digital property in this age of point, click and copy?

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Putting the IP in IPO: How a Newfound Respect For Intellectual Property Turned a Notorious Counterfeit Marketplace Into the Largest IPO Ever

 

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By:  Brian  J. Meli

Before September 19th, the date of its initial public offering on the New York Stock Exchange, many Americans had never heard of Chinese Internet conglomerate Alibaba or its eccentric founder and Chairman Jack Ma. Now the Chinese eBay/Amazon (with 10x and 7x the annual sales of those two companies, respectively), and its iconoclast leader are all anyone in the media and the investment community can seem to talk about. And there’s good reason for that. Not only was the Alibaba Group’s IPO the largest ever for a Chinese-based company on the NYSE, but with an estimated value of $25 billion, it was the largest IPO for any company, ever.

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