Thursday, January 29, 2009

In the the intellectual property world, trademark (and copyright) don't play zero-sum games; look at the "Picturehouse" story

In the Internet and media world, do multiple brands dealing with the same or similar material confuse costumers and limit profits?

The conventional wisdom holds that, and trademark law reflects that belief, but it’s probably not really true. A recent book by law professor James Boyle, “The Public Domain” (reviewed on my books blog Jan. 14) challenges conventional beliefs in all intellectual property areas when it comes to the Internet.

I’m reminded of this issue by coming across stories that Time Warner, last May, put to sleep three of its movie brands: New Line, Picturehouse (which was part of New Line) and Warner Independent Pictures. Legally, it closed down some separate companies as a business decision. But why not keep using the trademarks? It looks like “New Line Cinema” is back as a brand again, and Picturehouse (originally a venture between New Line and HBO) is too neat a concept (and a great musical-video logo) to give up. Warner Brothers ought to start reusing it as a brand for eclectic, grownup independent films even if it is no longer a separate company. (The website is still there.) The brand would tell the moviegoer what “culture” of film to expect. That is how the concept of brand is supposed to be used. There is no reason one studio can’t have multiple brands (look at Sony with Columbia, TriStar, and Screen Gems). And studios could make up brands to identify collaborations, and can reuse them later when circumstances change. It just takes paying lawyers for some paperwork. (By the way, “Warner Independent Pictures” seemed less distinguished; why not use Picturehouse for all the indie release?)

In the Internet area, we know that advertisers look at analytics for page requests, bounce rates, pass-throughs and the like. In some quarters, domain names have become a sensitive area and there is a fear that misleading names of even content “paradigms” will take business away from someone else in some kind of legally unfair competition. This has gotten to be more sensitive during the economic downturn.

But this viewpoint assumes ignorant users. Perhaps it matters for product sales, but when it comes to actual content (social and political) the issue is much more complicated. Educated users typically look for things in search engines, and well-constructed and substantial essays and blog entries usually get ranked high for free without any need to pay for placement. “Valued” visitors (those likely to be interested and open to new kinds of thinking) normally will make the effort to locate most of the relevant content, so sites do not “compete” for social content attention the way they compete to sell things.

There is perhaps an issue with free content. Many authors set up websites to sell their books and make conventional sales pitches (along with e-commerce) and find them somewhat ineffective, unless the content is really novel. Sales through Amazon and Barnes and Noble are much more convenient. Should authors offer some of their content free so that it gets read anyway? Some of the discussions by Boyle suggest that the practice does not prevent sales, and might even encourage it. Unlike most products, intellectual property (in both the trademark and copyright areas) is far from a zero-sum game; it tends to become cumulative quickly.

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