More on Home Brew Ads

A followup to this earlier posting: Unauthorized Campaigns Used by Unauthorized Creators Become a Trend [pdf]

Coca-Cola is not the only marketer dealing with marketing it did not ask for. New ads and ideas for campaigns are increasingly popping up without client or agency involvement, whether online, on television or metaphorically nailed to boardroom doors.

Various people with diverse motives are behind the proliferation of vigilante marketing. They are freelancers and fans – even agencies – looking for accounts, and they have shown up this year to advertise or try to advertise products as they see fit.

[…] There are also agencies and creative executives working on what might be called superspeculation, like the team at Vaughn Whelan & Partners in Toronto. It does not work for Molson, but nonetheless created a commercial for Molson Canadian beer and put it on television in October.

“I had an idea that I’d actually been fostering for some time that was perfect for this brand,” said Vaughn Whelan, president and creative director. “My goal was to get one hour in their boardroom and show them five years of advertising, so they could see the future.”

The 60-second commercial, which was an effort to move away from typical beer marketing, showed a bike messenger fighting to persuade the Canadian government to let him deduct his daily food costs as “fuel” on his taxes. It ended with the line: “Respect. It’s a Canadian thing.”

Wary of potential legal issues, Mr. Whelan consulted with several lawyers and informed Molson executives before the spot appeared. After it ran twice, as planned, Mr. Whelan said, “They gave me a letter saying take it off the air.” (Like the unsanctioned iPod Mini commercial, however, it drew the kind of added exposure that publicists call “earned media” – free exposure in the news pages of newspapers like The National Post in Toronto and The New York Post.)

[…] “If Madison Avenue is no longer the evangelist for creative thinking in America, then somebody has to take up that cause,” Mr. Webber said. “That is the calling of all creative people, not just people who work for ad agencies.” Mr. Webber has another motive for wanting to see Coke sales rise: he owns stock in the company. But he is a longtime agency creative executive as well, who helped develop, among other campaign themes, “I am stuck on Band-Aid.”

James B. Twitchell, professor of English and advertising at the University of Florida in Gainesville, agreed that the cultural power of advertising made it hard for creative people to ignore. “If I want to be creative, that’s the place I’m going to go,” he said. “It’s not so much that I want to sell the product, or even care about the product, but it’s where our shared storehouse of stories is.”

Later: the flip side — Marketing’s Flip Side: The ‘Determined Detractor’

“One determined detractor can do as much damage as 100,000 positive mentions can do good,” said Paul Rand, managing director at Ketchum Midwest in Chicago, part of the Omnicom Group. “In the same way that we need to understand who the positive influencers are, it is becoming even more critical to identify and manage determined detractors.”

“The technology puts the power of the press into the hands of the everyman,” he added.

SJMNews on Supreme Court and (c)

Innovation vs. copyright [via How Appealing] [pdf]

The Betamax decision unloosed a torrent of innovation, from iPod to TiVo. However, the digital world of Grokster, in which billions of perfect copies of copyrighted songs are swapped over the Internet, is very different from the analog world of Betamax — and more injurious to studios and recording companies.

It’s time for the court to take a look at the Betamax ruling, to update and clarify but not overturn it. The court’s challenge is to grant copyright holders their rights without giving them a veto over exciting new technologies.

Of course, we can hope that the Court will also remember that new technologies give copyright holders new ways to extract rent from their creations (c.f., cellphone ringtones) — and the policy on copyright has never been that creators are supposed to be able to extract all the rents deriving from their creations — just enough to ensure sufficient incentive to create.

Connection, Please?

Lawmeme points out that some seem to be using the eBay/Baazee sex-video fracas to push for an Indian DMCA: India plans US model cyber law [pdf]

In the wake of arrest of CEO allegedly for selling MMS clips involving school children on its website, government is planning a special law for fixing the responsibility of the provider of online services or network access or operator of these facilities in such situations.

Based on the Digital Millennium Copyright Act of US, the new law would make a online service provider liable for putting out copyright infringing material on the web. At the same time, every service provider would have to put in place a “responsible person” who could be pointsman to deal with cases of copyright infringing material being posted on the web.

Explaining the rationale for such a law, a senior government official said, “In the MMS case the objectionable clip was put on the website by someone who had access to it and not necessarily the person behind it. It was an infringement of the copyright. Moreover, despite the incident becoming a public knowledge the clip was not removed.” [emphasis added]

“An infringement of copyright?” Now that’s an expansive construction of the notion!

An Industry At Threat?

US box office set for record high

Ticket sales at the US box office are predicted to break records this year, with figures expected to reach $9.4 billion, beating 2002’s all-time high.

Overall figures could be dampened by the lack of a Christmas hit like last year’s Oscar-winning Lord of the Rings.

Traditionally, ticket sales during the festive season account for 20% of the annual total.

Although admissions have actually fallen this year, the predicted high is down to increasing ticket prices.

Related: An MPAA “innovation” continues: MPAA Goes After More Bittorrent Site Operators

Also related, albeit a little unnerving — a look at movie promotion: Next Stop, Bethlehem?

[Paul] Lauer’s firm, Motive Entertainment, is best known for coordinating the faith-based marketing of The Passion of the Christ. Motive helped spread early word of mouth about the film by holding screenings for church groups and talking the movie up to religious leaders. When The Passion took in a stunning $370 million at the box office, making it the highest-grossing R-rated film in history, Lauer and his cohorts got a lot of the credit. Earlier this year, Motive was hired by Warner Bros. to promote The Polar Express to Christians. But wait, is The Polar Express an evangelical film?

You’d certainly think so, considering the expansive campaign of preview screenings, radio promotion, DVDs, and online resources that Lauer unfurled in the Christian media this fall. This Polar Express downloads page includes endorsements from pastors and links to church and parenting resources hosted by the Christian media outlet HomeWord. There are suggestions for faith-building activities and a family Bible-study guide that notes, for example, the Boy’s Christ-like struggle to get the Girl a train ticket. “The Boy risked it all to recover the ticket,” the guide observes. “Jesus gave His all to save us from the penalty of our sins.”

[…] After a slow start, The Polar Express has picked up steam and may well make back its $165 million production budget. Considering his track record, Lauer might see a lot more work coming his way. He’s already started planning for his next major project, a big-budget adaptation of The Chronicles of Narnia. Lauer describes the movie as The Lord of the Rings meets the Bible. Now, that’s something everyone can believe in.

Something That Needs Fixing

What a summation to The FCC Frenzy Over Your Cable Box! [pdf]

But as we get deeper into the digital age, these kinds of industry battles are only going to grow more numerous.

Trying to spur innovation and ensure competition when those who control the plumbing have so much power is no easy matter.

The lawyers and lobbyists, it seems, are the only sure winners.

Fantastic to see the problem expressed so well and clearly!

Michael Powell’s Evolving Positions

Indecency on the Air, Evolution Atop the F.C.C.

As Mr. Powell nears the end of his time in office, critics say he has evolved into the most heavy-handed enforcer of speech restrictions in decades. But with Mr. Powell now widely expected to step down, they are hardly gloating about the prospect of his departure; the short list of candidates to succeed him includes another Republican member of the five-person commission, Kevin J. Martin, who – echoing those who say television is too tawdry – has repeatedly argued that the commission and Mr. Powell are not tough enough.

But the broadcasters are also beginning to fight back. In recent weeks, the industry and its supporters – including the screenwriters’, actors’ and directors’ guilds and the American Civil Liberties Union – have filed a series of briefs contending that the commission’s indecency decisions are inconsistent, vague and unconstitutional.

And the Media Institute, which gave Mr. Powell that award five years ago, when he was a commission member, has posted lengthy commentaries on its Web site saying that under him the commission has chilled speech in violation of the First Amendment. […]

[…] A close reading of Mr. Powell’s speeches and statements over the last six years suggests, however, that his views have evolved. Once an unbridled libertarian who championed the abolition of restrictions and expressed little confidence in the government’s ability to oversee the media, Mr. Powell, 41, has become an aggressive enforcer who has expanded restrictions on broadcasters.

The MS EU Decision and Patents

How Microsoft played the patent card, and failed (also discussed at Groklaw)

Microsoft argued that the communication protocols were protected by copyright under the Berne Convention. It also argued that communications protocols were covered by patents either granted, applied for, or that it intended to file before June next year. It specified three in particular, covering DFS, SMB and DCOM.

[…] But Judge Vesterdorf rejected all of the arguments. Microsoft’s lawyers had misread the Berne Convention, inventing a “right of disclosure” that didn’t exist in the treaty. “At most the right of disclosure is a moral right which cannot be licensed,” he added. Microsoft had also misread the European Council’s Directive 91/250, which is the bit of EU law that establishes computer software as literary works and defines the holders’ rights. He bluntly rejected the claim that server-to-server interfaces would be disclosed, and that the protocol documentation represented an early stage design document.

[…] In other words, if Microsoft sincerely believed that its IP had been violated, it would have cried foul already. The fact that it hasn’t, after several years, significantly weakened its argument. Now not every Judge in every courtroom in the world can be relied on to follow such logic, but the fact that an important judge in an important case did should cause some cheer in the open source community.

The Judge even felt it necessary to record a claim by the Free Software Foundation of Europe that found “… a number of incompatibilities deliberately introduced in pre-existing protocols and then altering them with the aim of prohibiting interoperability.”

Summing up, Vesterdorf decided that that competition would be better served by documenting the protocols.

“There are significant possibilities for product differentiation which could enhance competition but which at present are neutralized by Microsoft’s conduct.”

Fans, Games and Owners

Maniacs Make a Modern Mansion

The original groundbreaking computer game changed the future of plot-based games. Its point-and-click interface killed the text parser game designers preferred until then. That engine also allowed a German schoolboy named Sascha Borisow with limited understanding of English to enjoy an American adventure game.

But as technology advanced, those who wanted to keep playing were forced to have dinosaur machines around or use buggy emulators. But Borisow thought he had a better way: He made Maniac Mansion Deluxe, a version of the game that exploits modern technology, available for download to a PC.

[…] The new game is almost identical to the original, except for the graphics and sound. Like the original, it has seven characters you can assemble in groups of three to play the game, and the puzzle-filled adventure has eight different solutions, which vary based on which characters you choose. Every line of dialogue from the original is included in the game, along with Easter eggs.

[…] The amount of energy fans put into the games stuns original programmers.

[…] But Fox doesn’t talk much about the remakes with colleagues who still work at LucasArts. Distribution of these remakes could cause some problems in the courts.

Warren’s group ultimately established a licensing agreement with Vivendi Universal Games, the owner of Sierra On-Line’s old titles.

Other software companies have sanctioned remakes as well. When fans used the Neverwinter Nights engine to re-create modules of Pools of Radiance and Curse of the Azure Bonds, classic Dungeons and Dragons games from the 1980s, IGN put the games in its Neverwinter Vault Hall of Fame.

But LucasArts has never acknowledged Maniac Mansion Deluxe, and Borisow has never contacted the company.