Monday, October 30, 2006

Viral Marketing As Implied License?

"Let's be bad guys!" -- Jane Cobb in Serenity

As first reported on Whedonesque, and later picked up (and apart) by the likes of Slashdot and Instapundit, the legal team at Universal Studios Licensing have fired up the C&D machine and taken aim at fan-created merchandise related to the late, lamented television show Firefly and the excellent movie it spawned, Serenity. A fairly routine story on first glance, but there's a bit more to it. Prior to Serenity's release, Universal carefully cultivated the existing Firefly fanbase and actively encouraged them to spread the word about the movie, not only via websites and message boards, but through the creation of home-brewed Serenity merchandise. Indeed, the official Serenity web forum had a sub-forum (now offline) where fans were encouraged to offer their creations for sale. The fans' efforts were moderately successful in generating buzz, and while Serenity suffered a rather tepid theatrical release it's done quite well on DVD.

Despite the fact that the film's underperformance likely killed any thoughts of a sequel, the fans have kept the flame burning, and the unlicensed merchandise flowing. Someone at Universal decided that had to stop, and out went the letters demanding, in some cases, retroactive licensing fees upwards of $9000. Returning fire in rather inventive fashion, the fans who feel that whatever success the movie saw rested in large part on the back of their viral efforts are now billing Universal for their time, to the tune of $1.7 million thus far.

It's unlikely the people on the wrong end of the C&D will take the fight to court, of course. This is unfortunate, as I expect discovery could uncover some very interesting information regarding the creation and development of viral marketing campaigns. And from the defendants' perspective, were it revealed that Universal, either directly or through some marketing agency, did actively encourage Firefly fans to put Universal's IP to use, perhaps they might claim they had an implied license to make limited use of those properties to further the marketing campaign. If so, they might even argue it was a naked license, as it appears Universal let the fans run wild for the past few years -- from the months leading up to the film's release through today -- without exercising any control over the nature or quality of the Serenity-related products they were producing. This is an off-the-cuff analysis, of course, but it bears further examination given the increasing use of professionally organized viral marketing campaigns. Any comments that might expand on the topic would be welcome.

Legalities aside, I won't even bother delving into the obvious "don't bite the fans that feed you" discussion. That lesson has been taught many times over by now, though companies like Universal seem to be slow learners.

Whedonesque has the latest.

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