Taking on Traditional TV: Is Aereo Legal?

A long-brewing entertainment industry court battle comes to a head this week as the U.S. Supreme Court considers whether or not Aereo, a service that redirects over-the-air broadcast television, qualifies as copyright infringement.

Antennas at night

Will Aereo’s antennas live to fight another day? | Image Credit: Alan Stark

Company CEO Chet Kanojia was at the front of a full court press of media outlets last week, at the same time as media mogul and outspoken Aereo backer Barry Diller went all out in an Op-Ed for the Wall Street Journal.

On the other side, ABC – which is behind the lawsuit – and broadcasters maintain that Aereo is stealing its content and should be paying the same re-transmission fees as cable providers. It’s a position backed by the U.S. Department of Justice, which in March cited Aereo for “clearly infringing” broadcaster copyright.

In the battle for public opinion, both sides have been fighting feverishly.

Public vs. Private Performance

Pushing through the various accusations and doomsday predictions of both sides should the other win, in legal terms this case comes down to whether Aereo is a party to public or private performances. If that sounds somewhat unrelated, it’s down to the older language in which copyright law has its roots.

The Supreme Court is challenged to hold Aereo up to the Copyright Act’s definition of a public performance.

Aereo maintains that it provides an aerial for each individual subscriber household, via private signal, making the relationship one-to-one. ABC and its industry peers will argue that Aereo’s extensive array of micro-antennas constitutes a broadcast to the wider public. 

The influence of the decision has been likened to that of the pro-Sony Betamax decision in the 1980s, which defined home recording technology for decades to come.

Claims on Copyright

Whatever the Supreme Court’s decision, the long running Aereo case reveals the topsy turvy relationship between technology and the entertainment industry.

Almost as often as advancing technology opens up a door to a new business model for creative revenue creation, it also seems to cause uproar by closing another one. Managing the need to effectively distribute and showcase creative works must always be balanced with the rights of the creator to decide when and where their work is used.

If you have questions regarding the use of your intellectual property, be it over the airwaves or any other medium, check in with us to check out your copyright.



One Year On, Bringing Back #BostonStrong

As runners return to  the Boston Marathon this year, a mixture of defiance and caution will be in the air. Unbeaten and refusing to bow to last year’s tragic attack, both athletes and amateurs will nonetheless need to steel themselves with extra vigilance as they cover the course.

Boston Marathon Finish Line

Boston Marathon Finishing Line | Image Credit: BU Interactive

Brands supporting the event will also need to be extra sensitive to the heightened attention and atmosphere, with varied risks depending on whether that support is financial or moral.

#BostonStrong: Risk and Reward

As we explained last year, many organizations moved to associate themselves with the trademark term ‘Boston Strong‘ in the months following the attack.

Even in terms of moral support, there can be natural suspicion when for-profit companies get involved with sensitive subjects. Brands especially must be seen to offer their help only in ways that don’t exploit and/or detract from the human suffering experienced by so many on April 15th last year.

That said, when companies are genuinely moved to support such a cause, their extensive resources can make a major difference in the lives of those who suffered. Commercial involvement in sensitive situations shouldn’t be ruled out, but the risks should be weighed carefully.

The risk for brands supporting this year’s Boston Marathon financially are even more intricate, as the monetary element can easily cross into the specific legal requirements covered by cause-related marketing, also known as commercial co-ventures.

Understanding Commercial Co-Ventures (CCV)

A CCV is formed when an individual or company associated with for profit activities conducts a charitable sales promotion. It may also apply to sponsorship, underwriting, or  arrangement of an event that aims to benefit a charitable organization.

As a relatively recent phenomenon, at least in this form, the legal framework related to CCVs varies from state to state. Roughly half of the country’s states have regulations to govern co-venture initiatives, with some definitions broader than others. For that reason, it’s important to understand when your company is engaged in charitable support that comes under this category.

Both parties, commercial and nonprofit, need to communicate closely regarding the ins and outs of the agreement so that no legal boundaries are inadvertently crossed. Seeking legal counsel before embarking on such initiatives is recommended, to ensure that you comply with regulatory requirements in your area.

The lure is strong for commercial entities to support Boston as its signature athletic event returns to the world stage. After all, there’s always a person behind the corporate logo, and the emotional pull of last year’s events make everyone want to lift up those who return to the race, despite everything that has happened. The head must also guide the heart in these decisions, however, and business must be conducted in a way that both satisfies the law and maintains a sensitive association with the event.

To all the  charities, companies and especially the athlete at this year’s Boston Marathon, we wish you a great day of running without incident. Everyone looks forward to seeing triumph at the finish line and the true meaning of ‘Boston Strong’ from all who take part.


Like a Brand, Lose a Lawsuit? Read Your Social Media Small Print

General Mills logo

Image Credit: Wikimedia

A General Mills update intended to provide clarity for customers is raising more legal questions than answers this week, as new wording in its privacy policy suggests that joining the brand’s “online communities” will now prohibit them from taking the company to court.

The company has subsequently clarified that it isn’t targeting the likes of Facebook fans with this policy requirement for arbitration over lawsuits to resolve complaints, saying simply that “arbitration is an efficient way to resolve disputes.” Even so, the language is broad enough that it could apply to any number of online spaces where customers gather to interact with General Mills and its products.

Whether or not “forced arbitration” clauses will actually be enforceable could vary from state to state, and clause to contract, but that hasn’t stopped the spread of concerns from both media and customers. The relationship between brands and fans on social media is coming under closer scrutiny as a result.

social media under a magnifying glass

Image Credit: ePublicist

Examining the legal side of social media often focuses on the considerations that brands must make before they take the plunge on any particular platform. These channels are relatively new to everyone and naturally involve much more interaction between brand and customer than previous broadcast media, making the relationship all the more complicated, legally and socially.

The General Mills case reminds us that consumers are also faced with terms and conditions at almost every turn of life online.

While it’s far quicker to just click, click, click through, perhaps it’s time to start scrutinizing the small print a little more closely. This is especially true when it comes to mobile apps and social networking tools that know so much about the user; where we are, what we search for and what we buy, all this and more is up for grabs if the terms of use require free reign over that data.

So don’t take the legal side of social media lightly, whether you’re a company or a customer. As with any sign up decision, big or small, the devil’s in the detail (and the detail is in the fine print!)



Is This Snickers Ad About Sexism Sexist?

After calling out generic ads last month, it’s only fair that we make mention when a brand challenges the status quo. That’s exactly what this Snickers ad which takes on sexist stereotypes does… at least it seems to, until the close.

The social media stir is caused by the implication that these construction workers need to eat a Snickers to revert to type, which with a bit of mental gymnastics can be used to conclude that the brand is sexist.

The reality is that the video has clocked up several million views in a couple of weeks and been shared around the world, despite being an Australian advert. It takes a risk, but prompts discussion and amusement, two factors which make it prime viral content.

Only the most obsessed brand advocates will share a tired ad that relies on standard industry cliches. To reach wider audiences and make the most of social media, it’s important to craft content that surprises people and which makes some kind of point.

This is one case that should prompt brands to ask the question, “are we playing things too safe?”

Rebranding: One Giant Leap or Many Small Steps?

The Maxwell House brand reboot raises an important question for any major name considering the change: should the transition from old to new be gradual, or instantaneous?

Or, to follow the coffee maker’s lead and stick with the classics, is rebranding several small steps for a brand, or one giant leap for brandkind?

Maxwell House Good to the Last Drop Ad

Back to the classics? | Image Credit: Wikipedia

Trusted or Tired?

Most brands require refreshment every so often, as logos become tired and imagery becomes outdated.

But equally, fans become attached to what’s familiar. Even when a rebrand is necessary, changing too quickly runs the risk of alienating more existing fans than it gains new ones.

So much investment goes into creating, developing and protecting brand assets that in most cases it makes sense to make changes gradually. There have been plenty of examples over the years of brands that changed their identity too quickly, only to be forced into an embarrassing retreat.

More Money, More Problems

Even the biggest brands have made mistakes moving too quickly. The often referenced example of Coca-Cola’s “New Coke” and, more recently, Gap’s hasty retreat on a new logo, show just how badly established brands can get it wrong.

No matter how well-intentioned a brand update is, fans will make it known in no uncertain terms when they disapprove. This can easily leave the company in question with not only a significant write-off in the marketing budget, but a dent in its public credibility. Given that this is what rebranding is generally intended to prevent, it usually makes sense to move slowly and monitor how well each step to a new brand identity is received.

Swinging back to Maxwell House, the return to its classic “good to the last drop” theme seems like a solid, if slightly uninspired idea.

The decision to use that creepy “SNIFF” video, though? More distressing than de-stressing.

Teen’s Terror Tweet Finally Makes an Airline the Good Guys on Twitter

Airline brands are regularly the subject of poor practice on Twitter, but it’s rare that they’re the ones that come up smelling of roses.

American Airlines Boeing 777 taking off

American Airlines comes out on top | Image Credit: Sergey Kustov

American Airlines achieved that by simply following protocol this weekend, when a 14-year old girl posted a terrorist threat aimed at the airline’s Twitter account.

AA was curt and to the point in its response, making clear that it treats every threat as a security issue and referring the case to the appropriate  authorities.

[EDIT 4/15/14: The teen has since been arrested by Dutch authorities. And this wasn't even the biggest social media story of the day for the industry, as U.S. Airways suffered a major NSFW Twitter blunder.]

That tweet has since been deleted but, as with almost everything posted online (take note, brand managers), it was captured and the story started to spread.

AA deals with teen Twitter threat

American Airlines’ response | Image via Twitter

Although it didn’t really do anything of note, the brand in this case has come out on top and relatively unscathed. That’s not always the case for brands in social media, and especially airlines.

A few example from the recent past:

  • United famously “breaks guitars,” according to one of the first – and still favorite – viral social media complaints.

Once again, we’re reminded that brands are out of control when it comes to social media, making it all the more important to understand the legal boundaries and have policies to guide personal responses specific to each case.

Sometimes all it takes is common sense. But, as this teen tweet exchange demonstrates, that’s not always in good supply when it comes to online interactions.

Rebranding an Entire Genre? Stephen Colbert Set For Letterman’s Late Slot

Only two weeks ago we were talking about Stephen Colbert going into damage limitation mode over a social media campaign to #CancelColbert.

In an amusing turn of events, the controversial host will indeed be calling it a day with ‘The Colbert Report,’ but only because he’s been handed the late night slot that David Letterman is vacating next year.

CBS Late Show with David Letterman -- now Stephen Colbert

Image Credit: Rob DiCaterino

Sure to infuriate critics and delight fans in equal measure, the decision is another that will impact not only the show that Letterman has crafted over 20 years, but is set to rebrand the late night TV landscape  entirely.

Redefining Late Night

The appointment of Jimmy Fallon to replace Jay Leno earlier this year has already paid great dividends for NBC.

Where Leno had a more traditional late night style of light-hearted satire before diving into interviews, Fallon has added a playful streak that leans heavily on short-form skits which translate well to social media. He often brings celebrities into the fun, making these sections all the more viral and playing to the younger audience NBC was looking for. Already, viewers and media pundits have heralded him as a breath of fresh air for the late night genre.

The appointment of Colbert to a similar slot is set to shake up the genre once again. Letterman himself defined the role along with Jay Leno in the early nineties, but their respective late night brands have proved impressively resilient to stylistic changes over the years. Even the niche popularity of Conan O’Brien failed to oust Leno just a few years ago, making this sudden shift in late night names all the more disconcerting for long term viewers.

Rebranding Colbert

Stephen Colbert Portait

WIll the real Stephen Colbert please stand up? | Image Credit Wikipedia Fr

For Colbert himself, the re-branding will be even more extreme.

His Comedy Central show has been running since 2005 on the very left-leaning network, fueled by a character that the host has crafted since his time on ‘The Daily Show with Jon Stewart.’

Brand Colbert is almost entirely made up of this parodic character. To some extent that viewers really don’t know what the real man behind it is like.

Although it will want some of that special sauce that made him so popular on ‘The Colbert Report,’ CBS won’t be letting him port the persona directly into the new ‘Late Show’ role. This will require Colbert to begin the rebranding process before he heads to his new employer. Unlike Fallon, who could simply translate his existing style to the ‘Tonight Show,’ Colbert will be redefining not just the show, but his own stage persona.

How does one go about crafting – and legally protecting – a personal brand? We might be about to get another branding lesson from the school of Stephen.