Universal Sends Retroactive Bill To Fans It Encouraged To Do Its Viral Marketing

from the how-nice dept

rijit writes in with a story that is equal parts ridiculous and unsurprising at the same time. It appears that Universal Studios recognize that the followers of the cult favorite TV show Firefly would be a great source of viral marketing for the movie based on the show, Serenity. They put together a huge viral marketing campaign, in part with Special Ops Media (a company, I should note, who tends to spam Techdirt daily, despite us never -- not once -- responding or writing about anything they send to us). However, as with so many of these things, it appears that the marketers at Universal forgot to tell the lawyers at Universal, who recently decided to send out cease and desist letters to a bunch of the guerilla marketers they had pushed to promote the film. Adding insult to injury, the lawyers also demanded $8,750 in "retroactive licensing fees" from at least one individual. In this case, it was due to the individual selling t-shirts to promote the movie. This is, like some other recent stories, a case where one side (Universal) is forgetting that the other side adds value too (and, in fact, that they had encouraged them to do so). Some may claim that it's fine for fans to promote the movie, but making any money off of it (such as by selling t-shirts), goes too far. However, that is the same shortsighted thinking we've seen in these other cases, losing the big picture view for the sake of the little dollars that someone who is helping you might make. Allowing fans to sell t-shirts in exchange for heavily promoting the movie almost definitely benefits Universal much more than if they forced everyone to buy t-shirts directly from Universal. In this case, however, you have to give the community of Serenity fans (called "Browncoats") credit for their response. While admitting that Universal absolutely has the right to do this, they feel that if Universal is going to retroactively bill these viral marketing fans for "licensing fees," those fans are going to retroactively bill Universal for their marketing efforts.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    SimplyGimp, Oct 30th, 2006 @ 4:13am

    Obviously

    All this is, is indication of complete breakdown of communication. That and likely a mix of power-hungry suits that don't plan before acting.

    Overall, this isn't exactly shocking.

     

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  2.  
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    malhombre, Oct 30th, 2006 @ 4:24am

    Marketing rights?

    Maybe they are scared that by allowing the promo-fans to sell t-shirts, they are sanctioning that practice and may stand to lose some control over that aspect of thier business.
    But ceast and desist orders, along with "retroactive licensing fees", seems a bit much. Maybe just advise them that they need to seek permission before creating and marketing promo products on thier own?

     

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    JeroenW (profile), Oct 30th, 2006 @ 4:28am

    Re: Marketing rights?

    Since when does a major entertainment company ever "advise" anyone?

     

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  4.  
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    Tack, Oct 30th, 2006 @ 6:31am

    Comparison

    This seems to me to be like a person (an avid Ford racing fan, we'll say) selling floormats for the current model of Ford vehicles (2007's) which he markets as being the style of the 2008's. The issue ford might take with this is that some percentage of people who would buy a 2008 Ford would instead buy the 2008 floor mat and keep their current 2007, hurting sales slightly. However, the real facts are that if this person goes and sells these floor mats at a NASCAR race (and for that matter, even more so if they're nice looking mats instead of something that screams "cheap!" from halfway across the track) then most of the people who buy those mats would find another justification for not buying the latest model car, especially with theirs only being 1 year old. (Perhaps something like "I can't afford it anyway.")

    This situation seems similar to me, with the added kick that in this case, it's like they gave the person money and said "promote Ford" without any further instruction. If he chooses to sell floormats to do this and Ford sees an actual drop in sales, even if they can directly relate the drop to the floormats, it's bad for business for them to then go and ask for licensing fees from the person. All the publicity they would have gained from the sale of the mats vanishes, and yet they're still sell a few less cars.

    In short, it seems like Universal got burned by their own plan here. I'm sure most people agree it's Universal's fault for not specifying that creating actual products (shirts, bumper stickers, whatever) would require a license, but that Universal still didn't say people could either and has the right to sue. My point is that, though they certainly can sue, it's a bad bet in this instance. So what if they win the case and get these licensing fees? These fees will hardly total a fifth of what they'll lose in movie tickets and DVD sales due to the bad publicity.

    I'd simply advise them to think about this for 10 minutes, then withdraw the lawsuits.

     

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  5.  
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    Joe, Oct 30th, 2006 @ 7:21am

    Re: Comparison

    I am baffled by your analogy Tack.

     

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    Moe, Oct 30th, 2006 @ 7:30am

    Re: Re: Comparison

    I am baffled by all analogies Tack posts to this site.

     

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  7.  
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    Trouble Maker, Oct 30th, 2006 @ 8:03am

    two cents worth

    There are these things...their called; Trade Mark and Copy Right infringement.

    Do you have a trade agreement to use the licensed trade mark? If you do not, Go to court, pay the man, cease and desist and or go to jail.

    Doesn’t matter if it is a movie or floor mats.

     

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  8.  
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    Wolfger, Oct 30th, 2006 @ 8:26am

    That's gratitude for ya...

    Without the various Browncoat efforts, Serenity would have been a total flop. But lawyers and mega-corps don't speak the language of "thanks", just the language of $$$$. No cease and desist notices until after they've profitted all they could from the "infringers". Makes me want to sell my legit copy of the DVD and go pirate a copy...

     

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    Victor Thomas, Oct 30th, 2006 @ 8:37am

    Litigation Happy!

    Sounds like legal department is trying to justify their bloated existence. Firms like this spend mountains on money consulting "marketing firms", but yet they totally ignore GOOD business opportunities that literally walk up to them and bit them in the a**. You don't engage events like this with litigation! That is SO STUPID. You research them as possible revenue streams, then encourage that piece to grow, the least effort or money from Universal the better. You manage these events and monetize it. But as in any large bloated corporation you have old fart knockers at the helm too worried about their retirement funds, mortgages and other worldly issues to see that the new bush in front is part of a LARGE forest that they live in too. vt

     

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    Trouble Maker, Oct 30th, 2006 @ 8:42am

    another two cents worth

    I wanted to add this:

    About four years ago a software company had released some software that was a big hit in the genre; they later found that the software users as a community were eager to continue to develop that software to allow it to continue to grow even years after its self life. They even openly and freely released SDK to assist the community in its effort. Then when everyone thought that life was good…S&D orders were issued, litigation ensued, and the community was devastated. How could they do this? In one deft move they have alienated themselves from a large portion of the core community and are now left to their own devises.

    I personally know that even their newest efforts will be met with skepticism and cold receptions; they will never hold the place they once had in the genre.

    This action is very much like that. That is to say if the fans turn from being slapped.

     

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    Prak, Oct 30th, 2006 @ 8:45am

    Re: two cents worth

    You know it would be nice to see people do their homework before giving such uninformed black and white statements with obviously no knowledge of the actual situation.

    For the case of 11th Hour who is the target of not just a C&D but of the demand for retroactive fees, did not do copyright infringement. If you check out the first post on that forum announcing the demand for 9000 US, you will see the link to her cafepress shop. There you can see what supposedly is what the legals at Universal are targetting, and it is not even remotely close to the Serenity symbol used in the movie.

    And to my last recollection the word Serenity and the chinese characters for Serenity are not trademarked. If they are, they should go after the makers of the adult diapers, anyone who invokves the Serenity prayer, and the 1 billion chinese speakers who use the chinese characters of Serenity.

    And the above poster is obviously missing the point is that the company that is "protecting" their copyright and trademark, encouraged fans in the lead up to the release of the movie, to do whatever they can to market the movie(and there was a sub forum on the official movie site where people posted their products for sale etc to help market the movie). Although that offical forum is gone now, it has been archived, simple detective work can be done to find the archive.

    The fandom is not upset about the stopping of fan merchandise, what the fandom is upset about is the heavy-handed tactics being used, whena simple letter without the demand for fees would have suffice. Especially when only a year ago, it seemed there was a carte-blanche on what the fandom could do.

     

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  12.  
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    mike, Oct 30th, 2006 @ 10:40am

    Great movie though!

    Go buy it and the firefly series if you don't have it yet!

     

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    max, Oct 30th, 2006 @ 10:41am

    slave labor

    They thought they could just ask their nice fans to work for free to promote a movie. SURE! we all say... we LIKE working for free.

     

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  14.  
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    Anon E Mouse, Oct 30th, 2006 @ 10:47am

    Precedent

    So correct me if I am wrong, because I am treading legal waters and don’t pretend to know the subject thoroughly, but doesn’t allowing fans to create and sell T-Shirts set precedent for other ventures? For example Marvel sued Cryptic/NSoft because people made characters similar to theirs within the game City of Heroes. The lawsuits main purpose was to set precedent and tell others, making games that make money off our characters is not allowed, and to allow for them to develop their own game (coincidentally with Cryptic). So by this example, allowing a fan to make and sell T-shirts, despite giving free promotion to the studio or movie, sets precedent for someone else to make a game or movie or what have you based upon the property of the studio.

     

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  15.  
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    Anonymous Coward, Oct 30th, 2006 @ 4:35pm

    Could Microsoft bill me for selling a shirt that had the word 'Windows' on it, if I used my own font and artwork?

    I would hope they couldn't.

     

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  16.  
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    Secret, Oct 30th, 2006 @ 8:01pm

    @ mike

    There is no way on God's green earth that I'm going to PAY for Serenity/Firefly DVDs now.

    The only way I found out about it was from seeing a guy wearing a Serenity T-shirt (possibly one of 11th hour's designs) and now Universal is shitting on the people it relied on to make them money?

    This kind of behaviour does NOT deserve to be rewarded, and certainly not after I was reminded about this great series by reading about Universal litigating people who promoting it.

    I'm going to isohunt.com now to find Serenity and Firefly.

     

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  17.  
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    Ray Hill, Oct 31st, 2006 @ 1:26pm

    Mike wrote:
    There is no way on God's green earth that I'm going to PAY for Serenity/Firefly DVDs now.

    This little legal spat is clearly a case of communication breakdown between Universal execs and the law firm that represents the studio's licensing properties. It's already a PR nightmare for them, and I think it's fair to assume that this will not end up escalating to an actual lawsuit.

    If you stop buying Firefly/Serenity DVDs and licensed merchandise, the only thing that's going to happen is the bottom line for the franchise taking a nose dive and the likelihood of a sequel being diminished.

    In the end, what's more important? Punishing a studio (who has been nothing but supportive up until now) for having one PR/legal fiasco, or keeping the franchise alive so we can get that DVD trilogy box set we're all striving toward?

     

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  18.  
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    Evan Waters, Nov 14th, 2006 @ 9:17pm

    Well, I suspect it'll be a long while before we see any sequel anyway, but yeah, I wouldn't boycott Universal based on this unless they're stupid enough to stick to their guns.

    Also, the FIREFLY DVDs are put out by 20th Century Fox, so you wouldn't be supporting Universal anyway.

     

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  19.  
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    Jamie, Jan 27th, 2007 @ 10:58pm

    Re:

    Apparently, the suit has been dropped. http://www.fireflyfans.net/thread.asp?b=2&t=24996&newsid=0

    Turns out a single sentence on the individual (known by the moniker "11th Hour")'s CafePress store that described the rear image on some T-shirts as a "promo" (in her usage, it was intended to refer to it being a way to get the name of the film out there - a LITERAL "promotion") triggered this. Universal's lawyers apparently thought that the usage of the term "promo" would - I'll quote what was mentioned by 11th Hour, here - "This expressly suggests to consumers that the shirts not so marked all had the “Serenity movie promo” (logo) on the back, and in any event appears to ‘pass off’ on the motion picture Serenity itself."

    In other words, in lawyerspeak, "promo" means "official, licensed promotional item", and that was why they sued.

    The case has long since been dropped, after a panicked 11th Hour wrote to them in response, and the lawyers realized that her usage of the term "promo" implied things that she didn't realize she was implying.

    In short: fans are still allowed to sell some Serenity-inspired merchandise, so long as they do not use copyrighted/trademarked material - including the actual logos, one would assume - AND so long as they do not refer to it as "promo" (or, presumably, as "promotional") materials and make sure it is explicitly referred to as a thing that was "inspired by" the show/film, and not actually a licensed, official promo thing.

    Makes sense, and now that we know this, it's not so bad and people can stop freaking out. ;)

     

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