THE BRAND LAWYER

The Business and Law of Brands and Branding from Steven Weinberg of Holmes Weinberg. PC

MOVING ON, PLAYBOY STYLE

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One of the great brands, PLAYBOY, has decided to undergo some plastic surgery. Launched in 1953 featuring Marilyn Monroe on its cover and as its first Playmate, this iconic brand from its beginning redefined sexual culture and launched a national conversation, with us still today, about the roles of and interplay between men and women in our culture. And while over the years the magazine published articles and stories by such lauded authors as Margaret Atwood, Woody Allen and Haruki Murakami and interviews with Malcolm X, Vladimir Nabokov, Martin Luther King Jr. and Jimmy Carter (who admitted lusting in his heart for women other than his wife), and taught men about high style and great jazz and living the cultured life displayed in the televised voyeurism presented in Playboy After Dark, and the hedonism at play behind the walls of the Playboy Mansions, at the beginning and the end of the day it was about the idealized, sexually charged nude women displayed in its pages.

That day has come to an end. Like all great brands, Playboy has seen itself in the mirror and decided change was needed. Nudity in modern times had been transformed into pornography readily available on the Web, a commodity which no longer had to be payed for. Faced with this reality and the loss of revenue that went with it, Playboy is redefining itself. There will still be provocative images of women, but now it will be a softer PG-13 version (which still drives revenue, like the Sports Illustrated Swimsuit issue and Victoria Secret ads), but there will be more content that sings to Millennial males — visual art, features about liquor, and the like — an updated lifestyle guide for younger men.

Whether or not the brand succeeds in this new face is of course a matter of time. But given the options, as its CCO (Chief Content Officer) Cory Jones said, “it is the right thing to do.” Stay tuned.

THE WORLD’S MOST VALUABLE BRANDS

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Interbrand, a leading brand consulting agency, has released its latest annual report of the world’s most valuable brands. As a sign of our times, the top 6 winners are tech companies. Not surprisingly, for the third consecutive year, Apple took the top spot with Google in second. Apple’s value skyrocketed 43% over last year and is now valued at $170 billion. Google increased 12% to a valuation of $120 billion. The other four top tech companies are Microsoft ($67 billion), IBM ($65 billion), Samsung ($45 billion) and Amazon (up 29% to 38 billion and the first time in made the top ten). Facebook, described as a platform and not a tech company, moved up to number 23 ($22 billion, up 54%).

Interestingly, Apple and Google are also going electron to electron in competing for retail sales. And given the overall goal of tech companies to share in the online retail market, it’s predicted that tracking consumer spending habits online is going to be one of the largest growth areas next year for digital media. The real race is predicted to be between Apple and Google, which alone are the only companies that can effectively scale in both the mobile advertising and mobile device markets. For more on this, see http://digiday.com/platforms/apple-ibeacon-google-tracking-retailers.

BANNER ADS ARE NOT HAVING A BANNER YEAR

With so much attention on social media for brand marketing, you might be surprised to learn that the majority of companies are not relying on social for revenue, but instead for consumer engagement. In fact, recent studies show that social media budgets are still hovering around 10% of the total with most online budgets going to paid ads. But ads are still a challenge – other recent studies show that Baby Boomers and Millennials don’t like and are blocking them. And here are some more important stats recently collected by Hubspot (http://blog.hubspot.com/marketing/horrifying-display-advertising-stats?utm_campaign=blog-rss-emails&utm_source=hs_email&utm_medium=email&utm_content=22283717):

Display ad viewability rates did not budge between 2013 and 2014. (Source: comScore)
The average clickthrough rate of display ads across all formats and placements is 0.06% (Source: Display Benchmarks Tool)
Ad blocking grew by 41% globally in the last 12 months. (Source: PageFair)
There are now 198 million active ad block users around the world. (Source: PageFair)
A 2013 study revealed that 28% of respondents admitted to hiding their activities from advertisers — second only to criminals. (Source: Pew Research Center)
A study revealed that only 2.8% of participants thought that ads on website were relevant. (Source: Infolinks and bannerblindness.org)
A January 2014 study found that 18- to 34-year-olds were far more likely to ignore online ads, such as banners and those on social media and search engines, than they were traditional TV, radio and newspaper ads. (Source: eMarketer)
About 50% of clicks on mobile ads are accidental. (Source: GoldSpot Media)
54% of users don’t click banner ads because they don’t trust them. (Source:BannerSnack)
33% of internet users find display ads completely intolerable (Source: Adobe)
And other studies have shown that Gen Xr’s and Millennials really dislike native ads — stories and videos that look like news or objective information but instead are ads. So overall, there are some real challenges ahead for brand digital marketing.

BEST NEW BRAND OF THE YEAR

Not to be undone by other celebrity online retail stores, Stephen Colbert has announced his own new online brand, Covetton House. Actually, the brand is a satire of the celebrity online retail world, most of which has been a total failure. Colbert calls the Covetton House a “personal curateable lifestyle brand” which blends “classic Southern living, the breezy charm of the English countryside and whatever they had leftover at the prop warehouse.”

Typical of his mocking products is “Want,” a set of “beautifully hand touched suede coasters” for $175. According to Mr. Colbert, “They’re an elegant way to say to guests ‘don’t get these wet.”

A video of Mr. Colbert discussing his new brand is at http://digiday.com/brands/stephen-colbert-launches-personal-curateable-lifestyle-brand/

THE MEAT MEET MARKET

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Just when you thought you’ve seen it all….. Oscar Mayer has debuted a new dating app named “Sizzl” designed to help people find their soul mate using their bacon preferences. According to Oscar Mayer, “Nothing brings people together like a slice of delicious bacon…”In love, as it is in bacon, it’s important to be discerning when selecting your perfect match and to never settle for less than the best.”

Talk about throwing a bone to late night hosts and the world of comedy. And PETA should have a field day with this one. Anyway, I have to stop writing now. The tears of laughter are flowing too hard.

THE “DANCING BABY” WINS ITS CASE

Copyright owners and online media services have been at odds about the responsibility (or lack of responsibility) the services like YouTube, Facebook, Instagram and others have when people post/upload without permission copyrighted content owned by the copyright owners. The compromise (developed earlier for earlier online publishers, like AOL, MySpace, and the like and made part of the Copyright Act with the 1998 amendments known as the Digital Millennium Copyright Act (the “DMCA”)) is a procedure under which copyright owners can send takedown notices to the services identifying the copyrighted work and demanding that the offending content be taken off the site, and then the posting party is given an opportunity to respond. In what has become known as the “dancing baby” case, a mom in Pennsylvania who posted a video of her toddler dancing to the music of Prince’s “Let’s Go Crazy” in 2007 was sued by Universal Music for copyright infringement. The Electronic Frontier Foundation represented the mom (Stephanie Lenz) who obviously was not in the position to do battle on her own against Universal and the Recording Industry of America and the Motion Picture Association of America, which supported Universal. Ms. Lenz’ position was that the use of the song was “fair use” and thus not subject to liability. On Monday this week, the Ninth Circuit Court of Appeals held that copyright owners under the DMCA must consider fair use before asking services like YouTube to remove videos posted to the site. The three-judge panel made it clear that paying “lip service” to fair use could expose a copyright owner to liability. However, the Court also stated that in making the fair use analysis, the copyright holder in moving forward with a takedown notice “need only form a subjective good faith belief that the use is not authorized.” According to the Court in making sure it was getting its message across is that “To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to § 512(f) liability.” The Court added that “a copyright holder’s consideration of fair use need not be searching or intensive…formation of a subjective good faith belief does not require investigation of the allegedly infringing content,” but added that a copyright owner who acts with “willful blindness” with respect to fair use, that is it “subjectively believes” there is a “high probability” that the posted content constituted fair use and “took deliberate actions to avoid learning of this fair use,” likely will face liability if it sends a takedown notice.

Given the state of the fair use doctrine, which is somewhat in disarray, this should get really interesting.

A copy of the opinion is at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

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