Since leaving BigLaw to start the BrickHouse Law Group, we have spent a lot of time trying to describe our ideal clients. Who are they? What do they have in common with each other?
We have years of experience representing large companies in intellectual property and complex commercial litigation, but we also have worked with entrepreneurs and smaller businesses in all aspects of IP counseling. As a small firm building its brand identity, we cannot be--and do not want to be--all things to all people.
Ultimately, we believe our clients are best described as "Content Creators and Users" -- meaning anyone who creates, distibutes, or otherwise uses "content" in their business. This certainly includes media, entertainment, advertising, marketing and interactive companies who create and/or use "content" protected by copyright or trademark--these clients bring their own special brand of creativity to the work they do, and they often employ or contract with creative people in the process. Of course this can also include any business that operates a website (Hello? Everyone?), because the "content" on those websites comes from people or businesses utilizing their creative skills.
But what is "Content"? I thought I knew what I meant by that term until I read a very thought-provoking post this morning, entitled "I Hate the Word 'Content'", by Jonathan Salem Baskin on his Dim Bulb blog. Speaking primarily to marketers and branding agencies (but also touching a much wider group of net denizens), Baskin makes a strong argument that in calling everything that goes inside the frame "content," we are collectively genericizing--and thereby reducing or even eliminating--the unique, qualitative nature and value of what is created and who is creating it. Read the entire post, because I don't want to over-simplify it, but I think his opening paragraph states the problem well:
Calling the output of writers, musicians, moviemakers and even the artisans of branding's dark arts "content" is like referencing the substance of every meal "food," or labeling the specific events of human experience "life."
Baskin's lament about how this genericization of "content" is adversely affecting the marketing and branding industry is equally applicable in the intellectual property context.
While it's true that short descriptive terms often aid us in understanding broader concepts--for example, it can be helpful to differentiate "content" (the product of creativity in some form) from "data" (a collection of factual information)--simply referring to all things creative as "content" can be very dangerous from an intellectual property rights perspective.
No matter how you look at it, not all "content" is the same. It is critically important to understand the qualitative differences in what content is being created, how it can be used, and how it can be protected. "Content" on a website, for example, may be made up of code, text and images protected by Copyright, logos or brand identities protected by Trademark, personal identities protected by Rights of Publicity or Rights of Privacy, or any combination of these. Various and interconnected components of the same "content," therefore, might have different owners, different usage rights and different legal risks. The same is true for almost any type of "content" in almost any medium. Geoff's Right of Publicity post on the Olivia Munn comic book fracas points out some of these nuances that are easily missed. One simply cannot make good business decisions about the creation and use of "content" without appreciating the different creators and rights involved.
I still think it is appropriate to describe our ideal clients as "Content Creators and Users." In the limited context in which we use the word, I think it fits. However, Baskin's post serves as a good reminder that "Content" is just a surface word -- the value is in what lies underneath.
In January of 2011, Facebook launched its "Sponsored Stories" ad program. As Ad Age magazine explained back then: if Starbucks, for example, buys a Sponsored Story ad, then the next time you check in or "like" a Starbucks, your updated status will run twice for all your Facebook friends: once in your news feed and again as a paid ad for Starbucks. That second time will be on the right side of each of your friends' news feeds, complete with your name and photo, and marked with the words 'Sponsored Story.' (The image on the right is the example from the Ad Age story.)
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property
David B. Groce is a lawyer with 25 years of experience representing clients in North America, Europe, and Asia in
Michael A. Kahn concentrates his practice in copyright, trademark, First Amendment and media law (libel, privacy rights). He is