Tips for Successful Celebrity Endorsements

In the dynamic world of marketing, celebrity endorsement deals have become a ubiquitous strategy for brands aiming to capture consumer attention and build brand affinity. Think Madden Football or the George Forman Grill. In these instances, the product and the celebrity became synonymous in the minds of consumers.

Such partnerships leverage the fame, influence, and credibility of well-known personalities to promote products and services, creating a powerful connection between the celebrity and the brand. While the allure of associating with a famous face is evident, the impact of celebrity endorsements extends far beyond the surface, encompassing various aspects of consumer behavior and brand perception. The psychology behind celebrity endorsements is closely related to the Pavlovian principle of conditioned behavior: the celebrity “rings our bell” so to speak and then we salivate for the product.

Celebrity endorsements are powerful because they leverage the fame, credibility, and influence of these well-known personalities. When a celebrity endorses a product, it creates a sense of trust and aspiration among consumers. People often associate the qualities and success of the celebrity with the endorsed product, making it more desirable and increasing its market value.

Some prime examples of successful celebrity endorsements are Michael Jackson, P-Diddy, and Michael Jordan.

My old friend and client, Frank Dileo, managed Michael Jackson most of his life until his untimely death. Frank put together one of the most lucrative deals in the entertainment industry up until that time, garnering millions of dollars from Pepsi by playing them against their arch-rival Coca-Cola. That deal made Michael Jackson the “face of a new generation.”

P-Diddy, also known as Sean Combs, is not only a talented musician and producer but also a savvy businessman. He has used his influence and personal brand to endorse various products, from clothing lines to fragrances. His endorsement of Ciroc Vodka, for instance, played a significant role in the brand’s success, boosting sales and increasing its popularity among consumers.

Another iconic figure in the world of celebrity endorsements is Michael Jordan. The legendary basketball player has endorsed numerous brands throughout his career, most notably Nike’s Air Jordan line. His partnership with Nike revolutionized the sneaker industry and created a cult-like following for the Air Jordan brand. It is rumored that Jackson received a 5% stake in the brand, earning him around $1.3 billion in 2020.

There are several key goals for a company when they consider building a successful celebrity endorsement campaign:

Building Trust and Credibility. One of the primary advantages of celebrity endorsement deals is the ability to build trust and credibility with consumers. Celebrities often have established personas that resonate with specific target audiences. When a beloved figure aligns themselves with a brand, their endorsement can transfer a sense of authenticity and reliability to the product or service. This trust, earned through the positive perceptions associated with the celebrity, can significantly influence consumer decisions and contribute to brand loyalty.
Expanding Reach and Visibility. Celebrity endorsements offer brands an unparalleled opportunity to expand their reach and increase visibility. A celebrity’s fan base provides an existing and engaged audience, creating a platform for the brand to communicate its message to a broader demographic. Whether through traditional advertising channels or social media, where celebrities often have massive followings, the collaboration enhances the brand’s exposure and can lead to increased brand awareness.
Creating Emotional Connections. Successful marketing goes beyond the functional attributes of a product and taps into the emotional connection consumers have with a brand. Celebrities, as cultural icons, evoke emotions and aspirations. By associating a celebrity with a brand, marketers aim to create an emotional link between the consumer and the product. Whether it’s the thrill of emulating a favorite celebrity or the desire to be part of a lifestyle associated with fame, emotions play a pivotal role in shaping consumer behavior.
Navigating Risks and Challenges. While the benefits of celebrity endorsement deals are evident, there are inherent risks and challenges. The personal conduct and public image of a celebrity can have a profound impact on the success of a campaign. Scandals or controversies involving the endorser may lead to negative associations with the brand. This is handled contractually through the insertion of a key non-disparagement clause. Companies exercise such clauses when an endorser, such as Tiger Woods, is exposed for cheating on his wife, and his downfall affects the public image of the associated brand. The authenticity of the partnership must be maintained to avoid consumer skepticism.

So, whether it’s Michael Jackson hawking soda pop, P-Diddy promoting liquor, or Michael Jordan schlepping sneakers, celebrity endorsements have proven to be a highly effective marketing strategy. They not only drive sales but also enhance brand recognition and consumer loyalty.

Marvel Comics and the Power of Licensing

by Madeline Rains, edited by BNSesq

The backbone of Marvel Comics has always been the wealth of intellectual property possessed by the company. Its success was based around complete ownership of its characters, until Marvel ultimately sold its film rights for select characters to other studios in the 1990’s, following financial turmoil. Marvel’s struggle to regain those film rights illustrates the intrinsic value of licensing in the entertainment industry and the importance of protecting the rights of intellectual property. Marvel’s history, ongoing struggle to gain control of its character catalogue, and connection to Disney, makes it the perfect example of what can happen if intellectual property rights are not protected.

In 1939, Timely Comics was founded on the hopes that it could cash in on the growing popularity of comic books in America. At the beginning, Timely Comics created many characters that modern audiences would recognize today, including the Human Torch and, of course, Captain America. The characters and the comic strips they graced became wildly popular, and the comic book industry boomed. But by the early 1950’s the “Golden Age” of comics was over and readers lost interest in superheroes. Timely Comics pivoted in genre, changed the company’s name to Atlas Comics, and stayed afloat until DC Comics burst onto the scene with its superheroes in 1956. After seeing the revival of the superhero industry Atlas Comics changed the name once again to Marvel Comics in the 1960’s. During this subsequent “Silver Age” of comics, Marvel and DC reigned supreme as arch rivals in a competitive craft.[1]

Marvel would soon became a powerful force with which to be reckoned, as Stan Lee, Jack Kirby and Steve Ditko joined the company and created outlandish characters, bold storylines and eye-catching art.[2] Marvel’s trio of writers and artists harnessed a creative spark that allowed Marvel’s content to become king in the comic industry. The recently deceased Lee, along with Kirby and Ditko had the origins of an idea that would affect generations to come through comics such as The Fantastic Four, The Amazing Spider-Man, X-Men and The Incredible Hulk.[3] Lee, Kirby, and Ditko created some of today’s most iconic characters through their work for Marvel. While many comic books have an underlying story of good and evil that cannot be protectable by copyright, the storylines, characters and the designs were protected by copyright law under the consideration of work-for-hire. Marvel’s story arcs and characters became its most valuable asset.[4] Comics became collectors’ items during the 1980’s with consumers buying up vast numbers in the hope that one day they would be worth a fortune. As the industry boomed, Neil Gaiman, writer of the Sandman series, predicted the bubble would burst. DC and Marvel ignored his predictions and continued to sell comics that practically flew off the shelves and in 1989 Ron Perelman purchased Marvel for $82.5 million.[5]

In 1993 the bubble burst and the comic book industry collapsed under its own weight. Some accused Perelman’s footloose business tactics of jeopardizing the market and causing the collapse. Comic sales crashed by 70% and by 1995 Marvel found itself in crippling debt. As a last-ditch effort to right a sinking ship Perelman combined his other business interests to create Marvel Studios in hopes that the characters that so many people loved would make it to the silver screen and reignite the industry.[6] But to carry this out, Marvel had to make a deal with the devil–the movie studios of the time. Marvel sold the film rights of some of its most well-known characters for quick cash to dig itself out of bankruptcy. What was once Marvel’s most valuable asset, its characters, were now in the hands of other companies that had complete artistic control over new film adaptations. Marvel sold Spider-Man and his rogue’s gallery to Sony Pictures, Iron Man was taken by New Line Cinema, 20th Century Fox received all the characters associated with the X-men and the Fantastic Four, and Universal Pictures purchased the Hulk and Namor with the contingency of heavy–handed clauses.[7] The terms of character licensing allowed Marvel to partition out the aspects of the exclusive rights of their intellectual property that it wished to sell to the studios and limit them solely to that usage. The movie studios could only make films with those characters and were barred from using them to manufacture toys or create video games, for example.[8] Marvel’s silver screen dreams were finally realized, but its catalogue of valuable characters was fragmented almost to the point of being unusable.

By 2005, Marvel regained financial stability and put its plans into motion to create films under its own moniker after seeing how successful other film companies were becoming with Marvel’s characters.[9] The company was able to grapple the rights to Iron Man away from New Line Cinema whose option had expired after their inability to bring a film to the big screen and the rights to the Hulk from Universal Studios thanks to the time sensitive clauses built into the negotiations.[10] Marvel Studios began to blossom as Kevin Feige was employed to oversee the future of the Marvel cinematic universe. In 2008, Marvel Studios burst onto the scene with a $585 million dollar blockbuster in Iron Man. Marvel’s ambition caught the attention of Disney, who in 2009 bought the fledgling film studio for a staggering $4.3 billion, a far cry from the $82.5 million that Perelman spent in 1989. With Disney backing Marvel’s endeavors the comic giant was able to reclaim the intellectual property rights it sold on the verge of bankruptcy.[11] Since Marvel characters began to grace the silver screen in 1986 the catalogue of superhero films have generated $12 billion in total gross revenue and shows no signs of slowing down.[12]

The value of Marvel’s characters shot it to stardom, delivered it from bankruptcy and earned it billions in film revenue. Without its strong characters, storylines, branding and quick decision to sell its rights Marvel would have been another comic company that succumbed to the market crash. Marvel’s struggle speaks volumes about the intrinsic value of intellectual property and the importance of licensing.

Madeline Rains is a senior at Belmont University majoring in Entertainment Industry Studies and minoring in Business Administration. This article was written with her love of the film and television industries in mind. She is a lifelong Tennessean and loves the city of Nashville. She plans to stay local as she transitions from Belmont into the workforce.

[1] DeForest, Tim. “Marvel Comics.” Encyclopædia Brittanica. Encyclopædia Brittanica, Inc.,September 6,2018. Accessed October 26, 2018.

https://www.britannica.com/topic/Marvel-Comics.

[2] Ibid.

[3] Lambie, Ryan. “How Marvel Went From Bankruptcy to Billions.” Den of Geek. April 17, 2018. Accessed October 26, 2018. https://www.denofgeek.com/us/books-comics/marvel/243710/how-marvel-went-from-bankruptcy-to-billions.

[4] Sudhindra, Nicole J.S. “Marvel Superhero Licensing.” WIPO. WIPO, June 2012. Accessed October 26, 2018.

http://www.wipo.int/wipo_magazine/en/2012/03/article_0005.html.

[5] Lambie, supra.

[6] Lambie, supra

[7] Perilstein, Zach. “A Visual Guide to Explain the Evolution of Marvel Character Rights.” Boardwalk Times. Boardwalk Times. Accessed October 26, 2018.

[8] Rob Aft and Charles-Edouard Renault. “From Script to Screen: The Importance of Copyright in the Distribution of Films.” World Intellectual Property Organization. Accessed October 26, 2018.

http://www.wipo.int/edocs/pubdocs/en/copyright/950/wipo_pub_950.pdf

[9] Johnson, Derek. 2012. “Cinematic Destiny: Marvel Studios and the Trade Stories of Industrial Convergence.” Cinema Journal 52 (1): 1–24. Accessed October 26, 2018. https://bunchproxy.idm.oclc.org/login?url=https://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=82990603&site=ehost-live.

[10] Sudhindra, supra.

[11] Lambie, Ryan. “How Marvel Went From Bankruptcy to Billions.”

[12] “Marvel Comics.” Box Office Mojo. Box Office Mojo, n.d. Accessed October 26, 2018.

https://www.boxofficemojo.com/franchises/chart/?id=marvelcomics.htm.

Intellectual Property Law: Is it relevant in today’s high speed digital age?

Editors Note: Today we begin an intriguing series of articles regarding the relevance of intellectual property concepts in an age in which the likes of John Perry Barlow, founder of the EFF, have declared that because everything can be reduced to digital existence, the need to protect creations of the mind is irrelevant. We disagree. We hope you enjoy this thoughtful series of articles by my intern, Lucas Evans.

Why should we care about intellectual property right now? That’s an easy one. IP law matters right now for two compelling reasons: the ubiquity of the internet, and the burgeoning use of artificially intelligent machines in workplaces.

The internet has changed the way we think about ideas and their spreading. Content and media are accessed in the click of a button, lightning-fast. And while we used to access creative works in relation to their physical embodiment, we now access them in relation to a series of 1s and 0s that have been converted into recognizable content by our machines. This has thrown off our conception of what it means to own an idea or a creative work.[1]

On a different and perhaps more anxiety-inducing note, AI has made a grand entrance into our economy. Because of the impact artificially intelligent agents will have on our world in the coming years, tasks typically reserved for humans will increasingly become turned over to robots.[2] If robots can perform physical and remedial mental tasks that humans have traditionally performed throughout history, what will humans do? What will our ‘work’ look like? The value we bring to the workplace and to the world will increasingly be defined by our capacity to be creative. Our ideas and creative works of the intellect will be even more commoditized than they are now. It is not unreasonable to assume that at some point, robots will perform most of the duties we currently perform, and we will have to ‘get creative.’

And what is the body of law that governs the creations of the intellect? Ah, it’s IP. Copyrights, Patents and Trademarks. These laws and policies that account for issues that creators deal with will become more important to a broader range of the population in the coming decades.

For this reason, we are going to take a deep look at the concept of Intellectual Property: its history, its struggles and disruptions, and current state in the age of the internet and AI. This is the first of three installments dealing with this important body of law.

Origins

The idea of owning property is intimately tied to the American conception of liberty. To show this, a thought-experiment is in order:

Say that a 1600s settler decides to build for himself a cabin in a remote forest somewhere in Colonial America. He chops up the wood and he nails boards together. He stacks everything in a neat and organized way so as to create a shelter. Surely this cabin is his property. But what about the cabin makes it his? It’s not the wood in itself. He has no more right to ‘wood’ than anybody else. And it’s not some natural law that protects the cabin. In the absence of government, nothing would prevent a gang of bandits from killing him and taking it. Instead, it is the creation made from the wood that he owns, which, if it is to be protected, will be done so by a governing body. And it follows that he then owns the actual wood because it is the physical manifestation of his idea of the house.

The reasoning that anchors our conception of property can be traced directly to Enlightenment thinker John Locke, who in his “Two Treatises of Civil Government” argues that, “every man has a property in his own person: this nobody has any right to but himself. And the labour of his body, and the work of his hands, we may say, are properly his.”[3] We have the right to the fruits of our labors. If we didn’t, what incentive would there be for anyone to work or create things? What value could a human possibly add to a society? We must at a minimum be able to own the fruits of our own labors if we are to be a society in which the members are truly free.

Now consider: doesn’t it seem to follow that we have property in any creation of the mind which is manifested in physical form? This would include novels we author, songs we write, inventions we design, and many more things. To the founding fathers, the consensus seemed to be a mitigated ‘yes.’

James Madison had a broad understanding of property, and defined it in a 1792 essay as such:

“That dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual… In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them.” [4]

That someone could legally protect the flow of their ideas was something practiced primarily in England, where this issue was largely settled under common law and the Statute of Anne. Madison was a proponent of the government protection of the communication of ideas, such that the ability to speak freely was one of the rights fundamental to a free society. Indeed, for Madison, “as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

Thomas Jefferson, on the other hand, was much more skeptical of the government protecting creative expressions. In a famous letter written to Isaac McPherson in 1813 (which is often cited by proponents of broad copyright reform), Jefferson discusses the problem he sees with legally protecting ideas – namely, that they are inherently unconstrained:

“ It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”[5]

Indeed, as Jefferson says, ideas are, in nature, non-rivalrous. That is to say that one person’s use does not diminish another’s. My reading of John Locke’s ideas does not take away someone else’s ability to read him. And my ability to read instructions to create a Lego house does not diminish someone else’s ability to use that same idea. Additionally, ideas have limited exclusivity. I can only exclude someone from using my idea insofar as I keep it to myself. As soon as I divulge it to the world, I can’t stop people from using it. Jefferson realizes these properties of ideas and is thus skeptical of the government protecting them. But he goes on to say,

“Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.”[6]

It’s worth noting that this letter was written in reference to a specific patent lawsuit Jefferson was involved in, and so the generalizability of his statements to the whole body of IP may be too big a leap. But from this passage it seems that Jefferson is at best ambivalent to the notion of ‘society’ giving its citizens exclusive rights in their ideas. He recognizes that societies can and do reserve monopolies for authors and inventors, and that this may indeed foster innovation.

In any event, the product of Madison and Jefferson’s deliberations in the 1780s was a clause in our Constitution specifically dedicated to patents and copyrights, the original tenets of intellectual property law:

Article 1, Section 8, Clause 8 provides that Congress may “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The founders gave us the right to limited monopolies on our creative works and inventions, where for a limited amount of time we are the exclusive owners of the expressions of our creative ideas. From this clause Patents and Copyrights were born. Statutes were enacted by Congress, and the Copyright and Patent & Trademark Offices became arms of our legislative branch. Since then, we have seen myriad technological innovations which have tested the strength of these legal mechanisms. From the time when Jefferson and Madison debated it, throughout all of these disruptions, though, the balancing act has remained the same: should ideas be subject to pure utilitarianism and not protected by law? Or is Madison’s framing of ideas and opinions as hallowed property better for society as a whole? Madison’s version made it into the Constitution, and since then it seems that the structures put in place have been largely successful in fostering innovation and creativity. The internet, however, has posed a new problem: ideas are even more perfectly and indefinitely copied, and it is harder to tell the expression from the idea itself.

The next post in this Intellectual Property series will be concerned with how the body of law has molded and transformed and grown throughout the many technological disruptions of the past one-hundred years. Thanks for reading!

[1] https://www.wired.com/1994/03/economy-ideas/

[2] https://learnmore.economist.com/story/57a849c338ba0ee26d98a68d

[3] http://oll.libertyfund.org/titles/locke-the-two-treatises-of-civil-government-hollis-ed#chapter_16239

[4] http://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html

[5] http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl220.php

[6] Ibid

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Secret Blend of 11 Herbs: Three Things to Know about the 2016 Defend Trade Secrets Acts

By Drew Harris

How delicious are those 11 “secret herbs and spices” assembled by Harland Sanders in 1930 for his popular “Kentucky Fried Chicken” sold at his local service station? It was so “finger lickin’ good” popular that the Governor Ruby Laffoon proclaimed him a “Colonel” and he started franchising his chicken business. But rather than patent the recipe, he chose instead to keep it a “secret” in order to protect it. The KFC Original Recipe is, in fact, perhaps the most famous and notable trade secrets in history.

In order to protect the ingredients, the secret original recipe, handwritten and signed by Colonel Sanders himself on a now yellowing piece of paper, is held in a special segregated company vault in Louisville, KY, along with 11 viles of the ingredients for good measure. Throughout time, it has only been seen by a handful of employees (all of whom must, of course, signed ironclad pledges of confidentiality). The vault itself, which can be accessed by only two people working in tandem, is monitored around the clock by video and motion-detection surveillance systems.

To further insure that the secret remains so, the 11 herbs and spices are mixed in separate halves – one half by Griffith Laboratories and the other by McCormack – and then combined together all at once by the latter to ensure that nobody outside of the companies should ever know the incredibly lucrative blend.

Many have claimed to have discovered various versions of the Original Recipe, one of which was published in the Chicago Tribune, however KFC maintains that those are not even close. The ability to maintain the secrecy of the Original Recipe is paramount to the business of KFC, and establishing it as a trade secret offers the fast food giant the best protection. If KFC (or their parent company, Yum! Brands) were to have patented the Original Recipe, the recipe would’ve been published, and made available to the public after the expiration of the patent, allowing anybody to copy the secret recipe verbatim, which would dramatically devalue the KFC brand.

The story of KFC illustrates that trade secrets are very lucrative commodity to U.S. companies such as McDonalds, Coca-Cola, and many others. That is why the Defend Trade Secrets Act of 2016 (the “DTSA”) was an important piece of legislation. The DTSA is a powerful tool for companies like them that ferociously defend their trade secrets.

A Brief History of Trade Secret Protections in the United States

Protecting Intellectual Property has long been important in the United States, and indeed internationally as well, however trade secret law has historically taken the backseat to copyright, trademark and patent law on a federal level. Until 2016, with the passage of the DTSA, trade secret law was handled exclusively on a state-to-state basis, with statutory law differing in respect to statutes of limitations, definitions, application, and other relevant criteria. Companies were required to jump through certain hoops established variously by state legislation and court precedent to establish a trade secret.

Some progress was made toward uniformity in 1980, the Uniform Trade Secrets Act was approved by the American Bar Association. Nearly every state that has enacted a trade secret law has adopted the UTSA (New York and Massachusetts being the two states with trade secret law that have not). Another reference is the Restatement of Trade Secrets, which provides a summary of the varying trade secret laws passed in states throughout the US.

In 1996, Congress passed the Economic Espionage act (EEA), the target of which was stopping trade secret theft by foreign governments, individuals, and entities in general. While the EEA did provide a step in the right direction concerning Federal legislation regarding trade secret theft, instead of provide a private cause of action the EEA instead relied on the U.S. Attorney’s office, which was already strained.

Finally, in 2016, the DTSA greatly altered the way in which U.S. companies can seek remedy for trade secret misappropriation and changed the legal landscape of trade secret enforcement in the following ways:

1. U.S. Companies can now hire their own lawyers

Under the DTSA, rather than relying on enforcement actions of the U.S. Attorney General’s Office, companies now can file private legal actions to protect their trade secrets and seek remedies from individuals or companies that infringe, steal or misappropriate them. The DTSA provides the necessary “teeth” to enforce these valuable rights.

As noted above, under the EEA any company in need of litigation regarding the misappropriation of their trade secret had to go through the U.S. Attorney’s office. By allowing the owners of trade secrets the ability to hire their own counsel, companies are in control of their own enforcement of intellectual property. Companies can also seek out lawyers that have a greater wealth of knowledge pertaining to trade secret law, providing them a benefit that a prosecutor in the U.S. Attorney’s office might not afford. Furthermore, the office of the U.S. Attorney juggles myriad cases at once involving many national issues – it thus cannot consistently give a company in need of trade secret litigation undivided attention. If the company hires its own private counsel, they can choose one who has the appropriate work ethic, knowledge and motivation to pursue the case. Thus, companies that take legal action regarding their trade secrets now are afforded the possibility of more attentive, accountable, and (quite possibly) knowledgeable attorneys- at least in the field of trade secret litigation.

2. There is now a federal (national) standard to use for trade secret cases. Much simpler than before.

The DTSA provides much needed uniform definitions for certain critical terms, most notably “trade secret” and “misappropriation.”

The DTSA definition of trade secret, for example, is rather broad. It allows protection of a wide range of proprietary information, specifically: “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” This is very similar to definitions found in prior laws dealing with trade secret, such as the one found in in 18 U.S. C. 1839(3).

Acts that constitute misappropriation are also specifically explained in the DTSA, giving guidance to litigants as follows:

acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

disclosure or use of a trade secret of another without express or implied consent by a person who—

used improper means to acquire knowledge of the trade secret;
at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was (a) derived from or through a person who had used improper means to acquire the trade secret; (b) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or (c) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or

before a material change of the position of the person, knew or had reason to know that—

the trade secret was a trade secret; and
knowledge of the trade secret had been acquired by accident or mistake.

3. U.S. Companies Can Seize Assets and Freeze Business of individuals or entities that misappropriate their trade secrets (if they can make a strong enough case for it)

In addition to these uniform definitions and the ability to retain private counsel, section 2 of the DTSA granted owners of trade secrets the very powerful, though specific, right to seizures of personal property in order to enforce their rights. They may now act through court order to seize the assets and freeze the business activity of an individual or entity who is potentially misappropriating their trade secret, or disseminating information stolen from that company. This type of civil seizure generally occurs ex parte (meaning only one of the parties to the lawsuit, in this case the plaintiff, is in the court room) prior to a court formally finding misappropriation in the actions of a company against which a claim was filed. The court grants a TRO and seizure order. This seizure, though very useful and necessary in certain situations, must meet a laundry-list of criteria, in order to make reasonably certain that this ability is not used maliciously or in bad faith.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][i] These seizures are important as they provide previously unavailable legal strategies for protecting trade secrets.

In Conclusion…

The most noticeable effect of the DTSA will be the ability of companies to privately pursue legal action against individuals or business entities that misappropriate their trade secrets. While the ex parte seizures (civil seizures) are exceptionally noteworthy, the instances in which they can be used are exceptionally rare, making them a useful, though seldom-used ally.

The passage of the Defend Trade Secrets Act of 2016 might not have made the front page, but it has radically changed the legal reality for U.S. companies that need to defend the trade secrets their business relies on.

The Entire Language of the Defend Trade Secrets Act of 2016 can be found here.

Drew Harris is a rising junior at the University of Tennessee and an summer intern at Shrum & Associates. Drew’s goal is to attend law school and possibly practice entertainment law upon graduation.

[i] The following is the criteria necessary to be granted a court ordered ex parte seizure under the DTSA:

– Order following Fed. R. Civ. P. 65 or some other equitable relief would have to be insufficient in order to obtain this order

– Must be immediate and irrecoverable damage done if the seizure is not ordered and carried out

– A denial of the seizure order must harm to applicant, and that harm must: (A) be greater than the harm to the person/entity against whom/which the seizure is ordered; and (B) significantly outweigh the harm done to any third party by such a seizure

– Chance of success of applicant in showing that the person against whom the seizure was ordered indeed did misappropriate or conspire to misappropriate his trade secret is highly likely

– The request by the applicant is reasonably particular as to the property in need of seizure, location, basically the extent necessary under the circumstances

– The person against whom the seizure is ordered would attempt, or be successful at destroying, moving, hiding, or making his property unavailable through other means if he was served a notice by the court

– Finally, the applicant has not already publicized his request for a seizure, which would counteract the purpose of an ex parte/ civil seizure in the first place[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Purple Reign: Lessons Learned from Prince

By Morgan Wisted & Barry Neil Shrum

Just over half way through, and already it has been a tough year of losses in the music industry. Glenn Frey, one of the members of my favorite band of all time, the Eagles, kicked off the year early when he passed in January, shortly after the passing of pop icon, David Bowie. Then, country fans ached greatly at the loss of the “Okie from Muskogee” when the legendary Merle Hagger died on his 79^th birthday. Later, fans of the Beastie Boys bemoaned the loss of John Berry. Next came the horrifying news of the senseless murder of American Idol finalist, Christina Grimmie, proving that youth is no more an insulator from the Grimm Reaper than is fame. Finally, comes the loss of Prince, perhaps the greatest pop icon of all, who passed suddenly, thereby reclaiming again his self-proclaimed title of the “artist formerly known as . . . .” So, the collective heart of the industry is indeed heavy as the annual list of dead celebrities for the 59^th Grammy Awards show grows larger.

In death, we are all equal in our solitude, but for our estates the relative differences are significant. When celebrities set off for that great entertainment festival in the sky, they often leave behind enormous estates: for example, founding member of the Eagles, Glenn Fry left behind an estate estimated to be worth over 90 million dollars when he passed. While magazines like People, Rolling Stone, and Time quickly assembled the expected tell-alls in memory of the greatest “fill in the blank” to ever live, these entertainment-oriented glamor pieces focus primarily on the glitz and glitter that was the celebrity. They rarely explore what happens to the wealth and intellectual property of these great icons after the caskets close. This unique series will examine all of that and more.

Prince may very well be the prime example of the myriad of legal issues that often surround a celebrity’s passing. On April 21, 2016, the mastermind behind platinum selling albums and years of successful tours, left this world for the afterworld: a world he so fondly talks about in his hit Let’s Go Crazy. Although one can assume that Prince has punched his ticket to “a higher floor” and is currently living in that “world of never ending happiness where he can always see the sun, day or night,” here on the ground floor, his family and estate is shrouded in mystery and darkness that result from an unplanned estate. As the Prince song explains, “…in this life, things are much harder than in the afterworld. In this life, you’re on your own.” Well, that last part may not be entirely true: there were 700 people who claimed to be related to Prince, so they are not “on their own.” As it is with many celebrities, Prince’s death opened a Pandora’s box of legal issues that will be sorted out for months and even years to come.

Now, the question that everyone seems to be asking in regard to Prince is, where is the will? Many, including award-winning filmmaker Ian Halperin, have described Prince as a shrewd businessman who would have most certainly been prepared for his eventual demise. Others, namely his sister, Tyka Nelson, has filed documentation in probate court declaring that he died intestate, i.e., without a will.

In the U.S., each individual state has its own laws regarding what happens to someone’s estate when someone dies without a will. Since Prince lived in Minnesota, it will be that state’s statute that determines what happens if Tyka Nelson’s claims turn out to be true. According to Minnesota law, when a person dies intestate, the estate property is distributed according to the so-called “intestate succession laws,” which is basically a flow chart of descendants. The Minnesota’s Heir Flowchart is available here. As you can see from the chart, since Prince’s parents and only legitimate son, Ahmir Gregory Nelson, are deceased and he has no confirmed children (at least not yet), the first line of descent is his siblings, meaning that Tyka Nelson and his other five half siblings, John Nelson, Norrine Nelson, Sharon Nelson, Alfred Jackson and Omar Baker, stand to benefit the most from the non-existence of a will.

So it’s best not to be too hasty. The judge in the probate case anticipated that paternity might be an issue, so he ordered DNA testing of Prince’s blood and opened a period of time to allow such children to come forward and stake a claim. Several have, of course. There’s Carlin Q. Williams, who claims that he is Prince’s biological son and the “sole heir” under Minnesota statute. Marsha Henson, Williams’ mother, swore in a statement that she had unprotected sex with Prince in Kansas City, Missouri, in July 1976, after which she conceived Williams. Another as of yet undisclosed man in his 30’s claims, through Heir Hunters International, that his mother has several sexual encounters with the pop legend in “the 80’s.” As indicated earlier, over 700 people ultimately came forward claiming to be in Prince’s blood line, including cousins, half-siblings, children, etc.

This is, perhaps, the most damning result of dying intestate, other than of course the actual death itself. Good estate planning could have avoided this chaotic Minnesota “gold rush” by designating the intended beneficiaries. Just as important, if not more, than that, however, is the avoidance of estate taxes.

So, for the first installment of this Law on the Row series entitled Purple Reign: Lessons Learned from Prince, let’s review some some good reasons that a celebrity needs quality estate planning. When someone such as a celebrity, who has acquired a great deal of wealth and assets, passes away, or in fact anytime a great deal of money is involved, you can expect to see a throng of people seeking their alleged share of it. As we now see, Prince is no different. With an estimated worth of $300 million, it will not be an easy quagmire for Prince’s family to navigate, and it be littered with numerous pitfalls and challenges as they traverse it. To date, the journey to peace for the Prince Estate has been littered with lost wills, quickly formed publicity rights acts, a vault of unreleased Prince songs, and the aforementioned 700 people claiming to be Prince’s half sibling! So, at least for now, the issue of “where Prince’s fortune will go” is still a mystery. That leads us to some of our first lessons from the Purple Reign:

Settling estate issues without a will is very expensive and time consuming; best to have the issues sorted out before tragedy strikes;
Planning ahead allows a celebrity to structure certain trusts and other legal vehicles designed to reduce and avoid enormous estate taxes; it is estimated that out of the $300 million dollar estate, Prince’s heirs, whoever they may be, will pay upwards to 50% to various governmental agencies, and then even more to court-appointed administrators.
Proper estate planning also reduces the problems we see in the Prince fiasco. If there were a written will, there’d be no doubt to whom Prince wanted his estate to descend. As it is, the fight will continue and the legal bills will mount.
Important descendants may not get anything. If the celebrity marries a second or even a third spouse, will there be anything available for prior spouses and/or children? Many intestate laws give everything to the current spouse, leaving prior children and spouses out of the loop, a end result that may be intended by the celebrity.

Just as important, if not more so, when you are dealing with a celebrity, is who has control of the the intellectual properties involved, the copyrights, trademarks, any patents, and of course, the rights of publicity. When no will is involved, these properties are treated just the same as the money and pass according to the state’s intestate procedure.

So, in Part 2 of the series, will explore the issues surrounding Prince’s copyrights, including the fate of those hundreds of songs and sound recordings waiting to be released to the public. Who owns those recordings discovered in Prince’s vault? Can the family release them? Who owns Prince’s publishing. Can the family terminate the transfer of any of those rights?

Finally, Part 3 discusses the implications of Prince’s post-mortem rights of publicity. For anyone familiar with this topic, the hastily formed PRINCE act could very well suffer the same fate the one Washington state assembled on behalf of Jimi Hendrix’ estate, which was ultimately upheld in the 9^th Circuit, but only after a 13-year, hard fought legal battle. Although these issues are changing and growing daily, we are thrilled to have you follow along with Law on the Row as we begin to wade through the river of issues created by at the end of the Purple Reign, and explore the ever changing laws surrounding the fate of all things Prince.

Morgan Wisted is an intern at Shrum & Associates and has her own blog at www.silkenraven.com.

Purple Reign: Lessons We Learned From Prince – Part 2

In our first episode of Purple Reign, we saw that even though Prince was known as a “control freak” when it came to many things, he may have let a few things slip, such as the non-existence of a valid will.

Notwithstanding that incredibly inconvenient post-mortem faux paux, Prince was in fact obsessively compulsive when it came to controlling his intellectual property. He wanted to be in control. First, there was the “artist formally known as Prince” symbol he adopted in the late 1990’s in order to get order to leverage a split with then-record label Warner Bros. He was also a DMCA mad man known for sending frequent “take down notices” for everything from YouTube videos to fan made merchandise featuring his trademarks and rights of publicity.

Surreptitiously as it may be, Prince (or more to the point, his estate) may find that he has even more control over his intellectual property in death than he ever did in life. A new law in Minnesota called the PRINCE act plans to do just that. Less than one month after Prince’s death, Minnesota Rep. Joe Hoppe, introduced the Personal Rights in Names Can Endure (“PRINCE”) Act. The new act recognizes that “an individual has a property right in the use of that individual’s name, voice, signature, photograph, and likeness in any medium and in any manner.”

Unlike copyrights and trademarks, the right of publicity is not created by federal law but by the laws of each individual state, so the degree of protection varies significantly from state to state. Minnesota is currently one of just over 20 states in the U.S. that does not provide any protections for a person’s rights of publicity, either before or after death. The Prince Act would remedy that absence in Minnesota.

Many states, particularly those states where entertainment is a major source of tax revenue such as Tennessee, New York, California and Florida, have laws protecting a person’s rights in their name, likeness and sometimes other features of their persona, such as voice and signature. Length of protection is one of the variants. Indiana, for example, has a law that protects for 100 years after the person’s death and “reaches back” 50 years prior. There have been some challenges to the constitutionality of some of these laws, so many believe that a Federal law is needed to address the widely varying laws.

Minnesota’s PRINCE act would allow Prince’s estate to control the aforementioned post-mortem rights of publicity, or all things Prince, for the next 50 years. It’s important to note that although Prince’s death was the impetus for the law, according to its sponsor, it actually protects the rights of all citizens to their rights of publicity, not just Prince. This is one very important point that the faulty logic of critics of the act, such as The Volokh Conspiracy and ostensible IP expert David Post, do not factor into their criticism: the act is fundamentally fair because it protects ALL citizens of Minnesota, not just Prince’s estate. It is similar in structure to most rights of publicity laws, in that the Minnesota law essentially states that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a]n individual has a property right in the use of that individual’s name, voice, signature, photograph, etc.” (emphasis added). Post complains that the law is “[j]ust what we need – more property rights that will clog up commerce, stifle free expression, [and] make lawyers happy forever.” Perhaps Post needs to be reminded that property rights, particularly copyright, is, as the Supreme Court described it, “the engine of free expression” and a driving force in the creation of commerce. See this LOR treatise for more. The Prince law, and rights of publicity laws like it in other states, will protect commercial exploitation of such rights and make sure that the estate the only entity that can benefit from that exploitation. There is nothing about the Prince Act that will “stifle” either free expression or commerce, in fact, the opposite is true.

But I digress. The Prince Act could pass as early as August if anti-IP zealots such as the aforementioned don’t have their way.

Of course, when considering any form of intellectual property as an engine of free expression, there are several limitations and exceptions that must be consider in relation to the right of publicity, most importantly those involving First Amendment and/or “Fair Use” protection in certain circumstances. The interest of the public in free speech must be weighed against society’s need to encourage the creation of useful arts. It also allows for fair use limited to news, public affairs, and sports broadcasts. To this end, the PRINCE Act has exceptions, just like other counterparts, for the use of rights of publicity for fair use limited to news, public affairs, and sports broadcasts. One example of a “newsworthy” use of an image would be using Prince’s image in connection with stories related to his death, such as this one. Use of a photograph of Prince in connection to a news article about his death would be a permissible fair use, the same image imprinted on a T-shirt to be sold for profit would be commercial and would require a license from the estate.

LOR will be watching closely to see how the bill continues to develop and will keep you posted with any updates. Please feel free to contact us if you have questions about these issues.

Read Part 1 of the Prince Reign series here.

Thanks to Morgan Wisted for her writing and assistance with this Prince series. Morgan is a summer intern at Shrum & Associates and has her own blog at www.silkenraven.com.

Monkey See, Monkey Do?

by Erin Thiele and Morgan Wisted

NASHVILLE, TENNESSEE. Casey Dienel is suing Justin Bieber and his producer, Sonny Moore, p/k/a Skrillex, (among other defendants) for copyright infringement involving her song, Ring the Bell, from which she claims the Bieb stole musical riffs for his hit Sorry. She claims that the vocal riff she created in 2014 is unique and is the musical hook of her original composition. Here a link to the complaint, filed in the Middle District Federal court in Nashville, and styled Casey Dienel v. Warner-Tamerlane Publishing et al. So, I guess the question of the day is, “Should Justin Bieber be ‘sorry’ for Sorry?

Let’s take a breathe and consider whether, in fact, there is something to apologize for! Dienel’s stage name is White Hinderland. In her complaint, Dienel claims that Bieber and his producer, Skrillex, stole part of her song Ring the Bell that was released in 2014. So the real question might be, “What legal elements of copyright infringement will be relevant to determine this issue?”

Basically, infringement of song occurs when someone other than the author takes any part of that song without permission, provided that what is allegedly taken is entitled to copyright protection. The elements of copyright infringement, simply stated, are

Ownership of a valid copyright;
Access; and
Misappropriation.

That may sound easy enough, but proving each of those elements in a court of law can get a little tricky.

OWNERSHIP

Ownership of a copyright is easy enough to prove. Do you have a copyright registration certificate? If so, the court will give you a “presumption,” i.e., it will assume you own the copyright and you don’t have to prove anything else. That shifts the burden of proof to the defendant, who then is required to present evidence that you do not own the copyright. Since the devil is in the details of the remaining two elements, often the ownership element of the case is “stipulated,” or agreed upon by the parties before they ever get to court.

ACCESS

As for the second element, “access,” the “trier of fact” (either the judge or the jury – we’ll continue to call this the “court”) will attempt to determine whether the person allegedly infringing the song had access to the original song, the rationale being that if the person allegedly stealing material does not know the song exists, there is no way it can be stolen. So this element is pretty critical: if the alleged infringer has never heard the song, it’s likely the song had no influence on his creation. That’s a principal called simultaneous or independent creation. That principal is used to prove not only access, but substantial similarity as well. How does all of this add up for the Bieb? As with all cases, the opposing parties are making different claims:

Specifically, Dienel alleges that Bieber infringed a four-note riff at the beginning of her song Ring the Bell, using the same melodic riff in Sorry. In fact, she believes that the two riffs are so similar that the only possible conclusion that can be reached is that the Bieb and company copied the riff verbatim and used it throughout the entirety of the song Sorry. Listen for yourself:

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Few responses have been generated by Bieber, Skrillex and the opposing party. The only ripple from that camp regarding the issue occurred, of course, in social media, in a tweet by Skrillex, who said point blank:

SORRY, but we didn’t steal this.

To that tweet, Skrillex attached a quickly constructed and attached the following video of how he produced that riff in Bieber’s song:

Skrillex Video on Twitter Feed

Keep in mind, of course, that this video produced by Skrillex may or may not have any legal effect, since it was produced by one of the parties after the fact. Remember that important 2nd element of access? Bieber and Skrillex claim that they never heard of the artist “White Hinderland” prior to her making these allegations, and, of course, claim that they never heard the song that they have allegedly infringed. In other words, they are claiming that they did not have access to “Ring the Bell.” If that claim is true, then Bieber should be sorry for nothing. On the other hand, if Ring the Bell indeed was the influence for Sorry, then it might be “too late to say I’m sorry” (pun, but no infringement intended) – only a number in the checkbook will do.

But there are always two sides to any legal argument, and we shouldn’t just take Bieber at his word simply because he’s the Bieb. In her complaint, Dienel alleges that she wrote the original song in 2014, and that Ring the Bell was the first song released off of her third album Baby, which achieved success on her label, Dead Oceans, a subsidiary of the group Secretly Canadian. The song has, in fact, been streamed almost a million times. In addition, the song received critical acclaim in many industry media outlets, including one mention in Rolling Stones magazine, which, in the February 13, 2014 edition, listed it as one of their “favorite” songs. It just so happens that this edition of Rolling Stones also contained a feature article about none other than Skrillex. Those facts can be easily verified. So, this little bit of chronology puts a bit of a damper on the defendants’ “never heard of her” arguments in regard to access in that a court could very easily determine that claim to be disingenuous and self-serving.

For her part, Dienel’s social media campaign is in full swing as well and is standing on her arguments that Bieber and Skrillex had plenty of access to her work. In her social media buzz, she states her desire that Bieber, as a fellow creator, should have just obtained a license to sample her riff. Dienel has been quoted numerous times stating, “Like most artists that sample music, Bieber could have easily licensed my song for use in Sorry, but he chose not to contact me.”

So, the element of “access” will turn out to be a dog fight, as it usually does, with both parties presenting their respective opinions.

MISAPPROPRIATION

The third element the court will examine is whether the parts of the song allegedly stolen are entitled to copyright protection at all, in this case the four-note riff. That’s called misappropriation. The rationale is simple: in order for someone to collect money damages for infringement of a creative work, the work has to be entitled to exclusive protection.

More specifically, in order for the riff to be entitled to copyright protection, it must possess a “modicum” of creativity, according to the Supreme Court. This is not a high standard to meet. Is four notes sufficient to meet the Supreme’s criteria for creativity? At least one court, the 6^th Circuit has found that, in cases of a sound recording copyright, even three notes can be sufficient. See, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). That’s not the always the last word of course, but if a court determines the requisite amount of creativity is present in the four notes, then the riff most certainly could be misappropriated. One interesting factoid here is the this case is being tried in the Middle District Court of Tennessee, which is governed on appeal by the 6th Circuit, meaning that it must follow the opinions of that higher court. Incidentally, Dienel is claiming infringement of both her sound recording and her musical composition, so this decision will be extremely relevant to the outcome.

Another factor considered when looking at misappropriation is how similar the two competing works are. The courts sometimes refer to this as substantial similarity. Once access is established, substantial similarity is a threshold beyond where that copying wrongfully appropriates the plaintiff’s protected expression. Courts look at this subelement both qualitatively and quantitatively to determine if the copyright is “striking” or “substantial” – something beyond a so-called “de minimis” use – but it is important to realize that such similarity can exist where the portion of the original work copied is small, but nonetheless constitutes the “heart” of the work, as Dienel is claiming here.

CONCLUSION

So there are some important take aways for artists, songwriters, and the minions that love them: (1) NO ACCESS – NO INFRINGEMENT. What someone doesn’t know won’t hurt him, literally, because there is no access; (2) DON’T RIP SAMPLES. If Bieber’s claim is true – that did not steal the riff but rather created it on his own – then it may be time for Dienel to say Sorry. But if Dienel can prove out the claims in her complaint, she will have a pretty good defense against the Bieb’s denial; (3) IF YOU HEAR SOMETHING AND SAY “LOVE IT, GOT TO USE IT,” GET A LICENSE. Always, when in doubt, get a license if you are sampling a sound recording, particularly if you live in the jurisdictions of the 6th Circuit. If Bieber and Skrillex did sample the riff, but had obtained a license, then there would be no lawsuit. It’s that simple. Licenses are always cheaper than defending a copyright infringement action in Federal court!

Is this a case of monkey (Bieb) see, monkey (Bieb) does? (Yes, I had to do it!). Or is this more a case where the monkey (Bieb) “hears no evil, does no evil”? This lawsuit is why I love copyright law so much: it has many angles and there are several ways to look at it. Lawsuits always have a least two sides! While it may be easy to jump on the bandwagon of the underdog, it has yet to be determined whether Bieber owes Dienel an apology (and tack on a few million), or does she owe him one? What do you think? Email us at [email protected] or Tweet me @bshrum.

Erin Theile

Written by guest bloggers, Erin Thiele and Morgan Wisted, edited by BNSesq. Erin and Morgan are students a Belmont Unversity’s Mike Curb School of Entertainment and Music Business program and intern at Shrum & Associates.

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The Creative Spark

You cannot discover new oceans unless you have the courage to lose sight of the shore.

As it does every year, this new year marks a new beginning. I plan to continue my Twitter series entitled #creativity, so if you don’t already, follow me there @bshrum, or on any of the social networking platforms. However, I wanted to announce the series here and say a few words on the topic.

There is a trend in modern thinking to discount the significance, and even the possibility, of original thought. The movement is similar to the quo
te from Proverbs that there is “nothing new under the sun.” In other words, people are basically saying that an original idea is not possible, since every idea has already been expressed. This idea stems from the corresponding line of thinking that all ideas should be free. If this is true, there is not room for creativity, thought, inspiration, invention and innovation. All such “new” ideas would, in fact, be in the zeitgeist already.

Obviously, I do not agree with this line of thought. I come from a family of creative thinkers and I know from experience that new thought can, and is, generated every day. Our own experience in society falsifies the notion that there is nothing new under the sun, as we see in American history a lineage of great, original thinkers and invention. The light bulb, the automobile, electricity, the assembly line, the telephone etc. etc. All of these innovations are based on sparks of creativity. As American author Jonah Lehrer says,

“Creativity is a spark. It can be excruciating when we’re rubbing two rocks together and getting nothing. And it can be intensely satisfying when the flame catches and a new idea sweeps around the world.”

This is a wonderful insight. It is most certainly difficult in most instances to spontaneously generate truly unique thoughts. There is a propensity in the Nashville songwriting community to attempt to “force” this spark by scheduling co-writing sessions with other like-minded songwriters. This sometime results in frequent complaints about the songs being produced and performed in Nashville, i.e., that they are “all alike.” What people are really saying is that many of the songs are not creative. So, while these co-writing sessions may occasionally produce some innovative ideas, it seems that more frequently the practice is a lot like “rubbing two rocks together” in an effort to create the spark, but actually producing a lot of similar songs.

So, the question is can a person actually do anything to foster the generation of new and creative ideas, or are well all destined to the world where there is “nothing new under the sun”? Research shows that there are certain practices which help the spontaneous generation of fresh and new ideas. I’ll share three of them:

The Inner Child

When we think of creativity, we can’t help but reminisce about the days when we were children. A child has not inhibitions or preconceived notions. To a young child, every experience is new and original. The child cannot help but want to paint, sculpt, draw, write, read and see the world in a new light.

It is that “inner child” that can help the creator generate new ideas. Think about this: why is that many great artists, no matter what the craft, often turn to substance use and abuse in times when they want to create? The reason is, of course, that using a mind altering vehicle often lowers inhibitions and “lowers our guard.” No, I’m not saying go out and tie on one in order to create your next great novel. What I am saying is that if you want to create new ideas, you have to see things from the perspective of a child. Stand on your head. Do somersaults. Perform some of your favorite childhood activities. Get in touch with you inner child and your creative juices will be stimulated.

Brainstorm

Another way to get in touch in with your inner child is to just begin writing down any idea that pops in your head, without leaving any room for judging or evaluating the validity of those ideas. This process often puts you in touch with your subconscious thoughts that are frequently suppressed by our conscious mind, where all of our rules and safeguards exist. Original thinkers often talk about thinking all the times. They have very fluent and free flowing thoughts, producing a stream of ideas that are different and sometimes unusual to the less creative observer. But this is how they derive the practical and innovative ideas. Often times, the creative thinker will spend a lot of time “incubating” ideas. As the old expression goes, they “put in their pipe and smoke it.” They percolate the idea in their head until suddenly there is a moment of “eureka” and the idea comes out fully developed. This is the moment that some people feel they are being touched by inspiration, or being guided by their “muse.” The jury may still be out on that, but in reality the key for the creator is knowing how to find these moments of illumination and capture them, regardless of from where you believe they come.

The expression “a writer writes” reflects this concept. If you look at the journals of any great thinker – Thomas Jefferson, Leonardo da Vinci, etc. – you will find scores of ideas that they did not develop. These great thinkers of the world captured their thoughts frequently. In our age of modernity, we have technologies that can assist in that tasks, but we must not lose sight of the important of writing things down as they occur. Keep a journal.

Craft

To the last point, some people believe that creativity is not a trait we inherit, but rather is a skill that is developed. That may just be something the non-creative people say, but the fact of the matter is that you CAN learn skills associated with the arts. A person can be taught to sculpt, paint, write songs or novel, etc. If Einstein had not known the “skills” of math, he would not have been able to capture his unique equation, E=mc2. His flash of insight may very well have faded into the moment, thereby changing the course of human history as we know it. My point is this: new, original and creative ideas must be captured and crafted in order to be innovative.

Once you have mastered the art of getting in touch with your inner child, brainstormed a flurry of ideas, and had your “eureka” moment of insight, you must have developed the skills necessary to capture it and put it down on paper. The art of “clothing,” or expressing the idea is a craft that must be honed and developed in order to achieve success, no matter what your area of creativity.

So, hopefully these musings of a lawyer on the subject of creativity inspire you to go out and create. Help me in my quest to stamp out this new trend in thinking that there are no new ideas. Go create some!

Lockean Theory of property and its impact on the Declaration of Independence, U.S. Constitution and modern day Copyright Law

[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his….”[1] John Locke – a political and social philosopher of 17th Century Enlightenment England and the father of “Classical Liberalism” – was the most influential advocate of natural rights and social contract theory. He believed that in order to establish a civil society, men must give up some of their natural power to the society in exchange for the guarantee of their God-given natural rights. A civil and just government must become a type of “social watchdog” that is charged
with the protection of the individual’s inalienable rights, including, life, liberty and property. These concepts, inspiring in thought and revolutionary in action, were the single most important influence that shaped the founding of the United States. Influenced by Lockean thought, intellectual property – the products of the mind – possessed a value that arose during the framing of both the Declaration of Independence and the U.S. Constitution and would later influence modern day copyright law.

Locke directly influenced the author of the Declaration of Independence and the framers of the Constitution with his central political principle that rights in property are the basis of human freedom and government exists to protect them and preserve public order. Locke’s theory stemmed from the commonly accepted concept of “Natural Law” under which it was believed that every person has natural rights, not given by a ruler but rather derived from a higher power which, in the case of Locke, was the God of the Bible. These rights, according to Locke, were “inalienable,” i.e., they cannot be taken away.

In Locke’s understanding of Natural Rights, the right of property is paramount. For him, “property” encompassed not only physical possessions, but intellectual capital as well. Locke proposed that within any organized community, there is a type of “Social Contract” between all members of the community in order to gain collective advantages that the members of the body politic would not be able to secure individually. This contract forms the basis of the equitable distribution of rights and obligations between the people and their government. The political power of the government is granted to it by the people and is, therefore, a “trust” for the benefit of the people. In turn, the people give this power so that their own welfare is increased and their individual property is protected in a way not possible in what Locke calls the “State of Nature,” where the will of the stronger (or the many) is often forced upon the will of the weaker (or the few).[2]

Locke’s ideals of the “Contract of Society” and “Contract of Government” formed the basis of Thomas Jefferson’s passionate believes conveyed clearly in the Declaration of Independence:

“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –“[3]

Having been bound by the monarchy, Jefferson understood the importance of this radical, yet equitable and sensible, way of thinking. Locke’s ideas were widely circulated and debated throughout the Colonies by this point, and Jefferson would later confess that while writing the Declaration, he “…did not consider it a part of my charge to invent new ideas, but to place before mankind the common sense of the subject.”[4] Jefferson admits to referencing Locke and simply being the tool to communicate and apply the sensibility to the newly independent colonies.

Locke’s influence on American principals can also be seen in his work, A Letter Concerning Toleration. In it, he develops a means of understanding moral truths with strong political implications. Although
his letter focuses primarily on the separation of church and state (something that also had a great impact on Jefferson), it has wider implications in that it provides the philosophical foundation for free speech and freedom of action that follows from free and independent thought. This, in turns, provides a basis for a future understanding of the protection of independent thought as intellectual property. The only precondition of thought, truth, creativity or innovation is political freedom. While in Locke’s letter this freedom of thought refers to specifically to religious ideas, it clearly develops the principal that government is not in the business of enforcing morality but rather protecting an individual’s personal rights from being violated by the collective society.

In a society governed by Locke’s social contract, then, laws established by the government are intended to provide safety and security of the commonwealth as well as every individual’s goods and person.[5] Later, the newly formed United States would incorporate Locke’s freedoms of expression in the First Amendment of the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging, the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”[6] Although the First Amendment, just like Locke’s letter, does not reference ownership of property, it will be referenced time and time again in court rulings securing our freedoms of expressions, and will play a crucial role in the development of copyright law in America.

A year after writing the letter referenced above, Locke published the Second Treatise On Civil Government. In it, Locke wrote that the basis of the equality, independence and ultimately the freedom that exists between all individual men, is their mutual possession of reason. He asserted that through Natural Law, God has given the world to every man in common and he has given them reason to make use of it to the best advantage of life and convenience.[7] This is reflected clearly as Jefferson pens the word of the Declaration: “… the powers of the earth the separate and equal station to which the Laws of Nature of Nature’s God entitle them….”[8]

Locke continued to expand on the idea that man has a natural right to take advantage of the Laws of Nature by explaining that the labor of the body or the mind, and the resulting work of the hands, are the property of the individual and anything that nature has provided and man has joined to it makes it his property. Once man has removed it from the common state of nature, mixed it with his physical or intellectual labor, he is therefore annexing it and excluding it from the common right of other men.[9]

Locke further developed these ideas by providing insight into unilateral appropriation, the idea that there is something individuals can do on their own to establish rights over natural resources that others have a moral duty to respect.[10] In American jurisprudence, the idea of unilateral appropriation is used to justify private property rights and morally binding restrictions and limitations that are perhaps with greater authority than any other social agreement, to wit, there is a universal justification for people owning what is theirs. The implication of Locke’s universal appropriation theory is that a person owns his or her labor and any un-owned thing he mixes it with. This labor can improve resources, adding value through the pains of individual labor. Through this labor and improvement of natural resources more natural resources are available for others. Hence appropriators are entitled to some type of unconditional right to produce their own subsistence.[11] In the U.S., Locke’s concepts are incorporated in §102(b) of the Copyright in the form of our “idea/expression” dichotomy, in that a person is free to incorporate common and universal ideas into their own individual expressions.

A little over 100 years later, both Thomas Jefferson and James Madison would embrace the ideology presented by Locke in the Second Treatise, although Jefferson at first struggled with the idea that the protection of intellectual property might somehow become a monopoly and thereby denying others access to a natural flow of information and innovation. This is reflected in a letter to Isaac McPherson on August 13, 1813, often cited by opponents to the concept of intellectual property, in which Jefferson ultimately argues the notion that inventors and their heirs have a natural and exclusive right to their inventions. In the letter, Jefferson insists an idea in nature is excluded from exclusive property stating, “the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.” Jefferson continued that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition.” He compares an idea to the air we breathe, “incapable of confinement or exclusive appropriation.”

There are two things to note about the famous quotation of Jefferson. First, he clearly notes that it is ideas that exist in nature that cannot be possessed, but implicitly does not stray from the Lockean idea that once a person mixes labor with it it, it can be possessed. He ultimately agrees with Locke that the one who initially possess as well as expresses the idea should have, “exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility.”[12] Because of the Colonies’ past experience with England, Jefferson’s principal intellectual conflict over the concept of ideas as property was the threat of monopolizing anything, including intellectual ideas.

Unlike Jefferson, however, Madison, the primary architect of our Constitution, fully embraced the idea of the protection of intellectual property and recognized that the nature of an individual piece of intellectual property is such that it could be useful to all people and yet could be owned by one person. When writing the Fifth Amendment, “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” Madison was directly referencing Locke’s idea of appropriation and preservation of their estate[13]

On the other hand, Madison did agree with Jefferson that ownership of property in general could amount to indefinite monopolization of that property by the owner. But Madison nonetheless recognized and later persuaded Jefferson, that intellectual property was a thing of value to all of society and was susceptible of being appropriated in the public interest without just compensation to the individual who was the inventor or author. In Madison’s words “….the (creative) few will be unnecessarily sacrificed to the (greedy)many”[14] (notations added). In these words, Madison ingeniously combined Locke’s idea that a person is entitled to the fruits of their labor as applied to the state of nature with the much more politically accepted notion of utilitarianism that laws should benefit the majority.

So even though Madison sought to protect and provide compensation for intellectual property, he agreed with Locke’s thought that there was a limitation to this protection. Locke describes this limitation as follows: “as much as any one can make use of to any advantage of life before it spoils, so much he may by his labor fix a property in. Whatever is beyond this is more than his share and belongs to others.”[15] Although Locke’s comment here refers specifically to tangible natural resources as mixed with the labors of man, the premise is nonetheless later used by Madison when writing, Article I, Section 8, Clause 8, of the Constitution, which provides that “…Congress shall have Power … To promote the Progress of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[16] This Constitutional provision, birthed in the ideas of Locke in 1690, encapsulated by Jefferson in the Declaration of Independence in 1776, and later drafted into the United States Constitution by Madison in 1788, continues to form the basis for the protection of intellectual property in the United States today.

This is the historical and philosophical evolution of Article I, Section 8, Clause 8, the so-called Progress Clause, which is and always has been the basis for U.S. copyright law. The Progress Clause is the only clause in the Constitution that grants power to Congress and specifies the means to accomplish its stated purpose. The exact limitations of this clause have been the subject of countless U.S. Supreme Court cases. One case in particular, Petrella v. MGM, is a United States Supreme Court copyright decision that references Locke and Madison’s ideas on the limitation of intellectual property ownership. In Petrella, retired boxer Jake LaMotta and his friend Frank Petrella (Plaintiff) wrote a story about his career which resulted in three copyrighted works: a screenplay, written in 1963, the book Raging Bull: My Story, published in 1970 and yet another screenplay, written in 1973.

In 1976, LaMotta and Petrella assigned the copyrights in their works, including renewal rights, to Chartoff-Winkler Productions, Inc., which assigned them in 1978 to United Artists Corporation, which later became a subsidiary of Metro-Goldwyn-Mayer. In 1980, as a result, MGM released (and registered copyright in) the film Raging Bull, which achieved popular and critical success. Petrella died in 1981, during the initial terms in the three original works (these works will still under the auspice of the 1909 Copyright Act). After his death, the renewal rights in the works reverted to his heirs.

In 1991, Petrella’s daughter sought to renew the copyrights, but was unable to timely file except with respect to the 1963 screenplay. Approximately seven years later, she advised MGM that its exploitation of Raging Bull violated her copyright and threatened suit. Another 9 years after that notification, on January 6, 2009, Petrella finally filed her infringement suit against MGM, seeking monetary and injunctive relief limited to acts of infringement occurring on or after January 6, 2006.

MGM understandably moved for summary judgment, arguing that, under the equitable doctrine of laches, an unreasonable delay by the plaintiff in bringing the claim, Petrella’s 18-year delay in filing suit was unreasonable and prejudicial to MGM. The District Court granted MGM’s motion, holding that laches did in in fact bar Petrlla’s complaint.[17]

In this example, we see the interplay of the Locke/Madison ideology concerning the limitation of intellectual property rights and the checks and balances of our judicial system, and the effect of laches on those rights. Although Petrella fell within her legal right under legislation regarding the transfer of the copyrights, she was stymied by her unreasonable delay in bringing the claim that resulted in her loss. This is an example of how our legal system and doctrines serve to protect the ideas of Locke and our Founding Fathers that there be limits on intellectual property, preventing it from being held hostage for an indefinite period of time.

John Locke is America’s intellectual founding father, imparting knowledge and enlightened thinking to our Founding Fathers and leaving his philosophical fingerprints all over our founding documents. The human right to property, including intellectual property, was understood by the Framers of the Constitution and evidenced in the Declaration. In order to advance society, the progress of science, creativity and innovation, i.e., intellectual property, must be encouraged with the protection under the law. Although Jefferson argued that thought is free flowing and feared “ideas” might become a monopoly, he had a greater passion for advancing the illumination of minds and the disseminating knowledge through a growing nation. Madison clearly understood that the continuum of existing knowledge to invent and innovate must be protected within the confines of the law so that the newly-created Republican majority didn’t take advantage of the individual’s rights. What began as radical enlightened thinking in the mind of Locke over three hundred years ago, implemented 100 years later by our Founding Fathers when securing the unalienable rights of the people, continues to encourage innovation under the protection of the law over 200 years later.

The author, Madison Brinnon, is an Entertainment Industry Studies major at Belmont University, minoring in Mass Communication. She will be in Brazil and Argentina during Spring 2015 studying culture and music of Brazil while doing coursework in Music and International Business. Through the summer she travels with the Turtles on their Happy Together Tour as an intern, and returns to college in the Fall at Belmont’s Los Angeles Campus. Ms. Brinnon has also traveled to several countries in Europe and to a small medical clinic in Zimbabwe where she presented medical supplies that she collected through a small philanthropic organization in California that she helped found. Madison indicates that her inspiration for this article, originally turned in as a research paper for Mr. Shrum’s Copyright Law class, was fueled a love for history, especially American History, and states, ”So many times we take our rights for granted and never consider the impact our founding fathers have on our lives today. It is important to understand the foundation upon which modern day law, and in this case, copyright law is based.”

[1]John Locke. Two Treatises on Government. London, 1821. PDF e-book. 209.

[2] George Stephens. John Locke: His American and Carolinian Legacy.” In John Locke Foundation. Raleigh: John Locke Foundation.

[3] “The Declaration of Independence: A Transcription.” National Archives and

Records Administration. Accessed April 14, 2015.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

[4] Richard J. Behn “Declaration of Independence Preparations Drafting Declaration Independence.” Accessed April 13, 2015. http://lehrmaninstitute.org/history/declaration-of-independence.html.

[5] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.” 1996. Accessed March 28, 2015. http://www.chuckbraman.com/political-philosophy-of-john-locke.html.

[6] “First Amendment – U.S. Constitution” Findlaw. Accessed April 14, 2015. http://constitution.findlaw.com/amendment1.html.

[7] George Stephens. John Locke: His American and Carolinian Legacy.”

[8] “The Declaration of Independence: A Transcription.” National Archives and

Records Administration. Accessed April 14, 2015.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

[9] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[10] Karl Widerquist. “Lockean Theories of Property: Justifications for Unilateral

Appropriation.” Public Reason 2, no. 1 (June 2010): Accessed March 28, 2015.http://www.publicreason.ro/articol/21.

[11] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[12] Thomas Jefferson, “Article 1, Section 8, Clause 8: Thomas Jefferson to Isaac McPherson.” Accessed March 28, 2015.

http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

[13] “Fifth Amendment – U.S. Constitution” Findlaw. Accessed April 14, 2015.

http://www.law.cornell.edu/wex/fifth_amendment.

[14] Howard W. Bremer., JD. “Chapter NO. 3.9 U.S. Laws Affecting the Transfer of Intellectual Property Editor’s Summary, Implications and Best Practices.” Accessed April 09, 2015. http://www.iphandbook.org/handbook/ch03/p09/eo/.

[15] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[16] “Article 1, Section 8, Clause 5.” Article 1. Accessed April 14, 2015. https://www.law.cornell.edu/constitution/article1.

[17] Petrella. v. Metro-Goldwyn-Mayer, Inc., (U.S. 9^th Circuit Court of Appeals).[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The Evolution of the Disney Princess Brand: Becoming the Best Selling Entertainment Licensor

By Samantha Jervey*

When Walt Disney decided to personally license the image of Mickey Mouse in 1929, he had no idea that he would start a licensing revolution.[1]

This deliberate act made by Walt is what ultimately laid the foundation for his company, thus bringing to life what is now known today as Disney Consumer Products. Disney Consumer Products is one of many business divisions that belong to The Walt Disney Company.[2] In essence, they are in the business of “deliver[ing] innovative and engaging product experiences across thousands of categories from toys and apparel to books and fine art.”[3] That being so, character licensing plays a huge role in Disney’s business dealings, which thanks to Kay Kamen, is an area that the company is well versed in. Kay Kamen joined the Disney team in 1932 when he was appointed to take charge of Disney Licensing.[4] It was then that he set the standard for character licensing within the entertainment industry thereby making it possible for Disney to grow into the world’s largest licensor today.[5] Out of their vast set of properties, Disney owes much of their licensing success to the Disney Princess brand. The brand is a promising niche to marketers, in addition to having mass appeal to consumers, making it an attractive product to licensees all around. Furthermore, analytical licensing charts and merchandise sales trends suggest that the Disney Princess brand will forever be timeless in the eyes of little girls and women alike.

As a large company with such a wide range of licensable properties, Disney is responsible for keeping track of their character database in an orderly and functional fashion. They have done so by dividing their licensing unit into fivestrategic brand priorities, one of which is Disney Princess and Disney Fairies. The Disney Princess brand first appeared as a cohesive collection under Andy Mooney when he was appointed as chairman of DCP in 2000.[6] In its entirety, the Disney Princess royal court accounts for 11 princess characters that embody a rich legacy and a unique set of inner qualities and values.[7] The elite group includes Ariel, Aurora, Belle, Cinderella, Jasmine, Merida, Mulan, Pocahontas, Rapunzel, Snow White and Tiana, each of whom serves as a role model to young women across the globe.[8] Families today love the traits that these women inspire among their daughters, “such as being spirited, graceful, smart, kind, compassionate, courageous, heroic, adventurous, passionate, confident, and brave.”[9] That being said, the brand is clearly marketed towards a target age group, although it has grown into something bigger than itself. Mary Beech, vice president and general manager of Global Studio Franchise Development, states how Disney is “hitting a key developmental pattern for little girls, ages 2 to 5.”[10] They are doing so through intricate storytelling and top-level character appeal, which in return, is stealing the hearts of little girls.[11] Furthermore, Disney’s understanding of who they are as a brand, along with marketing strategy, has helped to lay a foundation for their licensing success.

Seeing how the brand did not premiere as a cohesive collection until 2000, it did not take long for Disney Princess to conquer the licensing industry. Disney consistently ranks as Number 1 on most lists of global licensing, consistently generating worldwide revenues in the high 26-29 billion dollar range. As a reaffirmation of how well the company had been doing, in 2012, The Licensing Letter released their second annual list of “best-selling licensed entertainment merchandise” based on 2011 retail sales in North America.[12] The list accounted for many classic brands, including Star Wars and Sesame Street, with Disney Princess charting strong at number one.[13] In North American retail sales, the Princess brand made $1.6 billion, while reaching an impressive $3 billion in global sales.[14] These numbers were based on the sales of physical consumer goods alone and included “t-shirts, stationary, toys and electronics.”[15] Furthermore, it is important to note that this list did not take into account merchandise manufactured by the property owner, but solely licensed products “that outside manufacturers pay an average royalty of 8.7% of the wholesale cost to produce.”[16] Finally, the numbers also exclude licensing revenue from other powerful Disney brands such as Pooh ($1.09 Billion), Cars ($1.05 Billion), Toy Story ($685 Million), Disney Fairies ($435 Million), nor Disney’s subsidiary, Marvel Comics, which is reported separately and generally garners around 5 billion in worldwide sales, all of which also consistently rank in the top ten.

Disney’s success in licensing relies heavily on the demand of consumers, which is so great that manufacturers have no choice but to license their products in order to create supply. Ira Mayer, publisher and executive editor of the Licensing Letter, believes the reason that the Disney Princess is in such demand is that “there are surprisingly few girl properties like it [sic].”[17] In fact, product licensing is a fraction of Disney’s overall revenue, but that profit is due to its strong brand loyalty.[18] Because Disney’s properties, specifically those licensed by Disney Princess, are in such high demand, the company can afford to license its characters at “an above-average royalty of 15% or higher.”[19] This gives Disney Princess a rare advantage in the entertainment industry due to unrivaled product demand.

In addition to having high consumer value, the Disney Princess brand is more successful than most due to its adaptability in the market place. In truth, Disney Princess could probably license their properties in any market and still be successful, although the biggest licensing opportunities currently lie in the field of merchandise. Out of their assortment of licensed products, the brand encompasses, though is not limited to “toys, apparel, accessories, home décor, consumer electronics, school supplies, and personal care.”[20] In addition to those lucrative products, they have found a niche within the wedding industry, such as with licensee Kirstie Kelly, who recently created a bridal collection inspired by the Disney Princess brand.[21] In fact, the company derives most of its product ideas from three core categories: dolls, role play, and books.[22] In Beech’s opinion, these three things are what have inspired growth into new markets, such as “live events and products for adults.”[23] Having this type of awareness and understanding of what consumers want has definitely helped Disney Princess stand out among their peers. They know exactly who their buyers are, along with what they are looking for in a product, and that is “style, sparkle and storytelling.”[24] In short, Disney Princess is not limited by age or expectation in the licensing world.

It is important to note that when you are a company as big as Disney, it is vital that you keep a watchful eye on the use of your properties to ensure their reputation. This is a lesson Disney learned the hard way in 2010 when they went to court to file a copyright and trademark infringement claim. In Disney Enterprises, Inc. v. Away Discount, Disney caught their Defendant in the act of making and selling unlicensed merchandise.[25] Though the relevant facts in the instant case were brief, the Plaintiff, Disney, did indeed “own the exclusive rights to a number of trademarks and copyrights” that the Defendants were found violating.[26] The properties that were infringed included Disney’s Disney Princess, Winnie the Pooh, as well as a number of other big licensing names for Disney.[27] What this illustrates is that Disney keeps a watchful eye on suspicious behavior involving their copyrights and trademarks. As one of the biggest licensors in the world, it is a necessity to do so. While recovering monies lost is always important, it more important to maintain the reputable brand name of your characters, which is something that Disney is avidly passionate about. After all, it would be a shame for an infringer to forfeit the magic and persona of the Disney Princess brand that many girls have grown to love worldwide.

In conclusion, Disney’s Disney Princess brand is well deserving of the title as the entertainment industry’s top merchandise licensor. They have poured much time and energy into establishing themselves as a reputable name and it is crazy to think that it all started with Walt licensing the image of Mickey Mouse himself. Since Andy Mooney’s decision to group the ladies under a brand umbrella, Disney Princess has reached success far beyond anyone’s imagination. There are no limits when it comes to licensing opportunities with these girls, which is what makes them such a rare and hot commodity. With every t-shirt, bedspread, doll, or wedding dress, Disney Princess leaves a magical imprint on the hearts of their consumers. That being so, come 10 to 20 years from now, the beautiful stories and lessons left behind by these princesses will live on far beyond their inception.

*Samantha Jervey is a student at Belmont University majoring in Entertainment Industry Studies with a minor in dance. This article was written as an assignment in Mr. Shrum’s Entertainment Law & Licensing class. Her passions include music, writing, learning, and helping others. Having attended high school at Governor’s School for the Arts in Norfolk, Virginia, Samantha is dedicated to promoting the value of arts in education. She spends most of her time in the Nashville community looking for new ways to support and grow her knowledge of the entertainment industry.

[1] Disney Consumer Products, “About Us.” Accessed March 14, 2014. https://www.disneyconsumerproducts.com/Home/display.jsp?contentId=dcp_home_ourbusinesses_company_overview_us

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Disney Princess Power. (2009). License! Global, 12(4), 40.

[7] Disney Consumer Products, “About Us.” Accessed March 14, 2014. https://www.disneyconsumerproducts.com/Home/display.jsp?contentId=dcp_home_ourbusinesses_company_overview_us

[8] Ibid.

[9] Ibid.

[10] Disney Princess Power. (2009). License! Global, 12(4), 40.

[11] Ibid.

[12] Jenna Goudreau, Forbes, last modified September 17, 2012, http://www.forbes.com.

[13] Jenna Goudreau, Forbes, last modified September 17, 2012, http://www.forbes.com.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Disney Princess Power. (2009). License! Global, 12(4), 40.

[21] Disney Princess Power. (2009). License! Global, 12(4), 40.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] 2010 U.S. Dist. LEXIS 86119. LexisNexis Academic. Web. Date Accessed: 2014/03/23.

[26] Ibid.

[27] Ibid.