Technically speaking, a “brand” is the intellectual property of the company or organization that owns it. Legally, a company has the right to enforce restrictions on its brand. It can protect its intellectual property from infringement, it can stop people from using the brand name in vain, it can squash grassroots efforts to make use of the brand in merchandise or apps or (insert use here). The question, though, is whether the legal right translates into the right thing to do.
The answer I keep coming up with when I ask myself how brand watchdogs should handle these issues is that they have to be very careful, or they can wind up looking like they’re punishing a good faith effort. It doesn’t always matter who is legally in the right. The marketplace has changed, and customer/member/fan collaboration in branding identity through mashups (Chevy will never forget the nightmare of that initiative) or parody ads, or unofficial apps are all a part of being a corporate entity in a social world. There were probably half a dozen Netflix apps for the Droid before the official one came out. They were all unofficial, and none of them were very good or even streamed content. The best you could do was add things to your queue. But they filled a void while people waited for the real thing, and they didn’t stop people from jumping on the real thing when it arrived.
Most advertisers dream of the day their work goes viral. But the latest ad campaign to light up the internet wasn’t created by an advertising company … nor was it commissioned by the client it named.
The situation, while far from common, demonstrates how the lines of brand ownership have blurred in recent years.
“Historically Hardcore,” a series of print ads comparing historical figures to modern celebrities, climbed to the top of social bookmarking sites last week. Most people attributed the work to the Smithsonian Museum, since its name and logo appeared on each ad. In reality, the ads were the creation of students Jenny Burrows and Matthew Kappler.
“We got an assignment from a teacher, telling us to do print advertisements for the Smithsonian Museums that appealed to teenagers and college students,” Burrows wrote in an email on March 21. “They’ve been online since 2009, and haven’t gotten any response until this past week.”
No one knows why the ads went viral two years later. But after getting a call from a Washington D.C. news anchor, Burrows decided to tell the Smithsonian that she was the designer. The Museum replied not with enthusiasm, but with a demand to remove its name and logo from all instances of the ads.
In my opinion, the Smithsonian botched that, badly. They chose to issue a cease and desist order instead of co-opting the work. And the work was good. And funny:
I also tend to agree with this assessment of who owns a brand, at least in the “who imbues a brand with value” sense of the word:
We marketers like to think that social media is primarily a set of tools for our marketing purposes, but in reality, social media is also a strong set of tools our consumers use to share and influence opinion about our brand. Our consumers now have “the channel of me.” Consumers’ opinions now create the “reality” of the brand — if enough consumers say negative things about your brand, your brand loses its credibility, and (thankfully) vice versa.
There are two main ways we can react to this change: we can fight it or accept it. I highly recommend accepting it. If we fight to retain control of our brands, we are likely to hold on so tight that we suffocate the flexibility and outward-looking awareness our brand needs for survival.
On the other hand, if we can accept the change and step into our consumers’ “channel of me,” we can gather valuable direction for the success of our brand. They can (and will!) tell us how they expect our products to work, and what they expect from our brand. When we let go of the notion that we own our brand, we have an incredible opportunity to fashion the brand that our consumers want.
If you’re in the position of protecting your brand from customers or fans using it without your permission, tread lightly. You have every right to make sure that it doesn’t infringe on your intellectual property rights in a way that is damaging. From your perspective, they may be trampling all over a name and reputation you’ve worked hard to build, but to most people, they’re just fans trying to create something built on the foundation of your good name. That makes them good guys by default in the eyes of their peers, and if you play “hands off our brand!” then you become the bad guy.
Enforcement actions on those playing fast and loose with your brand may be legally sound, but you will lose big in the realm of public perception. And at the end of the day, isn’t that what your brand is built on in the first place?