Shooting Your Fans in the Foot

Exhibit 1: The Daily Show and The Colbert Report are all over the internet, and Stephen Colbert talks about his YouTube popularity on the show. It’s the internet buzz that everyone on television wants for their own show.

Well…everyone except the folks who run the Comedy Central channel:

I received a couple of emails from YouTube this afternoon (see below) notifying me that a third party (probably attorneys for Comedy Central) had made a DMCA request to take down Colbert Report and Daily Show clips. If you visit YouTube, all Daily Show, Colbert Report and South Park clips now show “This video has been removed due to terms of use violation.”

This is legally correct—they own the show and have the right to control its use—but what the heck are they thinking?

I can understand the case for South Park. They sell the South Park seasons on DVD. As I write, the 8th season is in the top 200 of all DVDs sold on Amazon. If all the best parts of South Park are available free on YouTube, who will buy the DVDs?

But when it comes to the Daily Show and the Colbert Report, are they insane? What else are they going to do with the old episodes? It’s current events television. Nobody wants to even watch last year’s episodes on TV, let alone buy DVDs full of the stuff. Amazon has only one listing for Daily Show DVDs, and that’s for the Indecision 2004 Special

Exhibit 2: Universal Studios presumably decided to greenlight the movie Serenity largely because the series it’s based on, Firefly, had such a rabid fan base. To take advantage of this, they provided an unusually large amout of artistic and promotional material and encouraged fans to participate in the marketing of the movie by setting up web sites and printing bumper stickers.

It seemed to work fairly well:

While the theatrical release of Serenity met only modest success at the box office, the Browncoats campaign maintained momentum through the DVD release, whose success spurred additional sales of the original Firefly DVD. At one point following the release of Serenity on DVD, both Serenity and Firefly were #1 and #2 on Amazon.com’s bestseller list despite the Firefly DVD being over a year old.

But now, this:

“11th Hour Art’s offering for sale and sale of unauthorized “Serenity” shirts may give rise to multiple violations of law, giving rise to various causes of action for copyright infringement, counterfeiting, and unfair competition, among other claims. Recovery on one or more of these claims may include attorney’s fees, treble damages, statutory damages, and punitive damages.”

——————————————-

The Demand continues, and includes such stipulations that within 72 hours I must agree to: pay a retroactive $8,750 licensing fee; the permanent closing of my shop; turn over any merchandise referring to the Universal Property; and provide the last 12 months complete sales records… there’s more, but that’s the gist… oh, except for the threat of federal court and the statutory damages thingy of $150,000 per infringed work… don’t want to go leaving that part out.

I guess you can stop the signal.

Again, Universal is legally in the right. Or maybe it’s Fox forcing Universal to do it. This was a woman selling Serenity-themed T-shirts without licensing the rights.

But what the heck are they thinking? For $8,750 they’re going to alienate a huge number of fans of the show. Not to mention that next time Universal tries to enlist their fans in promoting a movie, they’ll probably get a cold reception.

Or an invoice.

[Update: I have corrected the gender of the artist behind 11th Hour based on a comment by Tom McAllister. His comment also had the best summary of the situation: "this was a ham-fisted first approach by the legal department of a corporation that the fans had thought of as their partners in fantasy." That's beautifully put.]

23 responses to “Shooting Your Fans in the Foot”

  1. Jim Rockford

    There is no downside for Universal.

    Serenity/Fireflop failed precisely because it’s fans were rabid. There just weren’t that many of them. The movie was/is like Donnie Darko. A nice cult movie at a million dollars, a total failure at $40 million.

    There never was an audience that was worth much of anything, so no this is a smart move by Universal to prevent precedents in other areas (loss of merchandising rights for other actually valuable trademarks).

    No downside to “alienating” people promoting a movie since that model obviously failed to generate enthusiam at the box office or in DVD sales (if Universal actually made money off DVDs there would have been a sequel).

    Fireflop is exhibit A of being caught in the Long Tail phenomena with old-media budgets. If the movie had been made independently I could see the point but Universal probably found the whole exercise a massive waste of management time (which could have been devoted to stuff actually making money) and a dangerous precedent of giving away merchandising rights.

  2. mcg

    But when it comes to the Daily Show and the Colbert Report, are they insane? What else are they going to do with the old episodes?

    Well, how about what CBS is doing—provide their own way to watch the shows for free from their own web site, so they can control the revenue derived from it?

    Honestly though I think the content providers need to play a little hardball with YouTube, just long enough to get a reasonable piece of the money they intend to make.

    (P.S.—any chance you can change your blog code so that a poster has to only enter one CAPTCHA per post, no matter how many times he previews? :))

  3. Andy Freeman

    > No downside to “alienating” people promoting a movie

    There’s a downside when Universal runs another viral marketing campaign.

  4. Mark Draughn

    Jim, That’s an interesting theory.

    It’s not about the $8,750 at all then, is it? It’s about Universal establishing a credible track record of not letting people get away with ripping them off.

    It’s kind of like Tony Soprano whacking someone who owes him a few thousand dollars. The money means nothing, but if people see him letting people slide, then everyone will start doing it.

    Such demonstrations of will often involve costs far in excess of the nominal value to be gained. The real gains come by deterring future ripoffs.

  5. AST

    YouTube should have seen this coming. I wondered how it could get away with posting copyrighted material. The idea was to let internet users post their own videos and there are some pretty good ones. When they got into proprietary content they were no different from the original Napster.

    BTW, your Typekey identifier doesn’t seem to be working.

  6. Mark Draughn

    mcg, as it turns out, you don’t need to enter the CAPTCHA to preview, only to post. I’ve modified the template to make that more clear.

  7. Svolich

    No downside to “alienating” people promoting a movie since that model obviously failed to generate enthusiam at the box office or in DVD sales

    The downside is killing future viral marketing campaigns. Sure, it didn’t work for this one – but that doesn’t mean it doesn’t work. Fox has made $100 million off the Rocky Horror Picture Show (and most of that was pre-inflation money). It wasn’t from a wide release and massive advertising.

    The next time Fox or Universal tries to get a groundswell going, people just might remember this.

  8. Tom McAllister

    Hmmm, you say “Again, Universal is legally in the right. … This was a guy selling Serenity-themed T-shirts without licensing the rights.”

    Actually, even the legal picture is muddier than that. Universal had previously encouraged the fans to post their original art work for sale on a website that Universal ran. The site is closed now but the fans continue to gather and to sell items elsewhere. In the case of this woman (not a guy) who received the first of these threatening letters it was all original artwork, not images from the characters or movie scenes or logos. She’s a longtime fan who has shown great loyalty in the effort to bring out an audience for the franchise and now she and the other “Browncoats” are willing to cooperate by limiting their art to further help feed the success of their beloved show/film but this was a ham-fisted first approach by the legal department of a corporation that the fans had thought of as their partners in fantasy.

    The story is just starting to get out and if they insist on this approach it’ll certainly be a messy PR matter and their legal case may not be a slam dunk either. 11th Hour, (the name used by the fan with the original artwork inspired by the show’s theme) might be wise to ride this spaceship for a bit and see where it goes. It may not last forever but those shirts could become collector’s items soon.

  9. David Booth

    Hopefully somebody is still reading comments way down here:

    I agree with your point that opposition to YouTube on the grounds of copyright infringement makes no sense considering the free advertising YouTube provides.

    However, it does make some sense Comedy Central would take down the videos considering YouTube is in direct competition with Comedy Central’s website. A significant amount of Daily Show/Colbert Report viewers are online. Of course Comedy Central would rather direct that viewing traffic to their own site.

  10. Pozycjonowanie

    No downside to “alienating” people promoting a movie

    There’s a downside when Universal runs another viral marketing campaign.

  11. J. Wilkinson

    > However, it does make some sense Comedy Central
    > would take down the videos considering YouTube is
    > in direct competition with Comedy Central’s
    > website. A significant amount of Daily
    > Show/Colbert Report viewers are online. Of
    > course Comedy Central would rather direct that
    > viewing traffic to their own site.

    See, this doesn’t make a whole lot of sense to me. Why would Comedy Central not use YouTube to spread interest in their TV show? Streaming video is rather bandwidth intensive, and the cost for running a very popular video site is probably pretty astronomical. Why not get the same popularity on the cheap, by having YouTube foot the bill?

  12. Ian S.

    >Why would Comedy Central not use YouTube to spread >interest in their TV show? Streaming video is rather >bandwidth intensive

    Because TV networks don’t think that way. It’s a cliche to say that MBAs don’t understand the Internet, but it’s absolutely true here. They want you on their website and their website only so they can claim the ratings. They don’t realize that it’s not like TV where as long as the transmitter’s hot anything you put out on it is essentially free after that.

  13. mishu

    Comedy Central’s position is like Bill Wirtz and the Chicago Blackhawks. He never allows broadcasts of home games because he’s afraid that fans will stay home and watch the games on TV instead of attending. Now, this year the Hawks are starting with a competitive team and are only drawing 3 or 4 thousand fans.

  14. jay bruce

    In response to JR’s misguided comments about Serenity/Firefly and Universal Studio’s clamp down on the artist known as the 11th hour.
    First off a couple of FACTS to refute some of JR’s remarks

    I. Firefly is currently in the top 5 (all-time) of best selling television dvd box sets. Right up there with other such failures as Lost and 24.
    Source: The New York Times. Firefly is still on Amazon’s top 100 currently at #73 (not bad for a 4 year old tv show with only 14 episodes)

    II. Firefly was cancelled by Fox because they just didn’t get it. Firefly remains the only tv show cancelled after less than 1 year, yet still get a major motion picture release (Serenity).

    III. What was Universal’s first High Definition DVD to hit the marketplace?!?! Class?…anyone?…it was SERENITY! So much for there not being an audience made of anything.

    IV. The t-shirts made by The 11th hour don’t even have the Serenity logo on them. They have a Chinese symbol and you can’t copyright letters or symbols of any alphabet. Just do a search on U.S. copyright law. Even her design was different.

    V. The Serenity DVD was on Amazon’s top 20 list for over 3 months. The DVD was released in Dec. 05.

    In closing I think Universal should work out some sort of deal with 11th hour. They have every right to protect their copyright, but in this case I think they lost their sense of reason.

    Sincerely,

    JBJ

  15. nalts

    Some day we’ll laugh about this in the same way we chuckle at Colbert’s sharp humor. But right now it’s really depressing. How’d you like to work for Comedy Central (Viacom is parent?) or Universal. You’ve unleashed your content in a way that promotes the hell out of your paid media, and a lawyer says you have to stop. I’d quit.

  16. Meble

    [...]No downside to “alienating” people promoting a movie[...]
    There’s a downside when Universal runs another viral marketing campaign.

  17. tanie linie lotnicze

    Thanks, article was very useful.

  18. Cinema

    Great article, can I translate it and put on my site?

  19. Transport miedzynarodowy

    Usługi transportowe

  20. Cukier

    Produkty chemiczne dla cukrownictwa

  21. tłumaczenia

    There have been difficult matters brought into discussion, thank you for this article

  22. zutestrane

    Thank you, was fun to read

  23. Ala

    NASA won’t be …not much of a shock, rlaley. The shock is that they won’t be going with Serenity, which came in second. Instead, they’ve decided on eighth place Tranquility. (Note to NASA: Why ask for public opinion if you’re just going to ignore it?)

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