Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:

Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):

Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.

BOYCOTT JAMBA JUICE!

JUICE SUCKS, DRINK WINE

Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.“  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

Help WFMU stay on the air

(from Flickr user graciepoo)

The greatest radio station in America, if not the world, is probably WFMU in New Jersey. Their listener-supported, non-commercial, free-form format specializes in exploring music on the fringe and for decades has been a major trendsetter in music (put it this way: it’s Lou Reed’s favorite radio station and Jeff Magnum used to be a DJ there). This station plays some of the most interesting music I’ve ever heard: you can listen online here.

The operating expense of running a midsize radio station outside New York comes to roughly $1.2 million, and FMU makes that money almost entirely during a mammoth two-week pledge drive (think of it as the super-cool cousin of a PBS pledge week, complete with swag-for-donations and impassioned pleas on the air), currently four days from conclusion. The station has made $800,000 as of this moment, but they need a big push to cover a variety of unexpected additional fees that have come up this year. FMU is putting in a booster transmitter in New York that must be completed by August, so their signal can reach Brooklyn (so do it for Alix and Michelle, if not for me), and are working out tenant issues and other affairs (hear station manager Ken’s “State of the Station” address here).

Donations can be made here. And be sure to tune in to WFMU on Friday night from 8-11 to hear the one and only Yo La Tengo do their annual marathon pledge-for-covers event. The premise is simple: you donate and request any song (and they’ll do almost any song) and YLT  will cover it right then and there on the air. It’s a fantastic show.

Sunday Morning Reading: Charles Nesson in Mass High Tech

(from Geek&Poke)

As part of the ever-increasing attention being given to the RIAA filesharing case of Sony BMG Music v. Tenenbaum (see the witness list post from a few days ago), Harvard Law Professor Charles Nesson wrote a great, quick essay in the Mass High Tech journal, explaining his reasoning for having the case dismissed.

Nesson:

Joel Tenenbaum, who was a teenager at the time of the alleged copyright infringements, is being sued for downloading seven songs seven years ago from KaZaA, a file-sharing network composed of millions of his peers doing likewise. The RIAA will seek to prove that Joel downloaded those songs “willfully” and must therefore pay up to $1,050,000. Joel has already been interrogated by the RIAA for nine hours in a forced deposition; been made to endure the depositions of his mother, father, sister and friends; and may be compelled to submit his current computer, which is not even the machine on which the original copyright infringement was alleged to occur, to a RIAA-retained third party for complete imaging and forensic analysis. All this for the alleged download of seven songs.

We believe, and are asserting legally by counterclaim, that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law.

The center of their argument is quite plain and clear: the RIAA is abusing the statutory penalties in copyright law in order to call each and every download a “willful copyright infringement” worthy of the maximum fine: $150,000. That is what brings Nesson to the >$1M figure above.

The problem with this tactic is multifold; for one, this is nowhere near the actual damage suffered by an artist or the record labels. In fact, very few artists could claim a figure near that for the aggregate of losses suffered by the act filesharing. What’s more, as an oft-cited four-year-old NYT article puts it, you cannot draw a 1:1 ratio between downloaded files and lost sales. Not only are people downloading tracks they would never buy, thanks to the lowered burdens of downloading, many have suggested they will use peer-to-peer as a “try before you buy” method to dictate their musical purchases (though fewer actually practice this method). Given the fact that almost every lawsuit served by the RIAA is followed up with a settlement letter for less than one hundreth of the claimed damages (an offered settlement of $3000 for a claim of over $1,000,000 is frequently reported), it seems almost painfully obvious that the RIAA is using the legal system to terrify college students into having their parents pay up a few thousand dollars, probably a drop in the bucket compared to their kid’s tuition, to make this potential legal hassle go away. The RIAA is preying on the unique nature of college students – being in a new environment already very stress-inducing, having access to high speed Internet for the first time, having slightly more discretionary income than they will have again for years, and dealing with the transition from childhood to adulthood – to milk out money offsetting declining CD sales. They have done this thousands of times, and will likely do it again, and against that Nesson and his crew seem to be directing the brunt of their attack.

Underneath this argument is a much larger policy issue, however. If the purpose of copyright is to encourage creative contributions in the arts and sciences, and the penalties are purportedly in place to give creators protection from abuses of their works, how can one find economic incentive in filesharing lawsuits given the fact that, in the overwhelming majority of professional music contracts, musicians see few royalties from CD sales? Typically, when you sign into a major label deal, you give up all royalty interest in the sound recordings (even if you recorded it yourself without the label’s help), and sometimes the label even takes a sizable stake in the underlying composition, even though they did not write the song (this is done with a controlled composition clause). If the song is a cover, the artist would see none of this money either way. Shadowing above all of this is the terrible advance/recoup method of funding recordings, which makes it so even Gold Record artists are not seeing any money from CD sales.

Artists are okay with this, or at least they do not put up so much of a fight as to deny this Faustian bargain, because of the other perks one gets as a major artist. Far more lucrative than the remaing royalties from sales, there are synchronization licenses with films, TV, commercials, and other deals, not to mention the somehow-still-lucrative world of live performance. One area an artist normally controls most or all of his or her royalties around, interestingly enough, is merchandise, so while buying the CD of an artist helps him or her marginally, buying the T-shirt actually helps rather substantially. So, with that in mind, how can we say that giving statutory damages to filesharing activity helps the artist create, when an artist would see pennies of that revenue were the song purchased or downloaded legally? It’s also worth nothing that, while to date the RIAA has collected thousands upon thousands of dollars from these filesharing lawsuits, not one artist is reporting any money paid out from this pool.

I’ll try and give updates to this story as best as I can, but I have my own legal quagmire (exams) to deal with at the moment. For more head over to Ray Beckerman’s Recording Industry vs. The People.

And Open Letter re: the V-Cast/Rhapsody ad on WEEI

Dear Verizon,

The Grateful Dead aren’t releasing any “new” tracks anytime soon. Jerry Garcia died in 1995. So when you have the kid in the cell phone commercial trying to have a moment with his dad by comparing the new Chris Cornell and “new” Grateful Dead you come off looking like the ignorant cell phone company trying to trade on the good name of music. Perhaps if you cared even a modicum about music you use to sell your phones you’d notice that. But you don’t. So don’t pretend you do and don’t darken my internet radio door again.

- Andy

Ted Leo does flash-EP on the RNC.

(thanks to Colin for the picture and the snark)

Rock demi-god Ted Leo was there at the RNC insanity in Minneapolis/St. Paul, and was so moved by what was going on he wrote a four-song EP on the subject, releasing it yesterday for download via Touch and Go/Quarterstick records (a label, which, looking at the roster, kinda kicks butt: The Meatmen, Man or Astro-Man, Cocorosie, Mekons…).

Ted, from the liner notes:

For a very brief moment, it seemed like people were actually reporting the truth.  The surveillance, pre-emptive detention, arrest, and beating of journalists, protestors, and watchdogs by the St. Paul police department, the Ramsey County sheriff’s department, and the FBI was so egregious that it couldn’t be allowed to pass without comment.  I heard WNYC’s Bob Hennelly compare the treatment of RNC protestors to the fact that Trojan condoms had a product booth inside the building at the Republican National Convention, saying, “It seems as if free speech exists only for those who can pay for it.”  I heard the name “Amy Goodman” actually spoken by, and written about in, the “mainstream media” after her roughing up at the hands of the St. Paul police.  The story of the ABC cameraman who was smacked around and had his video camera smashed was about to bring down the righteous indignation of a formerly complacent press.  And the license and viciousness and carelessness with which these acts and the banal bullying that seemed to be a constant around them – infiltration of peaceful (and not so peaceful) groups by police spies and agents provacatuer – the omnipresent pepper spray repeatedly maiming eyes that were only challenging with looks – stun guns, tear gas, and concussion grenades launched on a citizenry trying yet again to be heard – was finally coming under proper scrutiny.  Was there violence launched against delegates, property, and police as well?  I’m sure there was.  And the majority of it is to be dismissed and condemned, but some of it has be to be understood as what was likely a natural response to this culture of military free-reign that pumps our protectors up to believe that we, exercising our rights as Americans, are an enemy to be crushed without concern and without reason.  How they get away with it all…  How they get away with anything they want to!  We yammer on about the efficacy of trickle-down economics, but we ignore the trickle down effect that eight long years of example of contempt for the standards of the very same reasonable society this government claims to desire to defend, and the cynical exploitation of the populace via their fears and willingness to allow any transgression against their rights in the name of comfort (to inadvertently quote Shelter), but the proof of that trickle-down effect is all around, and was on display during the RNC in St. Paul.  And this was actually being discussed somewhere other than within the remnants of punk fanzine culture and marginal message boards!

Ever-hip, it’s a sliding scale purchase for the 4-MP3 digital EP. You can pay between $4 and $20 for it (proceeds going to the Minneapolis Food Not Bombs, and Democracy Now). You have to hand it to Ted Leo here, too. He took it from incident to EP in less than three weeks. The songs are good – sounding a bit more like Shake the Sheets deep cuts than tracks off Living With the Living. Here’s a taste:

Ted Leo & the Pharmacists – I Got Your Number

Thanks to Stereogum for the scoop.

“The Battle In Seattle”

Product Shop NYC brings to my attention the debut of a new movie about the 1999 WTO Protests in Seattle. The movie is called The Battle in Seattle, and opens in select theaters September 19th.

The movie tells the story of the tens of thousands (perhaps even hundreds of thousands) of protesters involved in the protests that brought the first US-hosting of the WTO Ministerial Conference to a complete halt and captured the world’s attention for weeks. It was one of the largest civil disobedience actions our country has seen in the past decades and perhaps the strongest memory of the ongoing anti-globalization movement here in the US (a movment which I don’t full-out endorse, but empathize with greatly). Here’s the trailer:

Seems fitting, as I’ve spent the past week exclusively looking at the horrible actions against civilians at the RNC, and the media’s baffling silence on the issue, that I examine this much more publicized recreation of another famous protest.

To say I am cautiously optimistic about the movie is probably meeting it more than half way. Truth be told, these “based on true events” movies never turn out the way you want them to (though I reserve the right to rescind that statement after I watch the much-heralded 70s classic Dog Day Afternoon). Rotten Tomatoes does give it modest-to-high-marks, and I also can’t help but notice No Country For Old Men and “Cheers” supporting actor Woody Harrelson in the trailer, and I do tend to like his work. This is the directorial debut of actor Stuart Townsend; he has no record of screwing this up, and thus I should give him the benefit of my large doubts.

I acknowledge that, in these sorts of movies, the want for total truth and objectivity in remembering these events does need to be compromised, for the sake of getting these stories out and into the national consciousness. Trust me when I tell you this is not a concession I make lightly.

However, I do think that a movie profiting off of the risks and lives of others, especially in an issue so recent, should not be considered a success unless it awakens the viewing public to the struggles and efforts of those involved. Not only should it enlighten viewers to the merits and demerits of the protesters, but of the good and bad actions of the police, the City of Seattle, the media, and all who made that decade-old nightmare come to pass. I know it’s “only a movie,” but such is the cost of doing a movie based on true events where you cannot simply buy the life-story rights of a person.

I do not think for a moment that Mr. Townsend gave the thousands of people he now seeks to exploit any form of monetary compensation. No doubt people will judge the actions of these real people based on how this movie portrays them. What compensation do those who were unlawfully detained, those who were shot and wounded, and those who risked their very lives in this cause in Seattle get from having their likeness commercialized by Hollywood actors and actresses?

In the end, if this serves to open our eyes to the complexity and very real nature of civil disobedience happening all around us, then I shall call this movie a success.

If all we are doing here is selling some popcorn, and the brave actions of those protesting in Minneapolis and St. Paul this past week will not benefit – that is, will still be left unaddressed until cast and shot in HD for a retrospecitve biopic in 2018 – then this movie does nothing.

Rage Against the Machine get banned, play anyway

Moments like this remind me why I love (and study) the power and rights of music.

The public safety divisions of Minneapolis decided to shut down a Rage Against the Machine performance at a permitted public rally, technically because they showed up too close to curfew and not with the right permit, allegedly because they were held backstage until it was too late, and ostensibly because the police did not want them to play.

So, with only a megaphone, they play anyway.

It’s Rage, so, um, NSFW.

You and Me and the DNC

BagNewsNotes is a fantastic resource for anyone curious about photojournalism and its subtle (and often not-so-subtle) contexts. It is one of the most visually stunning and interesting political websites I’ve yet to uncover, and many thanks to Mr. Colin Ashe for passing it along. Today we were treated with one of the first glimpses into the Denver DNC:

BagNewsNotes:

This shot more than captures the rise, and resourcefulness, of the new netroots political media.  In the shot, Bill Scher of Campaign For America’s Future (well known for his ability to blog standing up) interviews public policy expert Steve Clemons of The Washington Note in the Google lounge of The Big Tent (in other words, blogger central).  Using his MacBook as a video camera, you can see Al Shaw, our producer capturing the interview with his iPhone uploading directly to the web via Qik, with yours truly on screen just off Steve’s left shoulder

What strikes me in this shot, much like BNN, is not so much the technology-porn we’ve just borne witness to. Everything we see here is commercially available at a relatively low cost. The technology used to capture this event varies little from the phones and laptops many of us have today. One gets the feeling netroots, as they say, will rule the day in this year’s DNC.

I’ve had the good fortune of seeing a number of events worth taping for posterity, and worked with a fair share of documentary and journalistic filmmakers. Over the past year or I’ve seen the shift so eloquently captured in this picture (were it not for the Google banner, this would effectively be a good Apple ad, too.) For the first time, people can produce and distribute videos of a high caliber throughout the known world, instantly. And anyone with the money to get their hands on these and a pass in the door now stands on close to equal footing with the print and TV news media. While the big “J” Journalists may have the expertise (both in-house and brought on the show) and the high production value, groups like these can capture and produce faster, more efficiently, and often times fundamentally better than those elsewhere. And I for one would not draw the distinction as one between “amateur” and “professional.” This is the line between “new media” and “old media,” between technology-hesitant versus technology-forward, and, fundamentally, between a closed-access event and an open-access event.

What does this emergence of a major open-access media event mean? It’s hard to say until this week is over. But I’ll be very curious to see how the DNC and RNC, relatively open forums for taping, contrast with the Olympics, a tremendously regulated forum, in terms of the quality and volume of content produced. I would not be surprised if many of us find more pleasure prowling the videos captured by the many over being fed the glossy videos of the few.

As a side, the person with the legal finesse and technical skill to tie all these democratically-produced (little “d” democratic, that is) segments into a clear media center for these events stands to be very successful.

Our Scrabulous Affair

(image courtesy of Flickr user allyrose18)

By now we’ve all heard about the Hasbro/Facebook/Agarwalla brothers fiasco surrounding the popular Facebook application Scrabulous. If you haven’t, take the time to click the Wikipedia link and get familiar. People have been asking me to comment, so I’ll take this stormy Sunday as a chance to chime in. I’ve got a proper (amateur) analysis, and a very special treat from one of my favorite bands.

First Four Words

As I mentioned last week, along with Public Knowledge, Digital Media Insider, and BoingBoing, the Associated Press created incredibly strange, highly unwanted, and potentially superseded by law “quotation licenses” for their content, as a way to make money off of what should simply be a case of fair use. Worse than that, they reserve the right to revoke the licenses if they don’t approve of the use, creating a horrible chilling effect on the free press that Nielsen Hayden illustrates quite well. This week we’ve also seen it come out that the group the AP claimed (and New York Times repeated) to have been negotiating with on behalf of the blogosphere, the Media Bloggers Association, has not met with the AP, nor do they claim to represent the entire blogging world.

My supreme disappointment with an organization I used to hold fairly dear has already manifested itself in a couple rants here. Last night I decided to do something a little more snarky about it:

Announcing The First Four Words, a website which will give you the first four words off of the top AP story once or twice a day. I would give you the full headline, naturally, but that would cost me $12.50, and I’d rather spend that money on some used records and a slice of pizza.