When Legal Meets Marketing

Entertainment and technology converge with culture and politics.


Last summer, as the explosive popularity of YouTube became obvious to the older media companies, the marketing department at the Cartoon Network decided to use the site to promote its shows. So it posted some video clips there, hoping the promos would get forwarded in emails, linked on blogs and MySpace pages, and otherwise spread through the Internet, strengthening the channel's fan base and drawing in new viewers.

Happily, people noticed the videos. Unhappily, some of the people who noticed the videos worked for the Cartoon Network's legal department, who mistook their colleagues' new marketing tactic for an unauthorized appropriation of the firm's intellectual property. They promptly sent cease-and-desist letters demanding that the clips come down.

Molly Chase, the executive producer of Cartoon Network New Media, told this story at the Futures of Entertainments Conference at MIT last weekend. "You have to communicate well internally," she concluded, as appreciative laughter rippled through the auditorium.

The conference was sponsored by the Convergence Culture Consortium, the umbrella that allows MIT's intensely interdisciplinary Comparative Media Studies program to collaborate with companies interested in exploring a landscape where the line between producers and consumers is no longer as clear as it once seemed to be. Among its other virtues, the event lived up to its sponsor's name: The Cartoon Network may have had some trouble getting its lawyers and marketers on the same page, but here you could see entrepreneurs mixing with educators, admen with game-world architects, artists with engineers. During Chase's panel, a jargon-dense question from a grad student at Brown, complete with at least two references to "late capitalism," was followed shortly by a query from a man employed by World Wrestling Entertainment. At the Friday night reception, I found myself seated between an officer in a small gaming company and an anthropologist studying Firefly fans. A couple chairs down was a fellow journalist—she was interviewing people for Spellcast, a podcast devoted to the Harry Potter fan community.

And a couple chairs down from her was Henry Jenkins, the director of the Comparative Media Studies program, the creator of the Convergence Culture Consortium, and one of the organizers of the conference. A decade and a half ago, Jenkins first made his mark by researching what then was a radical concept: fans who, rather than sedately consuming the creations of the culture industry, actively rewrote the fictional worlds they loved. Just half a decade ago, fan culture was more visible but hardly more respectable, as corporations cracked down hard on unauthorized films, novels, and other art that arguably infringed on their copyrights. Today the clampdowns haven't ceased, but they're rubbing against something new: a growing awareness within the media companies that such fans can be courted, treated as allies, and recognized as an enormous reservoir of voluntary labor.

Indeed, several attendees took one of the most familiar arguments of the ongoing intellectual property debates—that fan artists are merely appropriating other people's creative work—and turned it on its head. Aren't the media companies benefiting enormously from the unpaid efforts of the fans? Who, exactly, should be demanding compensation? (Give credit once more to Cartoon Network: Earlier this year, when it held a competition to create a commercial for a Harvey Birdman DVD, it called it the "Do Our Work For Us!" contest.)

Almost as important, the conference included the voices of a very different set of media companies: the creators of multi-player games, online social spaces, and other tools that deliberately foster user-generated content. That too is a sort of convergence, and the attendees that hailed from those businesses seemed less nervous than at least some representatives of the old-media world.

Contrast the first panel of the weekend with the second. The first featured a collection of TV pros trying earnestly to adapt to the new landscape. Josh Bernoff of Forrester Research—the one panelist who didn't work directly for television or the ad industry—set the tone with a series of statistics. More than one in four households already have access to cable on demand, he said, and half of those are actually using it. When TiVo subscribers watch TV, they skip 80 to 90 percent of the commercials—"and I know that's a problem," he cracked, "because the TV networks all say it isn't." Fellow panelist Andy Hunter, who creates marketing campaigns for the Austin-based agency GSD&M, added that advertising was slowly migrating to the Internet, a process hobbled by the fact that it's still hard to measure its effectiveness there.

Mark Warshaw, a writer-producer-director for the cult hit Smallville, was enthusiastic about the new possibilities, noting that many people in broadcast TV regard the Web as a vibrant farm team. But Betsy Morgan of cbsnews.com spoke for a lot of television executives when she described the YouTube universe: "It's great and it's horrible at the same time." She was pleased to see her network's content get a second life and reach new audiences, less pleased to see it remixed in "funny and sometimes inappropriate ways." And while all the panelists agreed that you ultimately address piracy by outcompeting it, not by cracking down, Morgan still casually described BitTorrent users as "stealing" the shows they download, a stance that hardly recognizes all the ways that people use the application.

The most telling moment came when she described a business meeting she and some colleagues once had with Apple. The details of the deal aren't important. What's significant was that, by Morgan's own account, the TV people were caught up in pleasing all their stakeholders, while the Mac man was concerned solely with improving the consumer's experience. It's a pretty good snapshot of the difference between a company that sells eyeballs to advertisers and a company that sells tools to the audience.

The second panel, by contrast, was devoted to content generated by the audience itself. The speakers included Caterina Fake, co-founder of Flickr, where millions of amateur photographers post and share pictures; Rob Tercek of the (M)FORMA Group, which produces mobile entertainment; Kevin Barrett of BioWare, which makes computer-based role-playing games; and Ji Lee, a repentant advertiser who started sticking empty speech balloons on ads around New York City, waiting to see what people would write inside them and photographing the results. What they have in common is that their work is closer in spirit to architecture than to TV: They all build structures where users can roam, interact, and create and share their own content. Fake suggested that there is a "general exhaustion with mass consumer culture," and that less passive forms of entertainment are arguably the natural state of affairs—it wasn't long ago, historically speaking, that quilting bees and front-parlor music occupied the space now filled by movies and television. Tercek argued that economic logic favors user-generated content: It's cheaper to push the cost of creation onto the consumer than to produce a bunch of expensive TV shows, only a handful of which will be hits. And Barrett noted that, while only a minority of the grassroots creations being generated might be "good" by mainstream standards—it's "99 percent ass," he announced—that doesn't matter from the ordinary consumer's point of view. What's important is that it fill a need for the people who make it, not that anyone outside their immediate circle find it engaging.

You can't predict the way those people will use those tools. Flickr began as a feature in a long-dead online game, a way players could drag and drop photos into instant messages. The programmers soon added the ability to post those pictures on webpages, and that was the side of their service that succeeded. Wise companies—put another way, companies that survive in the marketplace—understand that it's better to foster and follow such serendipitous developments than to try to force your users to conform to your original vision. It's telling to contrast the story of two social networking companies, Friendster and MySpace, a tale told Saturday morning by the social media researcher danah boyd. Friendster, launched as a dating site, cracked down when people used its network for other purposes—to write funny fake profiles, say, or to build bridges between bands and their fans. MySpace, by contrast, watched with interest when new uses emerged. They kick out some people—con men, pedophiles, porn sites, Nazis—but their general approach is to watch and learn. That poses some substantial risks, but it's also a reason why MySpace is so enormously successful while Friendster has faded. As Tercek put it a day earlier, you can create an architecture that's all about participation, or you can create one that's all about control. The latter might look participatory at first, but it doesn't take long for the users to figure out the difference.

At least some traditional media companies are willing to give up at least some of that control. Earlier I mentioned Molly Chase of Cartoon Network, who was an animation fan long before she was an animation executive; her YouTube tale is funny, but it also shows that her channel is eager to experiment, even if the lawyers aren't entirely on board. On the same panel, Diane Nelson of Time Warner talked sensitively about her relationship with fan communities; I don't know how many people at her firm share her views, but she clearly understands how much it relies on the fans' goodwill. The Harry Potter books and films, for example, are aimed primarily at children but also have a substantial adult audience, some of whom write pornographic "slash" fiction about the characters. Rather than denouncing the slashers, Nelson said she wouldn't try to stop such expressions; she just wanted to ensure that no one, especially no children, mistook them for official products of the Potter franchise. Afterwards, one of the Potter fan writers in attendance told me she wanted to stand up and cheer.

More convergence: The weekend included several reminders that world-building, far from being the sole preserve of game designers and the like, has invaded Hollywood, that hotbed of traditional storytelling. On one panel, Jenkins quoted a screenwriting acquaintance: "When I started, we pitched stories, because you had to have a good story to make a good film. Then I pitched characters, because a good character could sustain multiple sequels. Now I pitch worlds, because a rich world can support multiple stories about multiple characters across multiple platforms." It remains to be seen whether Hollywood will be very good at world-building—sometimes it seems to have lost its grasp on basic storytelling, let alone all the add-ons—but if the studios can't do it, someone else will.

Hence the final panel of the conference, on the rise of immersive, interactive virtual worlds. That doesn't just mean multi-player games like World of Warcraft. It means places for all sorts of social interaction—like a chatroom with detailed three-dimensional animation. John Lester of Linden Lab, the company that created the virtual world Second Life, reeled off many possible uses for his virtual environment, from scientific visualization to patient self-help groups. (There's a private island in Second Life for people with Asperger's syndrome, who can create everything from virtual gardens to virtual restaurants. One of them started building virtual boats, discovered he was good at it, and soon had a fledgling business selling them to other Second Lifers in the world's virtual currency, Linden dollars.) Ron Meiners of multiverse.net described his company's plan to build a platform that will let other people build yet more worlds on a license-free basis, from enormous World of Warcraft-style games to amateur, user-generated realms, each with its own aims and mores.

Whether or not these particular cyberplaces manage to thrive, virtual worlds will continue to attract new users, to evolve, and to raise some intriguing political questions. In Synthetic Worlds, a thoughtful, engaging, and occasionally absurd book about these emerging online environments, the economist Edward Castronova asks, "Should a synthetic world government be held to the same standards of performance as we apply to Earth governments? Or is the objective simply to have fun? Do all good governments, as defined by the great, and dead, political philosophers of the Western tradition, maximize the amount of fun to be had?" It isn't a familiar political question, but it's the kind of query that's raised when the "governments" you're describing are not states but proprietary communities and informal adhocracies.

In the last and best segment of Anarchy, State, and Utopia, Robert Nozick called for "a wide and diverse range of communities which people can enter if they are admitted, leave if they wish to, shape according to their wishes; a society in which utopian experimentation can be tried, different styles of life can be lived, and alternative visions of the good can be individually or jointly pursued." He didn't mention giant robots, pimped up hobbits, or the other avatars who dwell in today's synthetic worlds, but the same idea applies: Different covenants compete within a larger framework of freedom.

Even if the Cartoon Network's lawyers never send another nastygram, even if every content company stops cracking down on fan fiction, even if every threat to Internet freedom fades, these developments should be of enormous interest to every friend of liberty. Self-directed action, emergent behavior, competing voluntary communities—there's a lot we can learn from this alternate universe unfolding online. We'll have to learn from it: As the Internet creeps off our desktops and into our pockets and cyberspace seeps into the physical world, those two universes will also inevitably converge. And like Friendster or MySpace, the institutions that rule the physical plane have a choice. They can react by inviting more participation, or they can react by imposing yet more controls.

Jesse Walker is managing editor of Reason.