Batman and Robin #5 by Grant Morrison and Philip Tan (2009)We've seen plenty of doppelgangers trying to steal the mantle of the Bat before. But this time, it looks like the Red Hood and Scarlet are ready to get serious by using some economics! Here, Hood is seen reading an book by an economics Nobel laureate about branding and marketing. "That's all Batman is now--a brand, a logo, an idea gone past its sell-by-date. We're the competition," he says.
If this notion of superheroes as brands sounds familiar, it might be because we've actually written about it before--particularly in our post on superhero franchising, but also in our posts on Spider-Man's failed advertising attempts, superhero decadence, superhero supermodels, superheroes using twitter, and minimizing superhero externalities.
It's nice to see some of these characters (even if they are villainous) discovering the importance of economics. However, I wonder if the Red Hood's plan will work here. I mean the Batman franchise is one of the longest running in the world in the superhero industry. It is generally known and trusted. It would take some major discrediting for a new brand to dominate the market. Add to that the fact that the Bat-franchise is relatively resistant to shocks due to changes in leadership, which is precisely what Hood is trying to exploit.
Tough market, guys. But I like your hustle. I mean, really, what can go wrong?
Oh yeah, that.
If this notion of superheroes as brands sounds familiar, it might be because we've actually written about it before--particularly in our post on superhero franchising, but also in our posts on Spider-Man's failed advertising attempts, superhero decadence, superhero supermodels, superheroes using twitter, and minimizing superhero externalities.
It's nice to see some of these characters (even if they are villainous) discovering the importance of economics. However, I wonder if the Red Hood's plan will work here. I mean the Batman franchise is one of the longest running in the world in the superhero industry. It is generally known and trusted. It would take some major discrediting for a new brand to dominate the market. Add to that the fact that the Bat-franchise is relatively resistant to shocks due to changes in leadership, which is precisely what Hood is trying to exploit.
Tough market, guys. But I like your hustle. I mean, really, what can go wrong?
Oh yeah, that.
Branding is at least as much about legal positioning as it is about economics. In fact, our intellectual property laws are all premised on the clause in Article I, Section 8 of the Constitution giving Congress the power:
ReplyDelete"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;"
Note the phrase "useful arts": you get to secure exclusive rights to things that are useful. And in fact that concept carries over into both copyright and patent law with the respective originality and novelty requirements.
Branding, however, comes out of trademark law, which is premised on the concept of protecting the public from false sourcing. Not surprisingly, in this country it can be tracked back to the brands that were seared into cattle to identify which herd they came from.
Thus, when we talk about the Batman brand, we are not really talking about something that can be created legally as much as something that can be protected once it has become unique (non-generic) and distinguished from other brands. This means Red Hood cannot really sabotage the Batman brand as create his own brand. He must ensure that it is unique, distinctive, not merely generic or descriptive of what he does, and most important does not call to mind or associate him with the Batman brand. He's actually well on his way to doing that. "Red Hood" is fast becoming known as the more violent, 'eye for an eye' style of justice. When you deal with the RedHood brand, you expect the corpses to stack up. When you deal with the Batman brand you expect brilliance, swift retribution, but tempered with a certain respect for life.
Red Hood must ensure that his brand does not blur, confuse or dilute the Batman brand. For example, a campaign to build brand recognition on the theme of "RedHood - the Robin you trust, the justice you need" may help build the brand concept of a new style of vigilante justice in town. But it would also tie the RedHood brand too closely to the Batman brand in that Robin is clearly under the Batman brand umbrella. Batman could then seek an injunction preventing its use on the grounds that it will cause confusion and would not be good for the public. Lest anyone think that's unlikely, think of how paranoid Batman was about people setting up shop in his town, e.g., Huntress, without his seal of approval. Bruce doubtless is well aware of the need to police the brand and set quality standards.
Conclusion: RedHood can establish his own brand, but it will be an uphill battle. He will win a la iPod over Walkman only when the RedHood brand is both well-known, and clearly separate from the Batman brand. Meanwhile Batman has many tools available to make this a difficult task.
Disclaimer: IAAL but this is not legal advice, etc.
I love reading your comments, Michael. How does uniqueness fit in when we have a secret identity? I mean theoretically Batman could be multiple people, right? And no one would ever know.
ReplyDeleteThere's actually an entire section of the Trademark (Lanham) Act that deals with that! OK, it doesn't reference superheroes (but wouldnt that be cool!)
ReplyDeleteWhen the mark/brand is new, it is crucial to maintain continuity and consistency of use. Otherwise the creator of the mark runs the risk of genericizing their own brand. The classic examples are Kleenex (for tissues), Xerox (for copiers) and Aspirin (for analgesics). That's why you get so many references to "Aspirin brand analgesic." Today, Google runs a similar risk - no one uses the Google brand search engine; they just google each other.
Fictional characters as marks have a rich history and in fact have established a lot of the law in this area. The best known example was National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951), a twelve year legal battle over whether Captain Marvel infringed the Superman trademark! DC ultimately won that one with Fawcett going broke. (Interestingly enough, a subsequent case, Warner Bros. Inc. v. American Broadcasting Co. 720 F.2d 231 (2d Cir. 1983) with Superman challenging The Greatest American Hero came out the other way - this comic sendup was not an infringement.)
Once the brand has some degree of recognition, though, the value in the brand can be transferred through multiple owners (called transferring the goodwill), and even expanded beyond the original.
So early in his career Batman did have to maintain brand uniqueness scrupulously. Now the Red Hood better do the same thing. If it becomes known that multiple people wear the hood, or he starts pardoning some criminals and executing others, he jeopardizes his brand. Once the name is well-established, though, he can pass it on to someone else, as long as they (i) continue to represent the brand faithfully, and (ii) the original stops using it. The latter requirement is what makes the Battle for the Cowl interesting to a trademark lawyer. If Bruce has provided for a proper succession, the Batman brand would have passed to Dick. With several contenders, though, there was some risk of it losing its value. The same thing happened, of course, during the Reign of the Supermen. Somebody at DC must have thought of this because I recall that Superboy/Superman Kon-El's agent actually argued that he owned the brand because he had taken the time to register it (though I think he said with the Copyright Office, which is incorrect; should have been the Patent & Trademark Office). That registration would have ultimately been rejected, though, because clearly KonEl was not the original user.
Glad you like the posts, ShadowBanker.
Princess Bride has an excellent example of the brand transfer and the goodwill (or fear, in that case) associated with the Dread Pirate Roberts brand. No one would surrender to Dread Pirate Wesley, but by using the Dread Pirate Roberts name, Wesley was able to become a profitable pirate with minimal effort and carnage solely based on the brand established by others before him.
ReplyDeleteFawcett didn't actually lose the lawsuit against National, at least not in the courts. Instead they stopped publishing Captain Marvel because it wasn't selling well. (They ended up settling by leasing the good Captain and family to National).
ReplyDeleteSo, it's fair to say that National "won" the battle (just not the lawsuit). They did so because they'd built up Superman as the more viable brand (and/or also had superior distribution and/or several other contributing factors).
My point: It was really a battle of brands, not legalities.
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