Ah, those TV people are clever.
For the double bill that opened the latest series of 1960s ad-land drama Mad Men in the UK, broadcaster Sky Atlantic sourced commercials from that period for a very special break. Top consumer brands that have endured to this day, such as KitKat, Milk Tray, Tetley tea and Pringles, were included in the decidedly Low Definition selection – much of which was pulled from the archives of the History of Advertising Trust. The gimmick’s PR attributes soon bore fruit: according to the Radio Times, the brands’ current holders lined up to pay for their slots, even though Sky Atlantic is a subscription channel.
Later in the flower-power-era series, a discussion about music licensing costs came up. That prompted male lead Don Draper (Jon Hamm) – a man in his 40s – to kick back and try to understand what ‘the kids’ are listening to. His track of choice for this mission was The Beatles’ ‘Tomorrow Never Knows’ – which he quickly turned off, unable to form a connection. For the few seconds that it played, the Fab Four master recording(signed off by a host of licensors, including Paul McCartney, Ringo Starr and Yoko Ono) set Mad Man producers AMC Television back $250,000: a much higher price than the $100,000 that would be charged for a song by virtually any other act. Perhaps the producers were living up to the name of the programme!
As the above details demonstrate, pop culture is capable of sharp intellectual property (IP) awareness. Which made NewLegal Review think, why isn’t there a marking system for this sort of thing? Well, you know what they say: necessity is the mother of invention…
CASE ONE: Iron Man (2008); Hulk (2003)
We start with a Marvel Comics face off – for the compelling reason that Iron Man protagonist Tony Stark is an inventor, and Hulk’s Bruce Banner a scientist. These guys practically drip with IP.
Not that the writers of Iron Man seem overtly concerned. Sure, the film shows Stark inventing all sorts of things. But when it comes to registration, and especially terminology, it is sadly lacking. We do come close to the correct language, when Stark is selling weapons to a detachment of US troops in Afghanistan – stressing that his Jericho device is the first missile ‘to incorporate our proprietary repulsor technology’. But this is about the only line suggesting that his inventions actually belong to his company, Stark Industries.
Hulk fares much better, particularly in a scene where the scheming Major Glenn Talbot – doubling as Army bigwig and chief of a life-sciences outfit – approaches Banner’s lab colleague Betty Ross and extends a job offer. ‘I’ll cut to the chase,’ he says. ‘I’ve been hearing interesting things about what you guys are doing here. Your molecular machines have some incredible implications. How’d you like to come and work for Atheon? Get paid 10 times as much as you earn now… and earn a piece of the patents.’
Bingo on the lingo, for starters: we have a bona-fide mention of a key IP category – plus hints of possible infringement and/or antitrust issues.
Later, Talbot visits a post-Hulk-rage Banner in a steel-lined containment cell. In a fit of indecent optimism, Talbot begins to wind Banner up about what he plans to do with all of the scientist’s technology – including the mutation held in Banner’s own DNA. ‘See,’ says Talbot, ‘I need your cells to trigger some chemical distress signals – y’know, so you can turn a little green for me again? Then I can carve off a piece of the real you, analyse it, patent it… and make a fortune. You mind?’
A case study on gene-patent ethics if ever there was one.
Iron Man: 3/10
CASE TWO: Doctor Who, ‘Silence in the Library’ (2008)
In this episode from 2008’s series, the Doctor (David Tennant) and his assistant Donna Noble (Catherine Tate) land the TARDIS on a planet that functions as giant lending library for intergalactic bookworms. While looking around, they are interrupted by investigators who want to probe a bug in the library’s software – a problem triggered by an alien presence.
One of them, Mr Lux, has a family connection to the library’s inventors. His personal assistant, Evangelista, hands the Doctor and Donna ‘personal experience contracts’ for registering their presence on the planet, and tells them: ‘You need to sign these contracts agreeing that your individual experiences inside the library are the intellectual property of the Felman Lux Corporation.’
Ah! Non-disclosure agreements (NDAs). Very good. The only drawback: while taking the contracts, the Doctor and Donna mutter some sarcastic quips and immediately tear them up. There’s just no pleasing some time travellers. From that point, the mystery of the library deepens, and the Doctor strikes up a conversation with a young girl who appears to be trapped in its central computer. This is followed by the appearance of the word ‘CAL’ on the computer’s screen.
‘But who is the little girl?’ the Doctor asks the investigators. ‘What's she got to do with this place? How does the data core work? What's the principle? What's CAL?’
‘Sorry,’ replies Mr Lux, ‘you didn't sign your personal experience contracts.’
‘Mr Lux,’ despairs the Doctor, ‘right now, you're in more danger than you've ever been in your whole life… and you're protecting a patent?’
Great stuff, this: spot-on with the terminology, and having fun with it in a life-or-death situation.
Doctor Who, ‘Silence in the Library’: 8/10
CASE THREE: The Social Network (2010)
This treatment of Facebook’s genesis confidently drills into the rich seam of legalese provided by the tale of founder Mark Zuckerberg, portrayed as a young man caught in a hail of lawsuits. On one hand, estranged Facebook partner Eduardo Saverin is suing him for dilution of shares; on the other, fellow Harvard alumni the Winklevoss twins are pursuing an infringement claim.
In an early scene, Harvard student Divya Narendra – the twins’ business backer – asks Zuckerberg about a potential hit application that he was rumoured to have invented in high school. Zuckerberg admits that, yes, he created an MP3 service that worked out people’s tastes in music. Impressed, Narendra asks whether anyone tried to buy it. Zuckerberg says: ‘Microsoft.’
‘Wow,’ says Narendra. ‘How much?’
‘Didn’t sell it,’ shrugs Zuckerberg. ‘Uploaded it for free.’
Narendra looks astonished. ‘For free?’ he sighs. ‘Why?’
That exchange neatly captures the software industry’s IP journey from the wide-eyed innocence of open-source and shareware, to the need for a proprietary approach that can help to sustain businesses.
Later on, after the twins have begun their lawsuit, Zuckerberg protests at what he considers a trivial development. ‘I didn't use any of their code, I promise,’ he tells Saverin. ‘I didn't use anything! Look, a guy who builds a nice chair doesn't owe money to everyone who ever has built a chair, okay? They came to me with an idea. I had a better one.’
In those lines, Zuckerberg is touching on questions of obviousness – that what the Winklevoss twins came up with was a sitting duck, and it was up to him to augment their input with his own in order to achieve a truly inventive step. This is the sort of thing that could keep IP lawyers debating well into the early hours.
Like the Doctor Who example, The Social Network also wins points for using IP as a hook for wry humour. When Narendra and the twins are discussing Zuckerberg’s potential infringement of their Harvard Connection site, Cameron Winklevoss asks: ‘What, do you want to hire an IP lawyer and sue him?’
‘No!’ says Narendra. ‘I want to hire the Sopranos to beat him with a hammer!’
It doesn’t get much more sophisticated than this.
The Social Network: 10/10