John Drake

Fair Use and Parody In Advertising

A favorite course in college was Communication Law. It was interesting and, as it turns out, one of the most helpful classes I ever had. Not because I remember all the law stuff, but because my rough familiarity makes me really interested to understand contemporary applications of fair use and parody.

The social web has made this much more handy than I ever thought. We once had an entire campaign for Microsoft based on fair use, which is still one of my favorite collaborations.

All of this is why I enjoy the weekly emails from the Art Law Journal. They take what could be a bland topic and write about comm law in a cool way while choosing topics that aren't what you'd expect something called the Art Law Journal to write about.

Like why Kiss My Ass is parody.

 

 

 

 

 

 

 

 

 

 

 

And why the Power Rangers short film probably wasn't Fair Use, but it won out anyway.

 

 

 

 

 

 

 

 

Since I look this stuff up on a reoccurring basis, I thought it would be handy to capture the key points on parody and fair use in one place.

What Qualifies As A Parody/Protected By Fair Use?

1. To be a parody it must be obvious: the audience should not have to struggle to figure out what is being made fun of.

2. To be a parody the creator must take no more of the original than necessary to make the point. (So changing just the words in a chorus of a popular song, while leaving the rest of the song intact, is likely not fair use.)

3. The parody cannot pose a direct threat to the market for the original work. (Would people buy the parody instead of the original, cannibalizing sales of the original?)

Saturday Night Live is very familiar.

And then...

The Four Factor Test That The Courts Run To Evaluate Fair Usage

1. The purpose and character of the use: news reporting, educational usage, research and criticism/comment all fall here. 

2. The nature of the copyrighted work: typically, choosing facts over fiction and published content over unpublished is more likely fair use.

3. The amount of the portion taken: small portions of material and parts that are not "the heart of the work" is more likely fair use.

4. The effect of the use upon the potential market: if the use has no significant effect on the original's market, it's more likely fair use.

Net Neutrality's Dress

I look forward to the Quartz Daily Brief each morning. On Saturdays it comes with a short letter. The Dress thing is meaningless alone. With others it becomes something. Interesting that it surfaced on the day the web became a public utility.

The Good Feeling Of Classic Things

 

Found, what I think is, my old first-gen iPod touch. After fiddling around with it the option surfaced to change the wallpaper to some preloaded iPod artwork from that time...

I remember when this campaign seemed to surround me as I drove through the city. Creative work that's so simple, but so difficult to do.

It was cool to see it again.

Some things hold up in their own special way.

Like how Gatorade just re-mastered #BELIKEMIKE after 23 years.

Awareness, Interest and Convincibility

When I'm in a grocery store, a good end-aisle display combats one of three things regarding my relationship to a product.

1. I'm not aware. A prominent design makes sure to alert me to something I wasn't aware of. Like the early pieces for Coke Zero did so well.

2. I'm not interested. A product that I don't regularly choose has done something interesting. Like how I had always skipped over purchasing Elysian beers (for no reason really), until I saw that they had a beer featuring Sub Pop Records. 

3. I'm not convinced. This is where I'm making a regular choice among a lot of competitors. Like a bottle of wine. Where a Wine Spectator 90+ ranking hanging off a bottle will surely help convince me to experiment with an unknown brand.

I wonder if the role of most in-store designs are considered in this way before they're built? Sometimes I bet they are. Other times, I wonder.

Being Culturally Unanchored

The first time I heard Nick Drake was in an ad. A beautiful VW ad. From there I backtracked the music and became a fan.

Nick only recorded three albums during the late 60s and early 70s. None of them sold well. But as time has gone by people have discovered him, even making pilgrimages to his childhood home. It's a genuine popularity that the artist, unfortunately, never personally experienced.

99% Invisible did an award-winning piece on his music.

I was taken by one part in particular...

When asked if he was surprised about how popular Nick Drake has become today, the original producer who discovered Nick and created the first two albums with him said: 

"No. I always thought he should be that popular. I don't know how to deal with questions like, 'was it ahead of its time?' I don't think so. It happened in that time, and it was a set influences from then. But in a way its failure at the time has been part of its success now in the sense that people growing up in the 80s didn't have parents who were playing Nick Drake to death. There are no films from the 60s with Nick Drake as the soundtrack. It's not identified with that period. It is culturally unanchored. So it's free to be adapted and embraced by people from other generations and people who just come upon it. It doesn't say 'I'm from the 60s. It just says, I'm Nick Drake.'"

What a wonderful sentiment. Most things are locked to an era. But sometimes things aren't. They're free. Unanchored.

Sometimes It Depends On Misunderstanding Each Other

Question to John Cleese: In your career you’ve had periods of close collaboration with other creatives and periods of very focused individual expression. Do you work better alone or with partners?

A: It depends on the subject matter. I’m writing my autobiography now, and I don’t think there’s any point at all in doing that with anyone else. But traditionally, comedy writers have worked in pairs, and I like that. I do believe that when you collaborate with someone else on something creative, you get to places that you would never get to on your own. The way an idea builds as it careens back and forth between good writers is so unpredictable. Sometimes it depends on people misunderstanding each other, and that’s why I don’t think there’s any such thing as a mistake in the creative process. You never know where it might lead.

Good interview.

Tone of Action

In the presentation "Are Brands Fracking the Social Web?" there's talk about shifting brand tones. Moving them beyond just feelings and compressed language to become a tone of action. I've long held that "tone" is one of the most important parts of a creative brief. But it's often dismissed because tone, too often, shows up as a series of common, lazy, uninspiring words.

In the book Contagious: Why Things Catch On Jonah Berger writes that when it comes to understanding word of mouth, only 7 percent happens online. You might think it would be higher. I did. But it's only 7 percent. Which makes sense. Life is lived going out to lunch and chatting in the hallways. We're talking offline, face-to-face, much more than we're talking online.

These things relate. A tone of action is more remarkable than a tone of voice. What an organization did, how they handled a situation, their degree of uniqueness and originality... such things of action warrant more word of mouth storytelling than just their voice.

The Significance of Inverted-U Curves

In many things, the more resources we add, the better the output. This, of course, can be graphed with increasing performance tying to increasing resources. But does an ascending performance line start to dip back down once too many resources are added? Malcolm Gladwell provides some research in David and Goliath that argues this happens more frequently than we may think.

He takes student class size. It's assumed that the smaller the class size the better the performance. But research suggests that as classes become too small an adverse affect sets in. Too few students means dominant personalities can take over, there's less group discussion (a vital part of a classroom) and educational gameplay opportunities drop. It presents an Inverted-U Curve:

From the book:

"Inverted-U curves have three parts, and each part follows a different logic. There's the left side, where doing more or having more makes things better. There's the flat middle, where doing more doesn't make much of a difference. And there's the right side, where doing more or having more makes things worse."

It's a provocative thought. In business, be alert to the Inverted-U Curve. If there's too much ideation time, when do we begin to over-think? If there's too much collaboration, when do we begin to dilute? If there's too much data when do we begin to over-react? Nice to know there's a principle for such questions.

When Things Just Click

Elton John recently went over all of this recordings and pulled out the ones that meant the most to him. He recounted why to Cameron Crowe. 1970's "Your Song" was one of them and he said:

"What can I say, it's a perfect song. It gets better every time I sing it. I remember writing it in my parents' apartment in North London, and Bernie giving me the lyrics, sitting down at the piano and looking at it and going, '...this is such a great lyric, I can't *#@* this one up.' It came out in about 20 minutes, and when I was done, I called him in and we both knew. I was 22, and he was 19, and it gave us so much confidence."

Twenty minutes. It's so unpredictable when it happens like that. But sometimes it does. And then it's up to us to trust it and sort of leave it alone.

Writing

 

“What in heaven’s name brought you to Casablanca?”

“…My health, I came to Casablanca for the waters.”

“The waters? What waters? We’re in the desert.”

“...I was misinformed.”

 

Do we spend enough time talking about great writing?

Or just recognizing great writing?

The folks at Sell! Sell! have a series of posts about great writing. They asked respected advertising leaders their opinions and ended up with a great collection, such as the fascinating ad from Richard Cook with his name spelled out in the copy.

I liked this one from The Economist...

 

These posts prompted a look back through the ad studio, particularly among print posts. I was searching for other prominent, great writing that I've found recently.

Like this from SwissLife...

And this from Puma...

And then, well, I had nothing else for a post like this.

The ad studio pulls the great work featured throughout the industry trades, industry blogs and ad sites. And over the last two years the majority of ads featured have been design-forward. They contain good writing, but it's the design and imagery that are crafted to stop the audience. 

Writing, it seems, is coming in second place an unbalanced amount of times.

"But people don't like to read today," some say.

I bet you liked that Economist ad.