Law & Business

Law & Business

By Anthony M. Verna III, Esq.BusinessNewsBusiness News
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Law & Business episodes

  • Episode 10 – Social Media and Legal Issues

    Oz Sultan joins the “Law & Business” podcast to speak with Anthony Verna about social media and legal issues.

    Oz Sultan

    How do businesses use social media?  What is the changing face of social media?  How do business interact with customers and potential customers in social media?  What are the legal issues that revolve around social media in today’s world?

    Here is a lightly-edited transcript of the podcast:

    Anthony:

    Welcome to the Law & Business Podcast.

    Oz Sultan:

    Thank you.

    Anthony:

    I’m, I’m here with Oz. I will let you plug away.

    Oz:

    Sure. I am Oz Sultan, I am a digital media and strategy consultant that does three things.

    We build strategy for startups and mid-tier to large brands.

    We put together exciting social media programs like what we’ve done for Xbox and The Economist and recently we’re launching an analytics dashboard, which I’ll probably be talking about more on the next few weeks.

    If you have big data problems, I have a solution that makes them simple and easy to present to your executives. And we all have big data problems.

    Anthony:

    Exactly.

    Oz:

    I’m glad we’re putting this together. So Phil, so we’re on periscope. If you’re watching live and if you’re listening then it’s the podcast and it’s not locked.

    It’s also because periscope records and you can go back and watch this later at your leisure.

    Anthony:

    So welcome. Welcome to the Home Office.

    All right, so social media. I think a lot of people thought, think of social media as Facebook and Linkedin and maybe Twitter. I mean we see Twitter as social media, but I think a lot of people are locked into that.

    Today we’re seeing Instagram obviously pop up. Pinterest and Instagram being very different ways of sharing photos. Right. And I mean obviously other social media and, Yik Yak coming around now that Periscope is here and really know your periscope is used often.

    So, how has social media change happening? Let’s start there. How has social media changed?

    Oz:

    I think we can look at and look at kind of two things. So social used to be conversational, going back to 08, it was conversational mediums for which you can find other people talking to other people. Then it became brand-building across conversational mediums. I’m the next Senate into Facebook with Facebook ads becoming, , brand platforms. Now what we have is brandy commerce on Facebook through Shopify. Nice plug for at Alberton’s there. A variety of other mediums and kind of bringing into this foray. We saw the popularity mere cat itself by this year. We’re also seeing Periscope a couple of days later just launching. I think what you’re looking at is you’re looking at the same shifts and social that you saw in radio and television maybe about 60 years ago. So all of a sudden, when radio came out, people were like, no television.

    Anthony:

    Wow.

    Oz:

    And, and now what you have is you have brand adoption problems, right? Because things are shifting. So we have, we’ve shifted from a conversation economy to a platform economy with Linkedin and Facebook and like, and now we’re, we’re shifting to a video economy. There’s also a secondary conversation economy coming with things like Twitch with their acquisition of Justintelevision as well as looking at all of the associated gaming plays that are now coming into the foray.

    Anthony:

    A couple of a couple of thoughts come, come to mind.

    One is that with my clientele and, and for those of you who don’t remember my, my law focus is intellectual property and Advertising Law.

    We met at an apparel and fashion event.  I always think of that as intellectual property for the fashion rather than fashion law. Like to me that there’s no such thing as fashion law. But anyway, anyway, I’m digressing: the television show, these things, they have fashion. Gotcha. But one for my clientele, they’re not really seeing a return of things like Facebook ads or even having a Facebook page. They’re not really seeing a return on their time investment. And two, you mentioned gamification. I don’t want to sit here and say that gamification is feeling passe, but there’s a part of me that’s feeling as if gamification is feeling passe. So, I’ll take your thoughts on, on those two points.

    Oz:

    If you were building a brand and you need to look at returns, you have to look at it from the perspective of are we building this brand for visibility? Are we building this brand for lead generation or are we doing both and trying to drive sales? If it’s visibility, you use all of the usual suspects, you use Facebook, you use Twitter, you use Linkedin maybe inside of groups to kind of push up perspective, right? Instagram really becomes sort of the tastemaking of the Internet, what you are and it gives people a sort of a flavor and feel.

    It shows what the product can, can be. , with Instagram is great cause you can show what the product is, you can show how to use it, you can show exactly how it’s made. You can make people, if it’s made in a way that feels good and we can define that however you want to define it.

    You can show how it’s made and make the consumers feel good about buying the product as well. There are a lot of things that that can be done from an advertising standpoint on, on, on Instagram.

    Anthony:

    We’ll then that ties in the Pinterest.

    Oz:

    So Pinterest and Instagram have become one of the major harbingers of: You can drive e-commerce, you can drive sales. There’s also, I think, a misunderstanding because there’s levels inside of advertising. So if you’re a small and medium size business who’s spending less than a thousand dollars a month in any of the, adwords, Facebook ads, Instagram ads, Twitter ads, sponsored tweets, that sort of thing, you may not see a lot of yield. And I think what you need to figure out is where is your audience and how do you best get to the audience with that plus content plus the content you’ve developed and maybe even sponsored content if you’re a mid-sized company.

    Facebook ads really sort of work combined with an advert strategy combined with an outbound strategy for your digital advertising. And if you’re a much larger brand, take a, take a car brand like Chevy or something like that, you have variated segments of spend that are then broken across multiple spenders or agencies, and you want to tie that information back together.

    So, to that point I think of the problem is emblematic of what’s going on in the industry right now because there’s just too much. And bringing that back, maybe giving more analytics capability, dashboarding, something like that helps. But at the end of the day, I think it’s really kind of having a cohesive strategy. Now to the, the second piece that you were talking about, which was: Inside of this large shifting world that we’re in, what do you do? I think it’s kind of like, how podcasts became de rigueur, four months ago, all of a sudden “Serial” came out and serial is huge.

    Anthony:

    Serial’s huge. I would say Freakonomics. The Freakonomics podcasts has been around like, what, three years now at least?

    Oz:

    And he has amazing content.

    But, a lot of traditional radio talk shows, put a podcast out, I mean it’s basically a recording of that day show. But you can listen on demand. I mean, you can listen on demand. I mean that seems to be the real key now. But yes, podcasts have become required because people are tuning in whether it’s something new or it’s something traditional now sent on a podcast.

    Anthony:

    Right. So, I mean I think the, the, the challenge there is, okay, you are a brand on any one of those levels, small, medium, and large. What do you do? How do you engage?

    Oz:

    I think a lot of it’s really going back to how the industry was, , built in 2008 you had marketers that were institutionalized, like PR firms, marketing firms, big marketing houses, that sort of stuff. , publicists, everyone knows sure. Owns half of the industry; what you’re getting now is specialized agencies. But I think it really kinda comes down to finding folks inside of your conversational space or maybe inside of your influencer space that actually are doing this. And, like what we’re doing today with Periscope, it is barely a month old and this is our first periscope. And so we are, we’re testing the medium. But I think you, you can’t be afraid to test the medium and you can’t be afraid to dip your toes in the chart and look, if you make a mistake, as long as it’s not something egregious, kind of like American Airlines did with the new lady photo.

    Anthony:

    We don’t need to go into that.

    Oz:

    Yeah. Some of the more reason things like -Edmonds with not guilty verdict. The Casey Anthony Verdict, like at least your social media person can go and look at what the Frickin Hashtag, , you can’t say, we feel not guilty about you eating our tasty cakes.

    People were like, you do know that’s about someone who potentially allegedly killed your child?

    Anthony:

    I want to go back to an earlier point that you made and that is if, if your business is pushing a brand out, because that really goes to the heart of what our law practices in terms of protecting trademarks. But more than that, it’s during the due diligence because I’m finding a lot of smaller businesses aren’t necessarily doing the due diligence. They just want to push things out and damn the consequences. And for a lot of them they’re finding out that they’re getting, they’re finding out that that trademark law doesn’t work the way that they think it does so that they’re pushing out brands that might be similar to a bigger company and their goods and services might be similar and they’re getting cease and desist letters and they’re getting sued and they, they sit there and they say, I don’t necessarily know how it happened. On the same token, it’s really about that due diligence and for our philosophy, the due diligence is king and it seeing before you start pushing things out, it’s about finding what else is out there, what’s in the universe of the proposed trademark or brand name and see who could potentially sue you. Because, we don’t want a small business to be the victim of a suit. We want a small business not to be a defendant, but to actually grow.

    Oz:

    Right. And I think that that speaks to a lot of laziness. I think on the part of you, it’s like: look, if you are thinking that you can dip your toes in and you’re just, you’re not necessarily doing any kind of research. I mean, this is not complicated stuff. Okay. You can go to Twitter, there’s hundred different trend tools out there. You could use something like hootsuite and you can just go in and you’ve actually set reports to look at these things. And what you should be doing is to not look at the ground, but understand the ground so it’s not shifting beneath your feet. The other thing to look at too is the concept of co-option, right? So even going back to like my space is having a conversation with this with a colleague who’s a new director of innovation yesterday, and I think one of the things is that, brands didn’t know what to do way back when all of a sudden people were co-opting their brand and like putting Adidas logos all over their myspace.

    We haven’t necessarily seen this in the translation to Facebook, but what we have seen is people using brands, logos, brands, identities, excuse me, in ways that the brand might not want but will shark. But the thing is on the brand side, they have to think about what is that doing at the end of the day to drive popularity and engagement for that brand. And sometimes you just don’t want to do anything on the opposite side. To your point, if you’re a smaller brand and you might be encroaching on a larger brand, do a little bit of research. I mean run a run a couple of queries. If you’re going to Google a recipe, it’s not hard enough to, to Google, ,  it to see if there’s some competitors out there who are larger than you with more money.

    Anthony:

    And, and for those of you on periscope, I’m holding up this big gigantic thick book. How for the podcast listeners, how thick is this book? Cause it’s about two inches – it is 601 pages. This is a trademark search report from Thomson Reuters. And we ordered these for every single new trademark that a client gives us. And it gives us the data of what’s been filed in the patent and trademark office. What’s actual, we actually get a Google search. So what’s used there? We get state trademarks, state corporate names. I mean this sucker is big and that’s a part of not being lazy.

    Oz:

    Well I think that that’s another thing to kind of keep in mind. He just look at, look at, Oh yeah, you can’t see them. So just keeping in mind, this is for you when you’re kind of creating a brand. So not saying that you have to do this kind of a thing, right, but go to the fricking s PTO, go to go to a couple of these sites and do your research, do your due diligence before you, no off half cocked and find out, , I know it’s a cease and desist or, or even worse, you end up looking like a clown social media. Because this is the era where we are not tarring and feathering you physically. It’s happening metaphorically. And that doesn’t go away from this period.

    Anthony:

    By the way, I am not saying you need to get one of those reports, but that’s my philosophy of a new brand, make sure you do a trademark search.

    Can you give examples of, of brands being tarred and feathered by either the choice of a new brand name for a new product that, that accompany might have or for even the choice of, of a poor hashtag on Twitter because, because I’ve talked often about how hashtags on Twitter are like trademarks when brands use them because they’re advertising slogans at that point.

    Oz:

    Well the first one that kinda comes to mind, which is very topical today is the Apple IWatch or the Apple Watch, so to speak. Apple IWatch, Apple will not be, well first of all, they weren’t allowed to use IWatch because this trademark was registered in Switzerland – filed, I think, 20 years ago. Secondarily Apple Watch, Apple will not be able to sell their watch in Switzerland until the end of December of this year because there is an existing trademark in Switzerland that expires, I think it’s December 25th for Apple Watch.

    Anthony:

    I didn’t know that. Yeah. So did they make a deal with, with the owners?

    Oz:

    If you were in Switzerland as, I have no idea if any reviewers are going down to Italy. There’s this lovely country called Germany. So then you call friends. And then get yourself an Apple Watch.

    Anthony:

    I know you can, you can drive through Lichtenstein.

    Oz:

    No, that’s Oculus.

    Anthony:

    We’re being a little silly, but that’s okay.

    What examples of, can I say “bad hashtag”? – are there?

    Oz:

    What you want to avoid is you want to do, if you’re using a Hashtag for a campaign, you want to make sure that it’s not co-opting, say, a culture co-opting or religion, things like that.

    There’s campaign right now. I would look up the Hashtag right now, but my phone is recording. I think it’s not my Hashtag, not my culture, which is kind of an anti-appropriation of the use of BMDS or the Hindu religious doc by attendees of Coachella.

    So it’s, in fact, a very postmodern appropriation of culture, which, which is being chastised there. And we, we, we’ve seen this with black face and a lot of other things going on recently, in of really bad hashtags, that are culturally or politically insensitive or just the absolutely useless.

    I actually think I have to go with much longer hashtags that your company doesn’t get because they don’t understand the medium. And, to that end, Game of Thrones.

    With GOT, and I actually could be a good segue for, Game of Thrones, but some of the, some of the hashtags around Ferguson have gotten a lot of views, and a lot of folks in hot water.

    Similarly, anything that has to do with political issues, who are going back to the Trayvon shooting. There were a lot of hashtags there as well that oddly: it’s, if you don’t know what you’re doing, you don’t know what you’re talking about and you don’t understand the culture has changed.

    68 million millennials in this country and they are driving conversation culture online. This is scaring marketers in a way. I would just say, look before you leap.

    I think that’s what a lot of folks do. They go, “Hey, this is a great idea. Let’s do it. They don’t look.”

    Anthony:

    Yesterday the Cleveland Browns released new uniforms for the next seven seasons and their Hashtag with that was “we bark together” because the fans are the dog pound. So, how bad is that?

    Oz:

    Bad.

    Anthony:

    Said the Steelers fan here sitting next six to me.

    Oz:

    Are you going to say this? Not just that I’m a Steelers fan. It’s born and raised in Pittsburgh, and then being an expatriot in New York, as I like to call it.

    But, we paid tax for that team for like 15 years and people will live in Pittsburgh, are still paying the Steelers tax.

    You may not know it, but that’s the sales tax raised about a percent, but a decade or two ago just to pay for those new stadiums or enjoying my stadium.

    So, but yeah, that’s just a horrible hat. That’s a horrible Hashtag. I mean that, that’s almost as bad as the Patriots Hashtag and campaign that got co-opted, and the other thing too is that with not just hashtags, but any campaign that you’re running,

    For example, Doritos had done a flavor campaign that they had to drop in or they had to refactor because 4chan took it over.

    I think one of the flavors that came to like the number one or two flavor was Hitler did nothing wrong. So, one of the things that you have to kind of keep in mind is if you’re ready to do open ended marketing that lets anybody and everybody kind of play in the game, there are going to be people who don’t play nicely.

    4chan does not play nice on the reddit communities and can get especially vociferous about things if you piss them off.

    And these may be things that you and your brand are not necessarily looking at.

    Anthony:

    What are the other things?

    Oz:

    Got a case in point: Taylor Swift fans out there.

    Taylor Swift had run a campaign that was also hijacked by 4chan where she said she would play any high school. So 4chan mobilizes their troops and the winning school was a school for the deaf.

    Anthony:

    So you, see with this is this is the wild west.

    Oz:

    Know your brand, know your audience, but then also know that like if you do these open-ended things or if you don’t do your research, the stupidity can happen. And it can really affect you, and people won’t stop talking about it for a while.

    Anthony:

    I’d also say to make sure that you understand the terms of use of whatever network.

    Oz:

    Why don’t you talk about terms of use in terms of conditions?

    Anthony:

    Well, yeah, sure, sure. And I’ll also add in there state laws of promotions as well because it all comes together in, in one package of, of advertising and promotion. You need to make sure that you understand what you’re allowed to collect from, from consumers or potential consumers, what you’re allowed to give away. And of course, tax issues as well, although I’m not a tax attorney, but for creating a promotion, you need to make sure that there’s always an alternative means of entry. If it’s, if we’re dealing with a sweepstakes, you need to make sure that it’s not going to be, forming a contract. There has to not be consideration in there.

    And if somebody is filling out a web form for a minute or two or somebody who’s just putting up a Hashtag, I mean that’s not going to be considered consideration because it’s a little bit of time. But the a business should think of promotions as good things because despite the regulations, you’re collecting usernames, you’re collecting names, sometimes email addresses, sometimes phone numbers, , sometimes, postal addresses so that you can, you can keep hitting your consumers time and time again over various media. So, but there are regulations and every state has those regulations and terms of use for all show know maybe a the terms you used and then the, of course the impact of say e-commerce laws from California. Sure. A couple things on terms of use, you have to make sure that your promotion follows the terms of use of the medium.

    And Facebook would be one medium. Instagram would be another medium. Twitter, it’d be another medium. They are totally different in how you treat the promotion is going to be different as well. For example, in order to neutralize any favoritism and which is a big state law issue, it’s not really favoritism, but to make sure everybody has the same number of entries in a promotion or in a sweepstakes. Facebook says if you are treating a like as either a contest entry or a promotion giveaway, you have to treat every single like exactly the same. So in other words, you can’t give your early likers for lack of a better word, preferential treatment unless the promotion ends of course. But you also can’t give those who already liked your page less treatment when you start a new promotion.

    So it, it’s a very balanced way of saying, of treating that particular, , business wet webpage. So, so that’s something that or Facebook profile that’s, that’s something that every business needs to think about. So every single web company has, our social media company has a different way of doing that, the whole data retention side. So California passed a law about 15 years ago that basically says like, for example, let’s say that you sign up for something, but it also includes a, a trial, right. Which a lot of stuff’s happening.

    Oz:

    I mean, I tried to sign up for some trial software for 15 days the other day and , I forgot to cancel it and instead of sending me something for like x amount of month, they sent me a bill for 12 months for 600 bucks. And so I had to email their customer service and say, cancel this. Nothing in the ramifications of this if you’re running a contest or promotion where people are signing up with credit cards. Right. Okay. So the California online privacy protection act?

    Anthony:

    Basically says that if you were going to have collected credit card information stored in a database, it has to be encrypted. If it’s not encrypted, they and some, when something happens, and I mean, look, look at Target last year…

    Oz:

    Well, but that’s because of the supply chain issues.

    Anthony:

    Target, target bought like five different brands in Canada and couldn’t combine the five different brands. They found that a lot of the consumers really had good feelings towards the old companies. I mean, it’s a retail store and they didn’t really target properly. And so, and then Target had the supply chain issues, surprise! Canada’s a different country with a different culture in a different way of doing things. I don’t know why they were surprised about that. So, so when you start adding up all of their particular from the brand problem, from the supply chain problem to the data problems, to the data problems, add everything up in a big, in a big chunk and it wound up really being a failure..

    Oz:

    One of the things that’s also considered too is: let’s say the consider a target, the Kellogg, the Kaloko thing, they haven’t been prosecuted yet, but what you do have is you have all the banks saying that they’re going to file civil lawsuits against target because really the culpability is on target. So, the company is now in question four, are the insurers covering this? Is target coming in to take a hit? Will there be a massive stock fall off? , and, and all of these things are being tried in the court of social media. Yeah,

    Anthony:

    It’s always going to be in the court of social media because that’s how people interact today. Oz, thank you for joining me in this episode of the Law & Business Podcast.

    Oz:

    Thank you. Cheers.

    28 min
  • Episode 11 – Film, Entrepreneurship, Intellectual Property Issues
    Anthony Verna and Daron Jenkins talk about film, entrepreneurship and creating a business, and intellectual property issues.
    Topics included:

    * Dreaming without money
    * Business plans
    * Originality
    * Expressions of ideas/Copyright law
    * Protection of expressions of ideas
    * Importance of contracts in guiding relationships in business
    * Work-for-hire agreements
    * The importance of doing due diligence
    * Music copyright litigation issues
    * Film copyright litigation issues

     
    1 hr 4 min
  • Episode 10 – Social Media and Legal Issues
    Oz Sultan joins the “Law & Business” podcast to speak with Anthony Verna about social media and legal issues.
    How do businesses use social media?  What is the changing face of social media?  How do business interact with customers and potential customers in social media?  What are the legal issues that revolve around social media in today’s world?
    28 min
  • Episode 9: Three Ways in Which Business Hurt Themselves in Online Marketing

    Episode 9: Three Ways in Which Business Hurt Themselves in Online Marketing

    In this episode, I speak with Darcy Knapp, who is an Search Engine Optimization Expert and consultant, about the issues that businesses have in marketing themselves online, especially in search engine optimization.

    One issue that we touch on is using competitor’s trademarks for metadata, which is a bad idea.  From a practical standpoint, Darcy points out the difficulty in lowering online marketing prices if a business uses competitors’ trademarks.  From a legal standpoint, the issue is that using competitors’ trademarks can lead to an infringement lawsuit.

    Here is a lightly-edited transcript of the episode:

    Intro:

    It’s the Law and Business podcast hosted by Anthony Verna. We tackle the hard issues where law and business intersect to help you understand your business’ legal obligations better. Anthony’s law practice is focused on trademark, copyright, other intellectual property and advertising and promotion law. You can contact him at [email protected] and at 914-908-6757. And now, the Law and Business podcast.

    Anthony Verna:

    Welcome to the Law and Business podcast. I’m Anthony Verna. I am here with Darcy Knapp. How are you doing, Darcy?

    Darcy Knapp:

    Doing fabulous, Anthony. Glad to be here.

    Anthony Verna:

    Fantastic. Good. Well thank you for calling in. And how can everybody find you? Let’s plug you first.

    Darcy Knapp:

    Just Google me. I’m everywhere.

    Anthony Verna:

    Yeah.

    Darcy Knapp:

    Darcy Knapp –  K N A P P You’ll find one of my various iterations out there. No problem.

    Anthony Verna:

    Fantastic. Darcy-

    Darcy Knapp:

    If they want to call me, if I’m on the phone, like right now, you’re just gonna get my service, so  keep trying. You’ll get me.

    Anthony Verna:

    Darcy, you’re an SEO expert for lack of a shorter phrase.

    Darcy Knapp:

    That’s pretty short.

    Anthony Verna:

    Yeah. Well, exactly.

    Darcy Knapp:

    Yeah, a search engine optimization, online marketing, everything from web design through optimization. How to get your business found. We can make it bigger, better, faster, stronger.

    Anthony Verna:

    So let’s start here. Let’s start with a couple mistakes that businesses generally make in either getting a website up or doing online marketing. How does that sound?

    Darcy Knapp: I can give you the biggest mistake.

    Anthony Verna:

    Go ahead. Let’s start there.

    Darcy Knapp:

    People start with a concept. They named their product. They go through all of their work and they never checked to see if a domain name is available.

    Anthony Verna:

    All right.

    Darcy Knapp:

    I can tell you their answer, as well. I put abc.com in the search bar and it didn’t come. Nothing came up, so I assumed it was available. That’s the biggest mistake. It’s the assumption of the name you want is available just because there was no website on it.

    Anthony Verna:

    Absolutely, yeah. Going to a domain name registrar, they all have a little search box and if you type it in and it’s taken, then it’s taken. And if you type in whatever domain name your dream is and it’s available, then buy it. Exactly. But you know, we’ve got a lot of new extensions coming out, a lot of new top-level domains coming out.
    Darcy Knapp:
    The only problem you have with a new top level domains, yes, they’re fabulous. But what you have to deal with is if your audience is 35 plus (the target audience for your business), unless you’re targeting college kids, you’re targeting the newly married, the homeowners, the accumulators, we all have embedded muscle memory. We type in the business name and our hands automatically type .com enter [bark! Bark!] Sorry, that’s my four-legged office assistant. She’s now outside. So, where did she bark?

    Anthony Verna:

    Oh, don’t worry. Just keep going.

    Darcy Knapp:

    Okay. So, if your target audience is in the accumulating stage of their life, even in the downsizing stages, we all have embedded muscle memory. We have been trained since the Internet first came out to type what we were looking for.com and then our hand automatically clicks enter. You’ve got 20 years before the kids of today become consumers and we’ll be typing .net., .biz,.Anything under the sun.
    Anthony Verna:
    .auto, .NYC,

    Darcy Knapp:

    .Guru, .web. Yeah, that’s not anything but the problem is the accumulators of today, the business people you’re trying to target today, we’ve all been trained to type .com enter. You don’t want the .net. You don’t want the .info. You want the .com. As your business grows and expands, you can look at other extensions for branding. And if you’re going to get a trademark, no one else is going to buy your trademark dot anything. But in a perfect world today, to sell to consumers today, you need the .com. If it means it means paying $2,000 to get the .com versus the .net, you need the.com.

    Anthony Verna:

    And that does relate to what a lot of businesses miss from a legal standpoint. Take choosing a trademark and whether that trademark is the business name or a line of a product, I find that doing the due diligence is a difficult sell to be honest with you. And that a lot of business owners would rather just put their head down and try to do the business. And if there’s trouble later, we’ll then they’ll deal with the trouble down the road rather than…

    Darcy Knapp:

    And they ended up paying $10,000 to get that .com or $1 million to get that .com once they’ve made their brand success because they didn’t do that first.

    Anthony Verna:

    Exactly. I think there is not just a cheapness in doing the due diligence, whether it’s a domain name, whether it’s a trademark search, ahead of time. I just think it’s proper business to make sure that the business can actually be branded without any legal issues down the road.

    Darcy Knapp:

    Oh definitely. Yes. If what you want for a .com is already owned by someone and there are direct competitors, you’ve got a huge problem.

    Anthony Verna:

    Exactly.

    Darcy Knapp:

    You’re going to invest all this time, effort, and energy, and money into getting your trademark and because that domain has been owned before your trademark came into existence, you can’t get it. That competitor has it, they own it, they’re working with it. The public’s gonna find that competitor, no matter how well you brand, people go to the search engine, type the brand name in the box and hit enter. They don’t necessarily type .com, .net or dot.anything. If your ABC business, and that’s what I’m typing, I’m going to get the strongest domain name first, which today is the .com.

    Anthony Verna:

    Let’s talk about, since you mentioned typing a brand name or something similar business name into Google. A lot of businesses, I’m sure, make mistakes trying to do SEO themselves, trying to do it a little cheaply. Obviously, you and I don’t recommend doing anything on your own, you know, hiring an expert.

    Darcy Knapp:

    If someone’s offering to get you on page one and giving you a guarantee, you just walk away because they’re going to have you on page one for a term, a key phrase that’s seven or eight words long that no one ever searches for. So, you end up on page one of the page nobody sees. There’s no ROI. If you can’t get ROI out of the proposition, don’t spend the money.

    Anthony Verna:

    And when you say that companies like that look to put a seven word phrase in, let me look at the converse of that. Are you saying that companies should be looking at one- to three-word phrases that relate to their business?

    Darcy Knapp: (

    Yeah, generally three, four, five words.

    Anthony Verna:

    Okay.

    Darcy Knapp:

    There are very few one- or two-word phrases that a company today is ever going to rank for only because of the big box stores. You’re going to get beat by Wikipedia, Walmart, and YouTube. If you’re looking for a one word phrase and you don’t own that one word.com, you’re never going to rank for it.

    Don’t cheat. Don’t chase the windmills. That’s like the second biggest mistake I see is people thinking they can rank for something that they will never rank for and in most cases, you really don’t want that two-word phrase. You want that two-word phrase plus a modifier, which is going to be your geography.

    Anthony Verna:

    Can you give an example?

    Darcy Knapp:

    Sure. So, if you’re the personal injury lawyer, we talked to them all the time. You don’t want to rank for personal injury lawyer, you never will. So, it’s not even an issue. You want to rank for personal injury accident attorney  New York because you’re only licensed as an attorney in New York. So, you’re looking for someone that’s searching for that two, three, four, five-word string and then adding the geography. And if 90% of your clientele is locally based and you’re in Middletown, New York, you should be going after a personal injury lawyer in Middletown, New York. Don’t worry about that it’s six words long. Someone in your market area looking for a personal injury lawyer, Google will pick up your IP address and match their zip code to yours and you’re going to get served. And that’s someone who you can get into your office and close business on as opposed to the guy in Ohio that you can’t legally take the case and you can’t exactly get them in your office. He’s a thousand miles away. It’s about working smart.

    Anthony Verna:

    And what kind of metadata, I know I’m throwing out a word that we probably should define.. So, what kind of metadata do businesses need to think about?

    Darcy Knapp:

    Let’s define metadata. Metadata is information that goes behind your site that basically gives the heads up to the search engine what you want to rank for. What does not belong in your metadata? Punctuation. There shouldn’t be any punctuation in your metadata. It’s not about putting sentences together on a title tag. It’s not about using an ampersand or a bracket, something that could be misconstrued as html because Google’s just going to think you’re trying to put code into a metadata and ignore you. It should be about your core business, your core competency. And it should never contain a trademark that’s not yours or a business name that’s not your business. You’re not going to conquest and get Google to believe you’re a Ford dealer, if you’re a Chevy dealer. Putting the word forward in your metadata is not going to get you ranked. It’s not going to happen.

    Anthony Verna:

    And, and in fact, if there’s a direct competitor relationship between two businesses and one is putting metadata of the competitor in there. As you said, there’s…

    Darcy Knapp:

    You can cheat and copy your competitors metadata, but if you put their name in your meta, all you’re doing is promoting them and you’re going to end up with a letter from their attorney with a cease and desist for putting their name in your meta.

    Anthony Verna:

    Absolutely. Now, there are times, by the way, I will say that there are times when that may be acceptable just because there are trademarks like Amazon, there’s the Amazon River. So, if for some strange reason you have a, I won’t say strange reason, but if you have a travel website and you’re doing trips to the Amazon, okay, that does sound a little strange to me.

    Darcy Knapp:

    But Google will make an inference. Google is a logic engine. If you’re talking about the Amazon river, Google knows you’re not talking about Amazon, the shopping site. Yeah. Google is smart to that degree. This is the same way Google understands that certain words have the same meaning as other words, a book, a magazine. It’s all literature. So, it’s not gonna stop you from getting served if your meta says you sell comic books and someone’s looking for an illustrated book. It’s not gonna stop you from getting served, but you really want to choose the right phrases that have the most search when you write your meta. And you also want to remember the average American has an eighth-grade education. Don’t use big words. Meta should be nice and simple. If you’re the attorney, don’t use the word attorney. Use the word lawyer. People can spell it.

    Anthony Verna:

    Just one other thought on trademarks is that sometimes there are permissible uses in metadata. And there’s a bizarre case out there where a former Playboy playmate, and I have a feeling no former Playboy playmates are listening to us speak right now, but…
    Darcy Knapp:
    They’re all too busy dating basketball players.

    Anthony Verna:

    There’s a case where a former Playboy playmate used of course, Playboy and playmate in the meta tag and Playboy’s attorneys, of course, filed suit. And what the court said is that because there was a designation given to this particular person, while it’s a registered trademark, it’s what we call nominative views, you know, the product or service couldn’t be readily identified without that trademark. And only so much the mark needed to be used as is reasonably necessary just to make the identification and the, user. So, in other words, the user of the website creating the metadata does nothing to suggest sponsorship or endorsement by the trademark holder. And that was completely acceptable. So it’s a very limited exception.
    Darcy Knapp:
    And that’s why you want expert help when you build your meta so you don’t end up talking to somebody who’s a lawyer.

    That’s all. I mean, common sense that the best thing you can do is look at that title tag. You get eight to ten words. It’s basically three phrases and the phrases that you put out are what you expect people would be using a search engine to find you with.

    Anthony Verna:

    No, I think that that’s excellent advice. Can I move to a big pet peeve of mine that I actually just saw yesterday? I saw a business and, on its window, it had a domain name and then under it, it had its email address that went to Yahoo and not the domain name.

    Darcy Knapp::

    Okay. A couple of huge issues. When we look at email, number one, your customers, your business associates, your networking partners, everybody’s going to have that address in their address book and your branding Yahoo or your branding AOL or Hotmail or any other provider. You want to be branding your business. How many emails do you get a day? I probably get 300. The last thing I want is to be for people to be sending the email and typing, not my business name, but aol.com. It’s all about creating that top of mind awareness. And to do that you need to brand. Then we get into the next level. Providers like Yahoo and AOL that block so much mail, in particular website forms. If you’ve got a contact us form on your website and you’re using an AOL account, you’re probably never getting your forms, not to mention the fact that looks terrible on a business card and if anything, it looks more unprofessional. Do you want to be a [email protected] or do you want to be [email protected] and then we can get into email spammers. If you have an email address like [email protected] and that’s what you’re using, you’re going to cut down on your junk mail tremendously because most of the email systems can’t send the Info app.

    Anthony Verna:

    By the way, I just pulled up the business that I passed yesterday and obviously on their website it has the yahoo.com email address and there’s a form on it.

    Darcy Knapp::

    They’re never getting them. I don’t care if you change that form, send a plain text dependent IP address. It doesn’t matter. They’re never getting that form. And again, when you’re going to go do business with someone and you’re going to hire a professional, that email address can actually make or break whether you get the job because using a branded [email protected] is very professional. All the other alternatives are not.

    Anthony Verna:

    Is there a privacy concern as well with a lot of these services? Gmail really was the first one to put advertising in your inbox web interface. Is there a privacy concern as well?

    Darcy Knapp:

    More of a security concern? You’ve got a couple of issues. You’ve got email archiving. Every email is sent from your business. If it’s sent from a branded email and you have control and you have an archive, you have a record. An employee sends an email from their personal Hotmail to a client saying, oh yeah, we can do that for $10. That’s a contract. And the client can then print that email, back a zero out, make it $1. And if that employee doesn’t work for you anymore, you have no recourse. You now have to honor a contract cause you have no control. You have no backup. You have no archive of that email. You don’t know what’s been sent out. You don’t know if your employees are soliciting for other businesses, talking to your competitors, you know nothing. Because you’re letting everybody use their own personal private emails.

    Anthony Verna:

    Sure. No, I understand that  completely.

    Darcy Knapp:

    I archive every single email I ever sent  as a business owner. You have to, and then if you’re in the legal or medical profession you have regulations.

    Anthony Verna:

    Sure. I mean, as an attorney, I know that New York ethics rules have allowed Gmail and the reasoning was that a person is not the one looking at the email to insert advertising. It’s all done automatically. So, while every single email is scanned by Google, it’s only scanned for keywords to insert proper advertising. And I don’t know about you. I think that is going to change at some point very quickly once judges realize that, just because it’s not a person right now doesn’t mean it can’t be a person at Google. Very quickly.

    Darcy Knapp:

    In one step further, how many times do you hear that an email provider has been hacked and you get an alert saying you have to change your password? My Hotmail gets hacked on average every 45 days. I have to go in and change my password. I know what’s been hacked because it starts sending out links to my address book, right? And my sister, who’s in my address book is very proactive and she’ll say, Hey, Darcy, you’ve been hacked again. This is what your, your Hotmail sent me. So understand if you’re using one of those providers and it gets hacked and you start sending out malware, broken links, spam, you’re going to end up getting a phone call from the FCC saying you’re violating the Anti-Spam Act and it’s nothing you ever did. It’s a virus in your mailbox. But you need control. You’re the business owner. You need control. Your employees are using an email. It should be the business’ email. Leads come in. You need to track them. There’s no reason for things to be getting sent to a private email box that belongs to an employee. A business should own everything.

    Anthony Verna:

    I agree completely.

    Darcy Knapp:

    What’s going to stop that employee from selling those leads as they come in and those web forms as they come in to a competitor?

    Anthony Verna:

    Well and I mean that’s just good business practice to begin with to make sure that the employer-employee relationship is set out beforehand. You know, also by a contract as well. So, you know, not just email addresses but everything.

    Darcy Knapp:

    You get a content management system and that building that like to protect with your life but yet you’re not protecting your email. You’re not renewing your domain name 20 years into the future. Your domain name is expiring every year. Proactive. A ten-year domain renewal is about a hundred bucks. You’re crazy not to.  Get branded emails for about $30 a year. You’re crazy not to. Cutting corners won’t save your bottom line when your employees start selling your leads to the competitor.

    Anthony Verna:

    I agree completely on that. Is there… I was going to say, with the control issue, is that because then it can come into the server, sits in outlook and it’s just sitting there at the office?

    Darcy Knapp::

    Well any email that comes in you can track inbound, you can track outbound, you can archive all the sent mail if you have control.

    Speaker 3:

    If you’re letting ten different employees send mail from ten different Gmails and Hotmails you have no control, you don’t know what’s going on in your business. Did that employee send that out a  hundred emails today and do his job or did he send out zero and not work and take a paycheck?

    Anthony Verna:

    And customer relationship management software and I’ve got a client that isn’t set up to work with a Gmail or AOL or Yahoo. It is set up to work with a system that is sitting in the office. Whether it’s a shared server or some kind of cloud-based system. It’s set up for the business’ own email. It’s never set up for an email provider.

    Darcy Knapp:

    Look at when you have an employee. I don’t care if it’s a brand-new employee or someone’s been with you 30 years that has just retired. You’ve got an employee that has correspondence with your customer base. When they leave, if they’re sending emails back and forth from their Hotmail, you’re done. You’ve everyone they’re in contact with because they’re not talking to your email. They’re talking to Joe’s Hotmail and they’re never going to send an email to you at the company.

    Anthony Verna:

    Yeah, I know someone who was recently speaking with a sales rep at a regional beer company for sponsorship for an event. And the salesperson had an AOL email address and the person that I know is like, this is just so unprofessional and how do I even know that this person is speaking for the company as well or work for the company.

    Darcy Knapp:

    And how do you know they have the job They tell you they have. Either they have a branded email. They can be like you need to protect yourself as a business owner. The best way to protect yourself, you have company email that the employees use. If your employees are conducting business on behalf of the company on the road, they should have company cell phones so that when that employee leaves and those phone calls keep coming in, the next salesperson takes over that phone. It’s just about being proactive to retain the business you have because it’s so much less time consuming to maintain your business and to go out and find that new customer.

    Anthony Verna:

    I think that’s very wise advice. I see a lot of businesses getting back to just what is online marketing. I see a lot of businesses with a website that are very home page focused and I find that whenever I search for data, I’m not really landing on home pages anymore.

    Darcy Knapp:

    No, you’re going to land on the page that has the information you’re looking for, which in general may or may not be the home page, but you also have to look at the average website. 90% of traffic on any website is going to start at the home page. Okay? That home page really does need to tell the story, who you are, what you do, where you’re located, all your contact information, and what do you want the customer to do? Do you want them to call you? Fill out a form, buy a product, click and purchase? That home page needs to be the do all-end all because you only have four seconds to make that first impression and most people won’t get past your home page. When we look at searches, those landing pages that you build are what are going to show up in searches when someone’s doing a very specific query Let’s say that you want to find a house painter in Saratoga, New York, you’re going to land on that page, so you’ll have ten different painter sites pop up, but your landing on someone’s page that talks about house painting and Saratoga, and you’re also going to get YouTube videos of funny house painters and people falling off ladders. It’s just the nature of search today.
    So, don’t worry so much about the home page. What you really want and what you really want to worry about and what we see right now as critical for most businesses: what does your mobile site look like? Do you have one? What platform are you on? Is your site a dinosaur, which can be two years old and your website can be a dinosaur. Go get an iPhone, go get an android, and go get a tablet and take a look at your site. 40% of all web traffic today is mobile and tablet based and if you’re trying to deliver that desktop version to a device, you’re going to lose so much traffic.

    Anthony Verna:

    How about responsive websites and just to …

    Darcy Knapp:

    Being responsive is configuring to the device, right? I’m taking it a step backwards before you even worry about responsive and what color does it look like and how big is your logo on the device? Does your website even work on a mobile device? You might have a beautiful website if I’m on a desktop, but when I go to a mobile device, it’s so small I can’t read it no matter how big I try to stretch it with my fingers. It doesn’t work. And what happens is the user that finds you on a mobile device, takes one look at that teeny, tiny website that looks like it’s a postage stamp and walks away. Even if you have the right product, the right service, you’re in the building next door to them, and you have the best price in town. It doesn’t matter if they can’t complete the purchase, if they can’t find your phone number, if they can’t figure out who you are and what you do on that mobile version effectively on that device, you’re just out of luck. And for those of you that don’t have access to every kind of phone, there’s a great little website called mobile test dot m e so it’s mobiletest.me and mobile tests will let you put your website into any device you want, and it will give you a virtual look at how your website will appear to someone on that device.

    Anthony Verna:

    Hey, that’s not a  dot com.

    Darcy Knapp:

    No, it’s not a  dot com. It’s a great toy and you can look at what your site, and it’s not a hundred percent perfect, but it’s pretty good. And you can look at what your site, how is your site going to serve on that tablet or on that handheld and say, “Oh my God, I need work.” .because you don’t really think about it, but when you serve on a mobile device, generally people just want to tap and dial your phone number.If your phone number’s embedded in an image on your website and it looks beautiful and some fancy font. That’s great, but on a mobile device I can’t tap and dial it. I’m hitting my back button. Going to your competitor.

    Anthony Verna:

    I certainly have seen a lot of phone numbers coming up in pictures on websites and I’ve always thought that that was a bad idea, that it should always be text because even if I’m on a desktop, I can at least copy and paste it into another and I can’t copy and paste a picture.

    Darcy Knapp:

    No, no. What your mobile site really needs to be is very simple. Your logo, your phone number, your address so that people can tap and get a map, your email address that they can tap and send you an email. Give them everything at their fingertips and you can make a sale. Give them nothing and you made a hell of a first impression. They’re never coming back.

    Anthony Verna:

    Is there any other tips that you have for it? For a mobile device? I mean for a mobile website.

    Darcy Knapp:

    Depending on what platform you’re on, a lot of them, what we do predominantly are building in WordPress. WordPress gives you all kinds of functionality for mobile and you can have a different menu on your mobile device. So, you might have twenty buttons across the top and forty drop downs. On your mobile device, strip it down to the main pages. Because mobile is not for search, mobile is for the handheld user. You probably only need five or six pages on that mobile site and then have a switch to desktop version. If they really need to get more, they can switch and have your whole desk. That version, I’ll never use the button, but that’s okay. But there’s no sense in having twenty buttons on a mobile site. No one’s going to go that far.

    Anthony Verna:

    So keep it simple.

    Darcy Knapp:

    Keep it simple. Mobile needs to be nice and easy to use. And then some software will let you integrate for tablets differently than mobile. So, when your web developer’s working on your site, they should be looking at your desktop, your mobile, and your tablet version and they should be looking at it in multiple browsers. What you see in Safari is not necessarily what you see in Chrome, which is not necessarily what you’re seeing in Firefox or God help you, Internet Explorer. It’s different in every browser. It’s different in every device. The response was meant that your website configured to devices responsive is a given, but beyond responsive, what does it look like and are you going to engage the user or are you going to turn them off? And the key is to engage that user. Keep them on your website for more than four seconds. Get them to make that buying decision. Get them to fill out a form, get them to tap and dial you whatever in your e-commerce. Get them to click, purchase and checkout.

    Anthony Verna:

    Do you have any thoughts on design then, in general?
    Darcy Knapp:
    A website can be as wild and crazy as you want. It can be as simple as you want. Desktop design, black text on white background is always the easiest to read. If your audience has senior citizens make the font points a little bigger. If you’re targeting kids, you want lots of animation. If you’re gonna use video, put a picture of the video on your homepage, but the player deeper in the site. You’re going to look at traffic. Traffic is predominantly Monday to Saturday, nine to five. It’s at work search. Most people at work can’t run YouTube on their computers. They’re blocked. The employers are blocking Adobe. So, if you have a video on the middle of your homepage or at the top of your homepage, they see a big white square with a big red x. They can’t play it. And when you see a big white square, with a  big red x, you think you’re hitting something that’s gotten malware on that and  you just hit your back button.

    Don’t make it harder to make that first impression and to get that customer. You can put a picture of that video, screenshot off the YouTube video on that front page. They click on the screenshot, it goes to an internal page, the video plays. There’s no reason to have video or audio playing on your home page and if you’re running music, turn it off. What you think is great music is not what everybody else thinks is great music and people at work, that are surfing at work, will get caught if there’s an audio track and they can’t control the sound system on their machine, they’re immediately going to x out of your site.

    Anthony Verna:

    Video seems to be the number one advice for a lot of businesses to put video on the website.

    Darcy Knapp:

    Fabulous. Get video on your site, get it on YouTube, optimize it, get it to rank. YouTube is the number two search engine behind Google. There’s more search on YouTube then there was on Yahoo and Bing put together.
    Anthony Verna:
    So how long should a video be if I’m gonna put video on my business website?

    Darcy Knapp:

    Less than two minutes. Yeah, generally a minute and a half about the tolerance for most people. If you’re going to do a how-to video, it can be, as long as it takes to show someone how to do something, that’s fine. If it’s on an internal page, it’s not gonna matter. If it’s on YouTube and someone seriously wants to know how to knit a sweater and the video takes 45 minutes, they’ll watch it. It’s the biggest dilemma for business today is the loss of employee at work hours to YouTube. That’s why they block YouTube. Sure. But their way to block YouTube is simply block Adobe, which means nothing runs. No Netflix. You’re not watching movies at work, anyway.

    Anthony Verna:

    Well, if you’re watching movies at work, you need a new job, I think.

    Darcy Knapp:

    Well, your employer needs to find you a new job or kick you out the door. But again, you have to look at how people work today, how business works today and work smarter. You know, under forty, they’re not going to read your 40-million-word essay. They will watch your minute and a half video. You have to have the essay there for the search engine. You want the video there for user experience.

    Anthony Verna:

    And if you’re putting video on the website, you need to make sure that everything you have is cleared. And that goes for making the titles, the PR. If you’ve got a production company doing it, you have to make sure that there’s a contract between your business and the production company. If you’re using music, you have to make sure that the copyright is cleared. I will tell you that it’s probably easiest to hire somebody local and make sure that it’s what we call a work for hire. And when a work is made for hire, it belongs to the person or business that’s paying for it. And you know, go get a fifteen second clip. There are plenty of musicians out there who make the fifteen second clips.

    Darcy Knapp:

    There are free audio files out there that you can use. Just make sure what you’re using is either guaranteed free or yeah.

    Anthony Verna:

    Right. Guaranteed.
    Darcy Knapp:
    Or not licensed by someone who’s gonna send you a bill.

    Anthony Verna:

    Exactly.

    Darcy Knapp:

    Yeah. We’re talking about big business mistakes, expensive business mistakes. Number one advice for our businesses managing their own website. Do not let your employees, yourself, your friends, your family. Nobody goes to Google images, looks for an image. They’re looking for a pine tree. Copy, paste and put it into your website.

    Anthony Verna:

    Absolutely.

    Darcy Knapp:

    If that tree image is owned by Getty images, you’re getting a bill for $1,100.

    Anthony Verna:

    I have done my fair share of subtle copyright infringement settlements with Getty images on the other side. A lot of businesses do it and it winds up being a painful process. And while Getty may negotiate, they might negotiate down a hundred bucks. And get found because all people…

    Darcy Knapp:

    Their people are putting their photos everywhere on the web in hopes that you steal one because they make ten times the money sending bills for $1,100 to the people to put a picture on their website without permission, without buying a licensed copy than they make selling a photo for $10. It’s a hell of a business out there right now. And it’s not just Getty images, but don’t steal one of their images. You’re done. You’re going to pay because they might negotiate down to $900 but you’re still going to pay them.

    Anthony Verna:

    Right. It’s a lot easier to hire a photographer for$100 to $200 to $300 to go take a hundred pictures of a pine tree or give a list of the pictures that I’m looking for and make sure that it’s there. Now, if also if you need a person’s image, and of course we’re talking about business websites and you need pictures of people, you have to have those models give their rights away.
    Darcy Knapp:
    Or the other option is just use stock photography and stock photography can be bought at as little as $2 or $3 a picture. Don’t be afraid to use stock images and pay $2 or $3 a photo versus grabbing something off of Google images or Getty images and getting a bill for $1,200.

    Anthony Verna:

    I agree completely. I think that’s why it’s a plus.

    Darcy Knapp:

    I think it’s a very common mistake and usually it happens not because the business is trying to save money, but they just don’t know any different. No one’s ever told them, “Oh by the way, if you steal an image, you’re going to get a bill because you don’t have rights to use that image.”

    Anthony Verna:

    Also, if you’re using an image, and this would be my caveat from seeing clients use stock photography. Stock photography is a wonderful resource, but it’s not the image of the company.

    Darcy Knapp:

    No, it’s not real. Yes. And reality will sell. But if you’re going to do your own videos and you have reality in a video, it’s not going to hurt you if you have stock photography. Better to have stock photography that looks good then pictures you took with your own little, digital camera or your iPhone that look like crap. Oh wait, yes, I agree it’s a trade-off. But if you don’t have the resources to hire the photographer or to take your own pictures, stock images, if it’s gonna cost you $20 to buying a stock images to load your site up, do it. You can replace images over time very easily. And if you never get around to taking real pictures, at least your site looks good. Because if your site looks like crap. People aren’t going to trust you. They’re going to go to your competitor.

    Anthony Verna:

    You’re not going to hear me disagree with that.

    Darcy Knapp:

    It’s all about looking good and in the digital environment and if you don’t like your staff picture because you wore the wrong shirt that day. Yeah, get go, go spend two bucks, buy a stock picture of a guy and a really nice shirt. Take his face out there and people come in looking for him. They won’t know who you are.

    You can secret shop your customers, because they’re looking for the CEO and he’s supposed to look like this, and you can talk to that person all day long and they’ll never know it’s you. Don’t go steal a picture of Brad Pitt off the Internet again, don’t steal pictures that are going to create problem. Yeah, you will pay for that one and don’t put a picture of your dog or your cat up there as your face unless you’re having to be like a veterinarian. That’s another strange thing that I see out there on the web. People will put a placeholder photo in and it’s a picture of an animal. You are not a giraffe. You’re not a walrus. You’re not a zebra. You’re a person. And the picture you put out there on LinkedIn, the picture you use on Facebook, put it on your website. Let people know who you are so, they walk in the front door, you get treated with respect that you deserve.

    If you’re trying to hide from salespeople, use a picture that’s like 10 years old.

    Anthony Verna:
    Darcy, I think that’s wonderful advice and I think you and I probably need to run.

    Darcy Knapp:

    Yes, so we can do this again next time.

    Anthony Verna:

    Wonderful. Thank you so much for calling in.

    Darcy Knapp:

    You got it. Have a great day, Anthony.

    Anthony Verna:

    Thank you. You too. Talk to you soon.

    Darcy Knapp:

    Bye. Bye.

    Anthony Verna:

    Bye.

    39 min
  • Episode 9: Three Ways in Which Business Hurt Themselves in Online Marketing
    Episode 9: Three Ways in Which Business Hurt Themselves in Online Marketing
    In this episode, I speak with Darcy Knapp, who is an Search Engine Optimization Expert and consultant, about the issues that businesses have in marketing themselves online, especially in search engine optimization.
    One issue that we touch on is using competitor’s trademarks for metadata, which is a bad idea.  From a practical standpoint, Darcy points out the difficulty in lowering online marketing prices if a business uses competitors’ trademarks.  From a legal standpoint, the issue is that using competitors’ trademarks can lead to an infringement lawsuit.
    39 min
  • Episode 8: Two Ways in Which Bands are Businesses and Intellectual Property and Contract Mistakes Sink Them

    In Episode 8, I finish the discussion of the copyright infringement case between Roger Dean – famous for his 70s album covers – and James Cameron (and other producers of the movie “Avatar”) with James Cushing of the Law Office of Faye Riva Cohen in Philadelphia, PA.

    Then we talk about two ways in which bands are businesses:

    • Bands need trademark protection for their names
    • Bands need partnership agreements.

      • Here is a lightly-edited transcript of the podcast episode:

      Anthony Verna:

      Welcome to the Law and Business podcast. Once again, we have Jim Cushing. How are you doing, Jim?

      Jim Cushing:

      Greetings everyone and I’m well, thank you

      Anthony Verna:

      Jim, once again, tell everybody how to find you.

      Jim Cushing:

      All right. Uh, Jim Cushing. Uh, but I think, uh, my professionally on Google, you’ll find me as James W. Cushing. My law firm is the law office of Faye Riva Cohen. That’s F as in Frank, A, Y, E R I V as in Victor, A Cohen and my email address is [email protected]. And  (215) 563-7776 is how you reach me. And I keep a blog called judicialsupport.wordpress.com where I talk about law and a smattering of religion and music and some other things.

      Speaker 2:

      All right, so last time you were on, we were talking about a copyright infringement case and it involved, the album designer for I would say your favorite band. Yes.

      Jim Cushing:

      Yes, correct. My favorite band is the progressive rock or a prog rock band, Yes. But he’s also the cover artist for other related bands like Asia and A Gentle Giant. And he’s done other things like architecture and stage designing.

      Anthony Verna:

      So, as we had discussed, he filed a lawsuit against James Cameron and other production companies involved in making Avatar, basically claiming that the design, the mise en scene was taken from a lot of his artwork. And ultimately the federal court threw the case out on a motion to dismiss because the  ability to make that claim that the mise en scene copied his artwork was really not able to be made.

      Jim Cushing:

      Right. I don’t think there’s any doubt that, either consciously or subconsciously, James Cameron had Roger Dean’s paintings in his mind when he made Avatar. They’re very, very similar. Anthony could probably explain it, expanded on it more than the last time we did this, but I don’t think it meets the muster of a copyright infringement or anything like that, but they are very, very similar. And as a Yes man, as a Roger Dean fan, I can tell you from reading all the websites, there is lots of great wailing and gnashing of teeth over this decision. But Roger Dean posted a, I’m a friend of quote unquote on Facebook of Roger Dean… And he posted an update a couple of weeks back about the case and lamenting the fact that he lost and he thinks that James Cameron clearly uses work and et cetera.

      But he had a certain number of days to file an appeal. So, I decided to hold off until writing an update until I saw what had what happened in terms of the appeal. And the today I checked the dockets and discovered that a few weeks back, a couple of weeks back, Roger Dean and James Cameron decided to conclude the case. Roger Dean gave up his right to appeal and that the adverse decision about any sort of about any case against Jim Cameron regarding Avatar and the copyrights. And in exchange for that, James Cameron agreed not to pursue Roger Dean for any attorney’s fees or costs or anything like that. So, the case is now over and completed much to the chagrin of Roger Dean and Yes fans the worldwide about this way, what we believe to be a… I don’t know. I was going to say grave injustice, but I guess according to copyright law it is not.

      Anthony Verna:

      That’s fine. Well, yeah, I mean as we discussed last week, it’s, it’s a matter of… I was kind of surprised that they didn’t really amend the pleadings to discuss how it was… how each element may have been copied. And so therefore they kind of went with a very broad general copyright infringement claim. And the court said, you can’t do that because if there’s a dragon, for example, dragons themselves aren’t works that fonder copyright law, but your expression of a dragon would be, and they never took the pleading to that particular level to be honest with you.

      Jim Cushing:

      Yeah. I don’t know. I never spoke to their attorneys and I I’ve met Roger Dean several times. As I said before, he doesn’t know who I am, but I’ve met him several times at festivals and so on. And, you know, he was reluctant to talk about the case and, and in fact his update on his Facebook page last week said that he acknowledged that he’s been sort of silent on this issue, because of the advice of the both of his lawyers, probably wise. So I don’t really have any insight beyond what the complaint says really.

      Anthony Verna:

      So with the stipulation and he’s not appealing. So, this case is over and dead.

      Jim Cushing:

      Yeah. Hmm. Perhaps on the advice of the podcast we did last time, I don’t know.

      Anthony Verna:

      Well, if he’s listening, Hi there. So, being a, a fan of the bands that you are, they’ve had multiple lineups over the years and certainly what to call a particular band with a particular lineup can be a tricky situation. Certainly I know the Beach Boys have had problems. At one point there was a band called the Beach Boys and a band called The Beach Boys Experience touring. Go ahead and I’m going to let give you the stage again and just tell me a bit about some of these bands that you’re fans of and their lineup changes and maybe some of their name issues.

      Jim Cushing:

      Sure. Well I was thinking more specifically about Yes and Asia because I feel they’ve had some very public legal issues. And I think one of the things that sort of tends towards an issue that like this where with name usage in bands. And this probably sounds obvious, but it’s bands that have a lot of personnel changes, one, and two, I think bands where you have one or two or three people who view themselves as the core of the band. Cause you know, like a band like Jethro tall, probably 30 people have been in that band. But no, hardly anyone thinks they’re more important than Ian Anderson except for maybe Martin Bari. But even he doesn’t when he left recently.

      Anthony Verna:

      Certainly fans of the Red Hot Chili Peppers can talk about the very various lineup changes. I forget the name of the first guitarist. And John Frusciante who was in there for a short time versus whoever is in there right now. I’ve no idea Hillel, was the name of the first guitarist who passed away and the various different stages. But, most people of course see the Red Hot Chili Peppers as Anthony Kiedis and Flea and anybody else seems a little interchangeable as well.

      Jim Cushing:

      Right. So what happened with Yes, and actually with Asia too, I’ll give you a little brief history of each, is that they each had had eras of the band where someone else besides you might think is the prime mover in the band as the driving force. So Yes, actually, Yes, because they’ve been around for 45. It’s actually more than that. 46 years, I guess. Is that they’ve had two brush ups with the law when it comes to the naming issue. Some people might not know that Yes is a 1960s band, had their heyday in the 70s as a progressive rock band. And they more or less broke up after 1980 when they had… I don’t know if it was good or bad, but they had the Buggles, the band who did the ”Video Killed the Radio Star”, started the first video on MTV, right.

      The singer and the keyboards for the Buggles joined Yes. Which is sounds crazy, but that’s actually happened. And in place of John Anderson, a long-time singer and founder and Rick Wakeman, probably their most famous keyboard player.  And as it turns out, the Buggles have the same manager and were a singer, keyboard player duo, and they’re in the same studio and they both had need of the others. So, they joined, and it became Yes. And after that, Yes broke up and were seemingly with nothing. Yes seemed to be gone because Steve Howell, who was in the guitar player was off starting Asia. And John Anderson became a solo artist and Rick Wakeman became divorced and became a solo artist. I mentioned that because he lost a lot of money in divorces in the 80s, and you know, and sort of Chris Squire and Alan White would you believe.

      And it was in recently in the news, they might try to revive this sort of as an archival type thing. But Chris Cornell joined forces with Jimmy Page and in theory, Robert Plant and maybe John Paul Jones, and formed a band called XYZ. At this point, only demos that exist o of Page, White and Squire playing some stuff and all that material has since been used in their respective bands but right. So Yes sort of cease to exist. And by 1982, Squire and White recruited the original keyboard player Tony K from Yes and a this guy called Trevor Rabin from South Africa, to create a  band called Cinema. Which you know, obviously sounded Yes, cause it had three guys and Yes, and this new guy who was a sort of an eighties power chord Journey type guitar player. And the record company said, you know, you guys are good singers, but you really should get a lead singer.

      And they racked their brains. And Chris Squire said, you know, I’ll bring up my friend John Anderson and, John Anderson said this, there’s degrees of great music, I’d like to sing on it. And I think that the consensus was at that point, well if you have Chris Clark, John Anderson, Tony K and Allen White, this is Yes and, and Trevor Rabin being a constant businessman, I don’t think as an artist, I don’t think he liked the idea, but you know, Yes, it’s going to sell better than some unknown band called Cinema. Yeah. And so, it became, Yes, and this is all the while Asia is hitting the top of the chart with “Heat of the Moment” and other sorts of things. And um, and Steve Howe, sitting in Asia said, “Hey, wait a minute. I thought yes, was gone. I specifically remembered this band breaking up.” And but it didn’t. And so, Steve Howe took issue with the fact that Yes is being used as a name and their back catalogs being used. I don’t think he minded the royalties from the back catalog, but he minded they’re using the music and there was a legal dust-up with Steve Howe and with Yes,  and it was in 1983 and, and by 1984 there was… I hope no one is judging me and the fact that I know all this nonsense that you’re saying So you know, by 1984 everybody who’s ever been in Yes. Which was that point, it was like 12 guys I guess, or nine guys or 10 or 12 guys. They all signed a licensing agreement in 1984, as to who was in, who is out, who could use what and when. And Steve Howe  and in that sort of settlement got use of the famous curly Yes logo, which is use now,  the one that’s really thin. I don’t know if anyone knows what that looks like. I’m sure Anthony could put a picture of it on this thing. But the famous logo, Steve Howe got that and I’m pretty sure, although I’m not 100% positive, I’m pretty sure he got use of using Roger Dean as the as the artist because Yes, without Steve Howe has never used Roger Dean.

      So he got that. So, and then the name went with the guys in the band and there were certain rules regarding who could use the name when. So that was the first legal dustup and wouldn’t you know it five years later, 1989 or 88 maybe four years later they had this document became the centerpiece of a legal issue that arose because John Anderson, when he rejoined with Cinema, had his two record deal. They made 90125 with “Owner of a Lonely Heart”. And then again Big Generator. The second one in 87. He became sort of disinterested in pop music or not being in control of the band cause Trevor Rabin was now in control. Like I said in the beginning, you had this new guy, sort of the prime mover, Trevor Rabin. John Anderson was the seventies prime mover and well, he was upset that he could no longer control the band, I guess.

      And he wanted to make different kinds of music. And that was unreceptive in the band and the in the music and in the record company. So, he and three other, Yes compatriots, namely Bill Bruford, Rick Wakeman, Steve Howe all decided to form a band. And you know, when you have those 4 guys who made, you know, Fragile and Close to the Edge and big Yes music, they’re like, well, what are we going to call ourselves? And that became a problem. Right. So, they didn’t call themselves, Yes. They call themselves, sort of coincidentally like a law firm name. They call themselves the Anderson Bruford Wakeman Howe. Yeah.

      Anthony Verna:

      Or really more like Crosby, Stills, Nash and Young. Although that sounds like a law firm too frankly.

      Jim Cushing:

      Yeah, right. ABWH this is what everyone started calling him because they didn’t want to say they weren’t Yes, because they kind of were, but they also couldn’t call themselves. Yes. And Yes, it was existing doing other things. They were, believe it or not, were  trying to recruit Roger Hodgkins from Supertramp to replace John Anderson at that point. And they sort of rankled Yes when ABWH started rearing its head and the publications, because the average public person like Rolling Stone magazine or whatever, MTV, “Oh this is the new Yes.” and “Oh, this is the new Yes album.” and the Yes of the existed with Chris Squire, Alan White, Trevor Rabin Tony K, they’re like, “No, no, no, no, no they’re not Yes. There’s some weird imposters. We are Yes.” And then there was litigation that was raised in the Central District of California in 1988 or so indicating, this release that the general release they signed said sort of barred ABWH from even mentioning Yes.

      From using their catalog from cause they thought it’d generate confusion, which was I guess, Anthony, is a normal, normal standards.. So and out of that, cause John Anderson basically said I didn’t leave Yes. I just had a two-record deal. I never left. I just finished the deal. So, I’m doing something else right now. And Yes obviously had a different opinion of that and as to who could use the name and what. So, because I think the promoters were using the tour called an evening of Yes Music. This was the name of the tour for ABWH.

      Anthony Verna:

      That’s creative. I’m going to give him points for being creative there.

      Speaker 3: (14:19)

      And well actually what actually was the even more creative, Anthony, is that the, the final name of the tour when they also made a live album of this name too… An Evening of Yes Music Plus cause they’re playing new material to this, technically not Yes. And so, that became obviously the sort of the locust for this confusion and Roger Dean of the state setting in their artwork too. And ultimately, it was resolved so that Yes could stay Yes. And do whatever they’re doing, which was not much of anything, actually, and ABWH had the first had to continue with using that as their name, although they could, could refer to their pedigree as Yes musicians and called a tour of Yes music, but they could not call themselves Yes. It was sort of unsatisfactory, satisfactory resolution because by 1990 would you believe ABWH and Yes merged into one giant eight man mess that went on tour in 91 for some fantastic shows.

      Anthony Verna:

      So basically everybody wound up at home anyway.

      Speaker 3: (14:19)

      Yeah, that’s right. But yeah, but there was litigation how to handle that. And since then, the name and the logos and stuff have been negotiated. Do I think it was another one in 97 another agreement, cause Rick Wakeman left in 96 and so it goes back and forth, with that Yes, there’s always now John Anderson’s out and they’re touring a totally different lineup, so I don’t know what the legalities of that is, but now Asia has a very interesting situation where it’s not like this sort of back and forth tug and pull with all the different members trying to do something all different. Asia started out as a progressive rock supergroup probably much of the chagrin have a lot of the progressive rock bands that their album turned out to be not quite as progressive as they were hoping. But Steve Howe of Yes was in it. Geoff Downs of the Buggles and Yes was in it. Carl Palmer of Emerson Lake and Palmer ELP was in it and as a drummer and John Wetton of was bass and singer. He was from King Crimson, Roxy Music Renaissance, Uriah Heep, UK Family fun bunch of stuff. And they made a couple of albums with Roger Dean As an artist and they made three albums, Steve Howe, not on the third. He was in GTR with Steve Hackett at that point. And they were very, very successful albums. But John Wetton had it turned out as a drinking problem and they couldn’t get along and…

      Anthony Verna:

      Rock musician with a drinking problem…

      Speaker 3:

      Correct. Well, he recovered. He’s now in recovery, which is good. But they made his first three albums in the early to mid-eighties, and then they didn’t do much of anything. But then by the early nineties, apparently there was some sort of groundswell, I guess, for Asia music. I don’t know. Jeff Downs encountered this guy called John Payne. I don’t know where he came from, but he’s a bass player, singer. And he said, do you want to play some music together as Asia and Jeff Downs, who was at that point, the owner of the name said, sure. Well let’s do it. And they recruited other sets of musicians and the original guy, John Wetton was sort of unaffiliated at this point, except for I think a brief tour in the mid-nineties. But other than that, Carl Palmer, Steve Howe would make guest appearances on albums like playing one or two songs?

      I think there was a tour in 92 for the Aqua album where Steve Howe played half the show, only playing his own material. Then he’d leave the stage. Which is strange. So, the original guys are still in and out of sort of guests of their own band while Jeff Downs and this new guy, John Payne became the Asia with other sort of rotating musicians. Everything came to a head in 2006, which was the 25th anniversary of the original Asia where John Wetton was now in recovery. And there was this and Steve Howe was, Yes, it was dormant for several by that point for a time. And Carl Palmer had nothing to going on because of ELP had broken up and so they figured, why don’t we get together and form Asia again? And John Payne said, well what have I been doing for 15 years?

      I’ve been in Asia for 15 years and so much like similar to the Beach Boys you mentioned, you know the original Asia said, “Well you know if there’s anyone who has attachment to this name, it’s the one that actually sold the albums and went on tour that for people to see.” which was the original Asia because as much as John Payne did work hard, I don’t think anyone cares about John Payne with Asia that much. They didn’t sell 10 million albums like the original Asia. So the original album. So what happened is the original Asia, the deal was the original Asia got back together, they toured, they made a couple of, they made three or four albums. This is a side note, the third that it made, one of them called 30 X X X on their 30th anniversary and somehow Googling Asia comma XXX made that a bad business decision.

      But that’s an aside and, and just as a note, and so they became Original Asia. Their name is just Asia, but their website is Original Asia and their website lists as their discography, anything from the original lineup, like the first three albums in the 80s and everything in the 00s. And then ,sort of like the Beach Boys, there’s now Asia featuring John Payne, which is basically everything else done in that 15 year period between the original Asia eras. John Payne, like I said earlier, you had Jeff Downs as the prime mover and the original Asia with the other guys. And John Payne became the prime mover after the other guys left. So, you have two guys of two different eras saying, well, my era of this band is totally legitimate and therefore deserving of the name. And I think that’s sort of where the problems arise where, you know, like I said, other bands like Jethro Tull or  King Crimson, you have guys are important. But they know they’re not the band. Robert Fripp is King Crimson or Ian Anderson’s Jethro Tull. There’s no competition for leadership of these bands. They have guys where they basically take over with the permission of other big guys I guess. And they create their own sound, which is legitimate in its own right. So, there you go. There’s a brief history of Yes and Asia and the copyright stuff.

      Anthony Verna:

      You ready to take a take a deep breath?

      Jim Cushing:

      Yeah, please.

      Anthony Verna:

      Okay. Not a problem, but let me talk about a couple of cases and then we’ll get to why the cases look the way they do because Hey, we’re two lawyers, we’re going to geek out talking about law. And that’s I think kind of the point. There was a case called Kassbaum versus Steppenwolf Productions . Kassbaum was a former member of Steppenwolf and believe it or not, the, the ninth circuit said that that Mr. Kassbaum, and I forget exactly what he played was allowed to say that he was formerly of Steppenwolf or an original member of Steppenwolf for an original founding member of Steppenwolf. You know, however you’d like to phrase it. And, of course, as long as that particular phrase was not as prominent as the current band’s name, so that basically you’re telling the truth, right.

      This person is an original member of Steppenwolf  or a founding member of Steppenwolf or formerly of Steppenwolf. All of that’s true. And this person is allowed to say that and this person isn’t barred from, you know, in trademark law from doing that and not barred under contract law from doing that either. And there’s like another case called HEC Enterprises versus Deep Purple. And I’m not much of a Deep Purple fan. I don’t really remember them, but apparently there was Deep Purple and at some point, New Deep Purple and…

      Jim Cushing:

      Well, can I just say, Anthony, I just looked up Steppenwolf on Wikipedia. And I think the entire music industry has been a member of Steppenwolf.

      Anthony Verna:

      Oh, probably.

      Jim Cushing:

      Like 40 guys probably. Absolutely. And so saying that original members, I mean that’s saying something because you know there’s like 40 other guys you compete with. So that’s something, I guess.

      Anthony Verna:

      That’s true. I’m not too sure that that necessarily went into the court’s consideration. But yeah, I mean, I mean somebody who’s not going to go around saying third-generation member for Steppenwolf no longer in the band.

      Jim Cushing:

      No. Right. I mean the band was founded in 67 right. So, there’s an entire Wikipedia page dedicated to just the former members of Steppenwolf.

      Anthony Verna:

      Yes. It’s like we’re talking about a Christopher guest movie now.
      Jim Cushing:
      Well, I think just when people give me a hard time about the personnel changes and Yes, at least I can count them on two hands, mostly.

      Anthony Verna:

      And, of course, to talk about The Beach Boys’ case, excuse me. And that was called a Brother Records versus Jardine because it was Al Jardine, original member of the Beach Boys who would use various names, Al Jardine of The Beach Boys and Family and Friends. Yes. That was actually used, The Beach Boys, Family and Friends.   And sometimes, of course, The Beach Boys were playing and some people were just used. And as we know, there’ve been many generations of, of the beach boys at this point and Brian Wilson is sort of playing once in a blue moon, as well. So, who really are The Beach Boys? But in this particular instance, obviously, as you can imagine, The Beach Boys is a registered trademark. And here using such phrases like Beach Boys, Family and Friends and, and even Al Jardine of The Beach Boys and Family and Friends would confuse consumers. And actually, there’s plenty of testimony in that particular case that people were confused that… not just concert goers but promoters were confused as well. People…

      Jim Cushing::

      Well they didn’t know that there’s actually a Beast Boys lineup Wikipedia page too.

      Anthony Verna:

      Yes, of course there should be.

      Jim Cushing:

      Their numbers are much smaller though. They don’t include… Where did John Stamos would fit into all this?

      Anthony Verna:

      I don’t remember where John Stamos fit into that to be honest. I think it was way after this particular case because I think that case, cause I forget exactly when Al Jardine left. But that case came before the John Stamos era of I think Kokomo. Probably. I could be wrong on that, but…

      Jim Cushing:

      According to Wiki, he joined in 84.

      Anthony Verna:

      Oh, there you go. So Al Jardine was going around calling himself The Beach Boys or using one of those mouthful of words. And, of course, Mike Love was going around calling himself The Beach Boys. So you have these two original founding members, both calling themselves the same name, but the fact of the matter still remained that Al Jardine was not a part of the group at the time and there was still a collective calling themselves The Beach Boys and he can’t break out calling himself The Beach Boys or any of those particular phrases. And especially the fact that that consumers were confused, but more than that, promoters were confused as well. So not just the music public and the music listening public, but also the music professional public that was out to book concerts and actually make money for these various entities was confused about who they were booking for.

      So that worked very, very strongly against Al Jardine. And, of course, he was not allowed to just call himself The Beach Boys at that time. So a couple thoughts here and when we talked about planning this particular podcast, uh, Jim and I talked about how do we deal with names and on the federal IP side, what we’ll be talking trademark law in a second, but just as a mea culpa, I actually thought there were plenty of states that had laws about this. And you know what, I was totally wrong. I couldn’t find any states that discussed band names specifically. And a lot of these cases that we’re dealing with, that we’re talking about, really talked about either one, trademark law or two, contract law or some combination thereof. And so, one, a band name needs to be a trademark basically is the real thinking here, and I should say a band name is a trademark. It should be federally registered and there should be a formation agreement or really what is a business agreement and…a partnership agreement.

      Jim Cushing:

      What it seems to be, If I can say, Anthony, is for some of these bands… I mean I think I’m going to be, I’m stereotyping but I feel like if people get into bands when they’re young, you know in their late teens or early twenties and they just want to play music and then they’re not thinking about the implication of what would happen in 35 years of me being in this band and not really thinking about that and I feel as though sometimes the guy who’s the artistic inspiration of a band like Brian Wilson and The Beach Boys. I mean he’s the guy who makes The Beach Boys for me. Maybe just alone in that. I don’t know about you, but he’s the guy who makes the sounds for me, but he doesn’t seem to be in your discussion as to the name.

      Which is unfortunate because without Brian Wilson, there would be no Beach Boys for the people to fight about.

      Anthony Verna:

      That’s true. But, but in the 80s, there was no Brian Wilson as well. He was dealing with his, his drug issues. He was trying to get Dr Landy out of the door.

      Jim Cushing:

      But it seems like ultimately the people who fight about the name are the people who either are lucky enough to be in the place where they’re the ones left, like Robert Fripp and Crimson or something. Or they’re the ones who think about with foresight. Maybe I should get an agreement so I can use this name.

      Anthony Verna:

      But yes. Yes, that’s exactly, that’s exactly what happens. And I can’t really say that there’s much wrong with, with what happens there. I mean, if a founding member goes to the family farm and decides to be a farmer instead of a musician, that person is no longer in the band. Even if that was an original, if other people have to come in to fill that person’s slot.

      Jim Cushing:

      Is there any analysis in like the, the amount of, of writing someone does or the influence they have on an image? So let’s say… I’m trying to think of something like John Lennon, someone tried to use the Beatles name or Bono and someone tried to use U2’s name something. Those are like people who are either intrinsically important to the band as a writer or as an image person. So, does that have any weight as to the claim to the name?

      Anthony Verna:

      No, it tends to be whoever is… it’s really not about that particular issue. It’s more or less about who is continuing that band’s name. So if a founding member were to drop out and go do some solo stuff, and that happens to be the face of the band, but like the three other people are still around and they want to record and they want to grow, go grab a new lead singer, they’re able to do that. And you know, think about Van Halen, which, you know, has had three lead singer incarnations and they’re still Van Halen. Even though nobody’s really gonna think about Van Halen three all that much, and they’re still Van Halen. So, it’s whoever’s continuing,  even if it’s that key image person who’s probably done more songwriting than everybody else, so…

      Jim Cushing:`

      Well, let’s say in that example you gave, the bands of the first album or the first tour or whatever, they’d become a name. People know who they are and there’s original four or five or six members, whatever it is that one guy leaves. And can he, does he that point have a right to say, well this is no longer the band that I was in. You can’t use the name.

      Anthony Verna:

      I would say, without an agreement the answer to that is probably no.

      Jim Cushing:

      So, for example, 1969 or 70 when Yes was Jon Anderson, Chris Squire, Tony Kaye, Peter Banks and a Bill Bruford.  Peter Banks was fired or left or whatever or whatever story version you want to use. That left four of the five still in the band. They continued to make music with Steve Howe. Is it the locust, how do you determine who owns the name? Is it by majority, or where the locust of the music is or what?

      Anthony Verna:

      Just noting the fact that there is a radical difference in trademark law from 69 and today. I will say that, in today’s world, what you’re looking at is probably majority and if a band has five people and three are continuing to use that name, then that’s probably going to be who wins out just because they’ve got five, the other people have two. It’s going to be without a contract, it’s going to be very, very sticky for those particular reasons. I think what the cases tell us is certainly when one person is out of a band and still uses the band name and, and yet the, the quote unquote original entity is still around that’s, an obvious loss for the musician who’s now on his own and forming a band. I mean, obviously you can go still play the music. That’s a totally different area. But you know, in talking about the band name itself, when you’ve got a cluster of people who of course have that history and might still be signed under the record deal. And that’s kind of, you’re looking at these things as to what’s the continuation and if it’s some kind of some kind of odd numbers split, probably the majority is going to get it.

      Jim Cushing:

      So even though an odd number split it, it would still be…Again,  sort of going back to the question I asked you earlier, is influencing the band still a factor? So, taking it back to Yes. For example, let’s say Jon and Chris Squire, left, Yes in 1969. The two guys wrote all the music at that point in time, but the other three guys were majority, but they didn’t write really anything. What do you think the court would do that would be, the majority of the guys who didn’t write anything have majority, but the guys who wrote the whole music, all the music and are the image are the two? Wow.

      Anthony Verna:

      I think the court might go with whatever the record label would go with to be honest with you there. So if the record labels recognizing the other guys as the band, then I think a court might follow in that particular direction because if two guys leave the band and even if they’re the face and an image and songwriting, so they’ve put in the work. If they’re the ones who say, we’re no longer a part of the band, all right, well then everybody else must be a part of the band. And so,  I think a court might, might go in that particular direction.

      Jim Cushing:

      Is there a distinction between that, and I’m sorry to put you on the spot cross-examining… Is there a distinction between someone leaving the band and like with, Yes, in 1980, where people thought the band was dissolved and then someone picked up the torch again and said, “No, no, we’re going to bring it back.”

      Anthony Verna:

      Well, in looking at this from a typical trademark law standpoint, cause I think that’s what we’d have to do in absence of a contract and in this particular case, let’s just make that assumption. Trademarks are abandoned after three years. And I know this is going to sound just really weird to a lot of people. But if on one hand I think we can separate a typical business and a band and if a business no longer uses a trademark, another business or person can come around and pick up that trademark after three years and just use it for the same goods and services because the other original business is no longer using it. It’s been abandoned. For bands all of that applies as well. I would say here, the difference is that if somebody were to have come around in the late two thousands and call themselves Toad the Wet Sprocket, you’d sit there and say, well no, you’re not Glen Phillips and the guys aren’t here and, yeah, the website’s kinda dead, but, but you’re not Toad the Wet Sprocket. And I think a lot of music fans would be wired to do that. And even if under trademark law, that would have been fully acceptable.

      Jim Cushing:

      Now does the record company who still makes their… I’m sure Atlantic Records or Virgin or whoever it is, I don’t know who’s still buying Toad  the Wet Sprocket cds. I’m sure there is somebody…

      Anthony Verna:

      Me. I bought the last one.

      Jim Cushing:

      So, let’s say that a band goes 10 years without making something and they’re dormant for want of a better term, they’re gone. But the record company still makes their CDs for the two people who buy them a year. Does that keep it alive?

      Anthony Verna:

      I think so. And, that’s actually what I was going to say. I mean, you can look at the example of REM right now who is officially dormant and broken up. But when you go look at their website, it’s still up giving you updates about everybody. They released a couple of rarities collections. They released a MTV unplugged complete series. So, they’re still putting out stuff as REM. And I think you’ll see that probably be the way of the future so that the name can at least be encapsulated by the original members. And I have no doubt that while REM is no longer going to make new music, I certainly highly doubt that the four original members are not owners of the corporation, for lack of a better phrase.

      Jim Cushing:

      Well, because I have to tie this into prog rock though. Bill Rieflin, REM drummer, is now on King Crimson.

      Anthony Verna:

      Bill Berry…

      Jim Cushing:

      What’s that?

      Anthony Verna:

      Bill Berry, REM drummer.

      Jim Cushing:

      Yeah, there’s a guy called Bill Rieflin and apparently he was a member of REM as a drummer.

      Anthony Verna:

      I don’t remember a Rieflin. How do you spell it?

      Jim Cushing:

      You know what?  The King Crimson website says he was, but it’s a R I E F L…

      Anthony Verna:

      Okay. So, he probably was. He probably came around.

      Jim Cushing:

      His website and Wiki says he worked regularly with.. Yeah, he’s a King Crimson’s third drummer. And now when I say third, I don’t mean in a row, I mean all at once.

      Anthony Verna:

      I think you’re going to be seeing more of this. And I think for a lot of bands, getting back to your original thought is Gee, when you’re 18, 19, all you want to do is pick up a guitar, pick a bass, pick up drums and get out your anger me and make some music and you’re not thinking of it as a business. And one of my earlier episodes where I spoke with Jay Thorne, who’s a horror writer, he said, that he’s an artist, but he also has to think of himself as an entrepreneur. And for a lot of bands, you need to think about yourself as a business. And that means having a partnership agreement, understanding what a band name is and how to properly protect it. And if you start when you start making money, how to properly protect it and understanding copyright law and making sure that your copyrights are registered, that your royalties are coming in with whatever is required in your business, you have to make sure that it’s done correctly. And a lot of people just don’t quite see that when they’re working in the arts.

      Jim Cushing:

      Right. I guess with bands ultimately, I mean, they might not have a contract with one another in the band, but I would suspect if you’re going to sign with any sort of record company, there has to be something, some pen has to be put the paper that says, you know, this is the entity that’s entering into this contract for it to sell records or whatever.
      Anthony Verna:
      I’ll tell you a classic example since we’re jumping around generations here is Crosby, Stills and Nash. And I’m trying to remember when they were going for another record and was it Stephen Stills who had… No, it was David Crosby, so wound up being the Stills and Nash album and the record company said, ”No, we wanted a day Crosby, Stills and Nash album and this doesn’t fulfill your contract.” And so, you have that happening at times throughout history, and that’s probably going to be an issue and, and, yes. So, the record companies do keep track of who is in also because there are performer of royalties, as well that, that’s another reason that record companies keep track and a performance royalty is a new kind of kind of right. And anything after 70, anything before 72, those people, those people are not gonna get performance royalty on top of any other sales royalties or copyright royalties, et cetera.

      Jim Cushing:

      So, when you say performance royalty, you don’t mean putting on a concert?

      Anthony Verna:

      If any recorded music, after 72, the people who perform get a royalty as well as the writers for any sales. So that if an artist is singing somebody else’s song and that song sells, whether on a compilation, in other words, a CD or it’s sold by itself as an MP3 or as a single  or gets radio airplay, there are going to be rights passed out to the songwriter, but as well as to the musicians who have played on that track. So, there’s going to be a separate royalty there. So record companies need to keep track of who’s in a band and who’s playing on what song, anyway.

      Jim Cushing:

      And I imagine the record of the writing credits are important for that.

      Anthony Verna:

      Yes, absolutely. And in copyright law it’s required that when a royalty is paid, it’s paid to all copyright owners and in today’s world, the songwriters are going to be the copyright owners.

      Jim Cushing:

      Well, the performance royalty is for all, right? Or just the song writing royalty?

      Anthony Verna:

      Both. Both. Both.

      Jim Cushing:

      Yeah. So if Lennon-McCartney wrote a song, but all four of them played it. So that’s two different royalties depending on who participated.

      Anthony Verna:

      Yes, yes, of course. Like I said, any performance of all four Beatles is before 72. So, if you go buy the White album, Sir Paul is not getting any money from performance royalties.

      Jim Cushing:

      I thought he didn’t perform in the last two months.

      Anthony Verna:

      No, what I’m saying is that was before 72.

      Jim Cushing:

      All right. Okay. That’s when the laws change.

      Anthony Verna:

      Yes. Yes.

      Jim Cushing:

      Okay. Yes. Well, you know that again, I mean this is probably a, a podcast for another day, but you know, there’s a couple of people in Yes you say they’d never gotten the royalties for some of the things or maybe came very late or they’re still fighting for them or whatever from years gone by.

      Anthony Verna:

      I wouldn’t be surprised with that. I mean you will find in newspapers and music, heavy cities or in music publications, you’ll find a list of royalties of that are supposed to go to people that quote unquote cannot be found. And I will certainly tell you that Paul Shaffer’s name will be on that list and I don’t know about you, I think he’s pretty easy to find.

      Jim Cushing:

      So a couple, a couple of couple of funny stories if I could.

      Anthony Verna:

      Sure.

      Jim Cushing:

      One, I’m not going to mention I represented as a woman in a divorce and her husband, probably now ex-husband. I didn’t finish the divorce. He was a performer in a somewhat famous band that plays Christmas music.
      Anthony Verna:
      And I have a couple of guesses already in my head, but anyway.
      Jim Cushing:
      That’s right. So it was sort of like a Seinfeld episode because she was telling me about these royalties that she was due to receive as part of the marital state, which in theory is true, I guess. It depends on situation. And so, she gave me this list of like all these royalties and like she said, there’s thousands of dollars that she’s due and she needs to get her share of this, etc. And I was sure sharing in her justice of it all until this is why it’s a Seinfeld episode, if anyone watches Seinfeld, is that when, until I realized these worlds are Japanese, so they’re all in yen. So, the royalties are like $750, you know .But she didn’t realize that yen were like vastly like smaller than a dollar for you though.

      Anthony Verna:

      That’s all right. I just heard an interview with Rich Isen from the NFL network where he said that he just got home from a flight and opened his mail and there was a royalty check from doing two episodes of CSI Miami and it was something like $2.45 in residuals.

      Jim Cushing:

      So hopefully if he want his arm on cramp up right now, the checks like Jerry Seinfeld. No, but there was the first episode,

      …episode is the wrong word, but the first featured case on Court TV was Patrick Mahrez, keyboard player for Yes, Refugee, but ultimately the Moody Blues, when he was asked to leave the band or kicked out, I’m not sure what the circumstances of his departure were.  He was apparently, much to his chagrin, and I guess didn’t know he was not an official member of the band. So, when he was just a touring and playing easily, he toured and played on the studios and wrote music. But I guess he was not an official member and so he didn’t get the royalties he thought he deserved. And so, he took them to court, and it was on Court TV. Interestingly enough, I guess. My wife won’t go to see a progressive rock concert with me anymore. Uh, that was …

      Anthony Verna:

      She had her fill dating.

      Jim Cushing:

      Yeah. We, she did that when we were dating, I guess, because that’s what you do. And then And then, you know, she went to a bunch of, I’ll give her credit. She saw Yes with me. She saw Porcupine Tree. So, she was a good sport. She loved the Dixie Dregs. And just as an aside, the last thing she ever saw was this group called the Musical Box, which is a group that’s officially licensed by Genesis and Peter Gabriel will put on shows note for note and  literally note for note, just like Genesis would.

      Anthony Verna:

      How do they sound like? How did the vocal sound as compared to Peter Gabriel?

      Jim Cushing:

      Their claim to fame is that if you line up pictures of their show next to a Genesis show, it’s exactly the same. They play all the notes exactly the same. All their body motions. They finally looked the footage, they try to duplicate a Genesis show as best as you humanly can. It’s amazing.

      Anthony Verna:

      Wow. I had no idea.

      Jim Cushing:

      And I remember going to this Musical Box show with my wife, Tiffany, and they were replicating one of the shows from the Selling in by the Pound and you know, Peter Gabriel, the guy playing Peter Gabriel was wearing the bat wings and the goofy face paint with the real incandescent eyes and they’re glow in the dark and all the weird backgrounds and the costuming. And she looks at me and she goes, this is it. This is it. This is the last one.

      Anthony Verna:

      But, I find that interesting that there’s a band that’s basically licensed in order to sound and look exactly like another band.

      Jim Cushing:

      Yeah. Because that that era of Genesis is so unique with the performance and the staging and the costuming and the music that I guess people didn’t want it to die out because Genesis became totally revolutionized in the 80s. And Peter Gabriel occasionally will recognize this fact. He did this, usually doesn’t talk about it, but sometimes he does. And he gave him literally the stage props to do it. And a lot of the vintage stuff and the rest of Genesis will sometimes even sit in with the band. And it’s pretty neat. And one of the tours or shows she saw with me before the end was we saw Rick Wakeman at the Electric Factory in Philadelphia. I’m from Philadelphia, practice in 2005, I think. And it was Rick Wakeman solo show. And this is relevant to the royalties.

      And if you don’t know, he was a very popular and prominent session musician. So, he’s played on countless albums that most people have heard, but they don’t know it’s Rick Wakeman of Yes. And first two David Bowie albums, Black Sabbath, Lou Reed, lots of stuff. And so this one was in particular the Cat Stevens “Morning is Broken”, which I think most people have heard, right. Anglican Christian, him and Cat Stevens wanted to play it and he hired Rick Wakeman as a session guy to play the piano. And as, as most Christian hymns are, that’s like a minute and a half long. Right. So although singles are short, they’re not that short and Cat. Stevens said, “Well, Rick, play it with an introduction, you put an introduction.” So he played it with an introduction. “Okay. “Why don’t you do the same thing at the end?” “Okay. We’ll play it.” Same thing in and Rick Wakeman is telling the story in the middle of the songs and when I saw him, okay, you do a little middle thing. Okay. And that, that gets the song yet like three minutes and he added another bit. That’s great. And they recorded it and  it became a big hit and later on Rick Wakeman was supposed to get his check for his royalties. He never got it. Cat Stevens called Rick Wakeman and said, “Hey, could you give me the music for what you played? Cause we’re going to go on tour and it’s a big song. We want to make sure you play it.” And Rick said, “Well sure, yeah I’ll give you the music. Just, you know, give me my check, the check never came.” And so when we saw Rick Wakeman perform, he pushed the piano away so you couldn’t see his fingers because to this day he’s never been paid for those royalties because then to this day, Cat Stevens has no idea really what he played exactly. And it had never been actually replicated as, as on the album because Rick Wakeman refused to disclose that until he gets his, at this point it’s probably like five dollars.

      Anthony Verna:

      But you know, I’m kind of surprised at that because it’s not hard for a lot of musicians to just figure out what somebody else is playing it.

      Jim Cushing:

      So I’m sure they figured it out, but he’s justt says on principle.

      Anthony Verna:

      Sure. It reminds me very much of a case I had when I first broke away from my old firm and… Jim Cushing: And there was no dispute over the name when that happened.
      Anthony Verna:
      Exactly. But when I took over a case and it had to do with a documentary that was made and I represented a camera man, which seems a little bit odd to a lot of people because a camera man’s work doesn’t necessarily belong to him. It belongs to the production company or the company that’s hired him to actually just point the camera. But there was no agreement. So that’s issue number one. And issue number two was more so that the interviewer who came to do the interview for this documentary came with about three questions, which is nice for maybe a half-hours worth of shooting. But if you’re actually putting together a documentary, you need to have four or five-hour sessions with people that you’re speaking to. And really these clips in a documentary of somebody speaking for 30 seconds is culled out of four or five, six-hours-worth of footage.

      And in this particular case, our argument was that my client put in a lot of authorship and that what was done was very much a work of authorship by needing to pad 30 minutes worth of conversation into three or four hours. And that he was able to do it on his feet. He was able to keep the subject talking and he was able to get them enough footage that they were then able to put into the documentary and make a better documentary out of. So, it’s very much a similar argument. Like, here’s somebody who’s made, you know, I mean, it’s a little easier when somebody is a musician, has written music, but it’s the same issue. It’s like, Oh yeah. All right, you’ve recorded it. But now I want the check for my authorship. And that’s effectively what that is under copyright law.

      Jim Cushing:

      Yeah. Because he participated creatively in the creation of this documentary as much as the other players in the thing.

      Anthony Verna:

      Absolutely. No, absolutely. Absolutely.

      Jim Cushing:

      Right. So, I guess the moral of our story today is get everything in writing. It doesn’t matter which part of the role you play. Make sure you have a partnership contract.

      Anthony Verna

      Boy, it sounds like such a lawyer, doesn’t it?

      Jim Cushing:

      Okay.

      Anthony Verna:

      I know. And it’s not like we’re here to suck the fun out of music. It’s something that I’ve certainly done. I’ve done partnership agreements, I’ve done trademark searches for musicians and it’s something that a lot of bands don’t quite think of. But ultimately down the road when you plan your business, which is effectively what a band is, it’s a business and you plan for down the road, when you get to trouble points, it’s easier to deal with them.

      Jim Cushing:

      Well, think of it this way, if you’re the 18 or 19 year old guy entering in the band and you’re writing a partnership contract, you’re basically saying that you’re going to be around in 20 years to make that important, which is a good thing for your career I guess. I do have a question for you. I mean, before we sign off, I do have a question. My father-in-law, Matt Stauffer, he’s in a band, he’s a musician. He was never able to get the big record deal that he wanted, but he still tours locally in pubs and bars and has bands and so on. And he’s in a band right now called Geezer. He’s a funny guy.

      It’s a bunch of guys in their fifties and sixties playing music of their era. And so obviously, they made an album out of someone’s house on a PC, right? There’s not a record company and by album, I just mean a, a series of covers. I don’t think they have a whole lot of… they only have one or two original songs that I know of. And so, there’s no record companies, no record deal, there’s no contracts, there’s none of that. There’s a website. Can someone else use that name? It’s just a garage band, more or less of old guys.

      Anthony Verna:

      Going back to traditional trademark principals, because that’s effectively what we’re looking at here. The first question we have is, is there interstate commerce one, is there commerce to begin with? And two is there interstate commerce? So let’s, let’s break that out into, into two questions. And then the next question that we have is, is this the most senior user of the mark? Because it, especially in the goods and services. So, if there was another band out there called Geezer, using obviously same goods and services, whether it’s recording music or performing music, certainly they’re related. So you have to look at all of those questions and get those questions answered before you get to your yes or no. Of course, it’s not necessarily a flip some bits and you get definitive answer.

      Jim Cushing::

      Well, is there any answer the lawyer gives you? It depends, of course. Right. But so, I guess for a garage band like Geezer, they’re a Philadelphia area, you know, bar they play for in bars and stuff. So I mean, if some group came up in like Toledo, Ohio or you know, Boise, Idaho with the name Geezer, which I’m sure there’s other people using the name that would necessarily, I get to call it the conflict because there it’s not really a conflict. It doesn’t go out of the five county Philadelphia area.

      Anthony Verna:

      Sure.
      And like I said, you’re going to probably with a lot of some businesses, you’ll see that that particular, um, conflict happen. And I’m actually dealing with this for a client right now. Like who do we have the right to send a cease and desist letter to? Is the cat even just out of the bag. And those are particular questions that you always have to have to answer. So, so here it’s going to be right, are there, you know, are there bands that are senior to this band? And even that isn’t necessarily definitive because if one band bands only been around a year, that’s going to be different than another band that might’ve have been around for three years. And it depends on how long this particular band is around as well. So all of those are, you know, when you start going down the checklist of things that you have to answer, the it depends typical lawyer thing that we joke about really does come into play.

      Jim Cushing:

      Thanks for answering.

      Anthony Verna:

      I do my best, sir. I will let you return to work. Jim, thank you so much for joining us.

      Jim Cushing:

      Thanks. Until next time.

      Anthony Verna:

      Of course, sir. I’ll talk to you soon.

      Jim Cushing:

      All right, thanks.

      Anthony Verna:

      You’re welcome. Bye.

      58 min
    • Episode 8: Two Ways in Which Bands are Businesses and Intellectual Property and Contract Mistakes Sink Them
      In Episode 8, I finish the discussion of the copyright infringement case between Roger Dean – famous for his 70s album covers – and James Cameron (and other producers of the movie “Avatar”) with James Cushing of the Law Office of Faye Riva Cohen in Philadelphia, PA.
      Then we talk about two ways in which bands are businesses:

      * Bands need trademark protection for their names
      * Bands need partnership agreements.

       
      58 min
    • Episode 7: Inspiration, Independent Author Entrepreneurship, and Copyright Law with J. Thorn

      In this episode, I speak to J. Thorn, horror and dark fantasy author.

      J and I talk about what inspires his writing.  I laughed heartily when he said that the most-asked question to him is, “How do you sleep at night?”

      But J is an author who sees himself as an entrepreneur and uses many avenues of marketing.

      In this intersection of law and business, copyright law is the target.  Copyright law doesn’t protect inspiration, only the expression of ideas.  It is an important area of law for artists because artists control the results of their work – the fruits of their labors.  Without copyright law, would art proceed at the rate that it does proceed?  Someone else using another’s work seems to intrude upon our internal sense of fairness.

      Here is a lightly-edited transcript of the episode:

      Intro:

      It’s the Law and Business podcast, hosted by me, Anthony Verna. We help your business understand its legal obligations better. My practice focuses on trademark, copyright, intellectual property, and advertising and promotion law. Contact me at [email protected].

      Anthony Verna:

      Welcome to the Law and Business podcast. I’m here with J. Thorn, dark fantasy, horror writer. And that’s basically the same genre, correct?

      J. Thorn:

      Uh, pretty much.

      Anthony Verna:

      All right. Cause I remember Phillip K. Dick once said that science fiction and fantasy are the same genre as well. And, as you know my law practice is intellectual property, so we like to protect.  -well, we can’t protect ideas, but we like to protect the expression of the idea and we effectively protect inspiration. So, let’s start with where your inspiration comes from.

      J. Thorn:

      Sure. Inspiration is, it’s really kind of hard to describe. I think, like a lot of artists, I feel compelled to create and for better or worse, sometimes that compulsion is out of your control. So, I think I’m sort of inspired by just life in general and, I’m compelled to kind of to tell stories and so the inspiration could be as something as complex as a major life event or it could be as something as simple as a stroll through the woods. It’s really, it’s really sort of unpredictable, but it’s also exciting at the same time.

      Anthony Verna:

      So what are some, let’s talk about a little life event, something daily that has inspired you in the past.

      J. Thorn:

      Sure. Have you ever woken up at night and you’re not really sure what woke you up?

      Anthony Verna:

      Of course.

      J. Thorn:

      Yeah. Well that’s a perfect example. And being a horror, dark fantasy writer, you can imagine the depth to which you can take that experience. Most of us, most of the time we’ll roll back over and go to sleep or go get a drink of water or look out the window. But you can take that one little moment, that everyday moment that we all have, and you could really turn that into something else.

      Anthony Verna:

      Okay. And, and how about something more grandiose that has inspired you?

      J. Thorn:

      You know, I’m a parent and I have two children and I think that experience… No, not a specific experience, but just being a parent, I think, fundamentally changes your outlook. And it’s not in a judgmental way. I’m not suggesting that. I just think it really alters the way you view the world. And so, I think that having children is a pretty significant life change and I think that’s I can draw inspiration from that as well.

      Anthony Verna:

      So,  taking your inspiration, putting it down on paper, this is what you do, this is your career, correct?

      J. Thorn:

      Yes.

      Anthony Verna:

      So how did you you take this from, well, I hate to use the phrase hobby, but, as they say, if you don’t make money, it’s a hobby. How did you take this from hobby to career?

      J. Thorn:

      Well, it’s not a, it’s not a straight line and it’s not a very clear line either. Never a straight line. No, no. It’s never, it’s never what you planned, right? It’s never what you set out to do. I consider myself more of an entrepreneur than I do a writer. And I say that because I do write, but I don’t, there’s this quote unquote full time writer, a persona that I think a lot of people who are authors and outside of the writing they had this had this sort of fantasy in your head that means you sit in a cabin in the woods with a cup of coffee and a computer and…

      Anthony Verna:

      Or these days, you sit at Starbucks with a cup of coffee.

      J. Thorn:

      Right. Yeah. Whatever your personal preferences, right? And you sit there and you craft the great American novel and then you fly off and vacation with your family on your private Caribbean island. And like that’s just not the reality for 99.9% of writers. So, I have, I do consulting work, I do technical writing. So yes, writing fiction is a career, but it’s not my only revenue stream. And so I have to be I have to be pretty nimble in this market and I have to take advantage of opportunities and I have to use my strengths as an independent author in moving fast. So, how does that look? What’s the straight line? I think the biggest distinction between what you might consider a hobbyist or sort of just a person that’s writing for their own fulfillment is, at some point, you have to step back and you have to look at your art as a product.

      Anthony Verna:

      And let’s talk about being nimble. Cause I think that’s a very key component that you just hit on because on one hand, when you’re writing for yourself and however we define that, it’s very different than being a technical writer where somebody else maybe has given you instructions or has given you a previous manual version or something to that effect that you need to base your new
      product off of. And also, that’s not yours.

      J. Thorn:

      Yes.

      Anthony Verna:

      So how does your mindset differ?

      J. Thorn:

      I think you have to pay close attention to what is happening in the world of publishing. And you have to be willing to take a little bit of a risk. I  personally know some great authors who are risk averse and that there’s nothing wrong with that. I think we all have our own sort of comfort level. But being nimble is sort of a, it’s a nice way of saying you’re going to have to put your neck on the line and you’re going to have to take some risks. And most of the time they’re not going to pay off. So, you know, being nimble for me. I’ll give you an example. In around this time last year, I started to notice on Amazon, there were these multi-author box sets that were appearing and for the lay person, it’s basically if you go on Amazon and you browse in the Kindle store, authors were getting together, let’s say five, six, seven, eight, even as many as 12 of them.

      And they were putting all of their individual novels into one collection. And so, you as the reader could buy that single collection. And inside that you would get 10 different novels from 10 different authors. And this was not a new idea, but I noticed that around this time last year, there were more and more of those were appearing and they were doing really well in rankings and in reviews. And within about two weeks of making that observation, I had a box set up for sale. And so that’s what I mean by being nimble. If I had been with a traditional publisher, well first of all, traditional publishers probably wouldn’t permit their authors to be included in a box set like that. But even like a smaller publisher or an independent press, you’re probably looking at six to nine months turnaround time if it’s being organized by a small press and by that time that opportunity may have long passed. So, by being nimble and taking a risk, taking a chance, I was able to get into that game right away.

      Anthony Verna:

      And when you take one of your writings and you put it in a box set with three or four other authors, you’re in a way acting as if it’s a reading co-op, for lack of a better phrase. But, fans of each author can easily, discover not just a new works by that author, but new works by other authors that they may also like.

      J. Thorn:

      Yeah, absolutely. U The boxes have got a lot of traction because we priced them at 99 cents. And clearly there’s an argument and I think it’s a valid argument, , that says, wow, you’re really devaluing your work. You’re putting out seven or eight novels and you’re basically charging 10 cents a piece. And I never really saw it that way. In fact, I saw the box sets as advertising that paid me. So, the idea was I could get my work in front of not only other readers, but other readers of the same genre, and that’s really important. So, these box sets were not sort of randomly themed box sets. They were genre box set. So, I know that readers who like Scott Nicholson’s work, they’re going to like my work and vice versa.

      And so we sold, and we still are, we’re selling a good deal of these and it’s not making us a ton of money because we’re at the 35% royalty rate. So, on a 99 cent box all eight authors are splitting 35 cents. Right? But we’re selling a bunch. And we’re selling enough that we’re making a little bit of money and so, that’s how I kinda see it as advertising that’s paying me. I really don’t see it as devaluing the work because it’s even a step up than say, giving your book away for free. If you’re using a KDP select free day or you’re making your book freely available, you’re getting no financial compensation for it. At least we’re getting something and we’re getting our words out to new readers.

      Anthony Verna:

      And at that particular point, are you finding that people who bought the box set are coming back?

      J. Thorn:

      Well, there’s a few interesting things that are happening and I’m basing this just on the reviews for the box sets. I don’t have a real nice data set to back this up, but what I’m hearing and what I’m seeing on the reviews are two things. Glenn James and I who were sort of spearheading the box sets, we kind of branded them a certain way. So, the biggest series is called This is the End. And there’s three versions of that. And there are some authors that are in some and not in others, but they’re branded. If you put them all next to each other, they look like they belong together. So, we’re starting, we saw readers who bought the first collection and then bought the second and bought the third. We’re also seeing reviewers, saying that they went and bought the authors’ other books from the one that was included in that box set.

      Anthony Verna:

      Okay.

      J. Thorn:

      So, for example, I put book one of a series into these box sets and I’m seeing reviewers saying that they’re going and buying books two and three.
      Anthony Verna:
      Yeah, so in a way it’s not quite a free preview, but in a very big way, it is a preview of one particular series.

      J. Thorn:

      Well, in most cases, yes, the, the novels that are inside the box sets are either standalones or they’re book one in a series. And so that’s the idea, you give the reader for a dollar, you give the reader a full novel, you know, and there are seven or eight of them in there and they get to taste a little bit of a taste, but it’s not a sample. It’s a full novel.

      Anthony Verna:

      Right.

      J. Thorn:

      So, I think it’s the best of both worlds.

      Anthony Verna:

      And I’m curious if you’ve ever seen any of your work elsewhere that might be unauthorized.

      J. Thorn:

      As a matter of fact, I have.

      Anthony Verna:

      How are your views on that? Because I have a feeling your views are not the traditional view and the traditional view is, I didn’t authorize it so I have to pull it away. I have to lock it down. I also have a feeling that view is changing in general.

      J. Thorn:

      I think it is. And I think I’m somewhere in the middle on that. This sort of concept has been talked about a lot and I don’t know who to attribute it to, but there’s the idea that obscurity is worse than piracy. If you’re not being read at all, that’s worse than someone feeling as though your work is valuable enough to steal it. I guess , for me, seeing my work on a pirate site and it’s someone that’s making it available for free, I’m probably gonna request that be removed, but I’m not necessarily going to go full bore at that. I think for me, and this hasn’t been the case and I hope it isn’t, I think I would be really upset if I somehow found one of my novels that had a different cover on it and a different author name and a different title. But it was my book. That would really, really concern me because that’s different than sort of pirating one of my existing books or giving it away for free.

      Anthony Verna:

      Is that because intellectually there’s something more dishonest about it?

      J. Thorn:

      It feels that way to me. And, I think everyone has their own sort of threshold on that. But yeah, I would feel like if it’s my intellectual property and someone is passing it off as their own, to me that feels worse than someone giving away one of my books for free when I’m trying to sell it.

      Anthony Verna:

      I can understand that completely. So, getting back to the entrepreneur in you, what else do you do to get the word out of who you are? Because on one hand I think a lot of people believe that an author just sits there and writes and then stuff comes in. But, in your particular case, because you’re not backed by a big publishing house and there’s your give and take with a big publishing house, but you need to get the word out there on who you are. How do you do that?

      J. Thorn:

      Well, the only way you can do that well is to just have a lot of content. The more books you have, the more titles you have available, the greater chance of someone finding you, and the greater chance that if they like one of your titles, they’re going to go and read more. I think it’s a pretty common understanding that readers read authors, they don’t read books. And I don’t know if that’s true for a lot of art forms, but it is for a book. So, it’s completely plausible for a reader who discovers a new author to read a book and they like it, to go and read the entire catalog. So, it’s definitely in your best interests, especially with fiction, to have as many titles out there as you possibly can. So, it works as sort of a net to get new readers. And it also helps to build royalties once someone’s sort of caught in that net, for lack of a better analogy. As far as getting the word, I think getting the word out, like that’s the million dollar question, right? I mean, we’re all screaming into this insane sea of social media and we’re all trying to be heard and noticed. And that’s really, that’s the million dollar question for everyone. And I think the go to for a lot of authors, for a lot of people as well, clearly social media, right? Like, I’m going to get a million followers and I’m  going to get a a thousand likes on my Facebook page and then all of a sudden people are going to start buying all my stuff. And, I don’t think I ever believed that completely. And now I feel like I’ve completely discarded that idea.
      I’m on social media now strictly to interact and engage with people. I rarely post stuff about my books. I rarely tweet sales links. There’s just no, first of all, there’s no evidence. There’s no strong evidence that supports the fact that if you see a tweet with a book link in it, you’re going to buy it. I mean, you’re talking like less than 1% of the time that happens. And now there’s even some pushback on that. I think people are more  skeptical of messages coming on social media that are selling. They want to be informed or they want to be entertained. They don’t want to be pitched to necessarily.

      Anthony Verna:

      I’ve certainly had that and I know it’s anecdotal more than of course, scientific, but I’ve certainly had people say to me, Twitter was a lot better when we didn’t have everybody needing to sell something on it.

      J. Thorn:

      Yes, yes. Yeah. You talked about sort of having an entrepreneurial spirit or how do you get the word out in a way that is new or innovative or different? The biggest thing you can do, I think, is just kind of be yourself on, and I know it sounds hokey, but I think your tribe kind of find you, but you have to be authentic about it. So, I’ll give you an example. In I guess May, I started, the Horror Writers podcast and about two months ago, I brought on an a co-host and, we’re doing our podcasts weekly now. It costs us money. It costs us time. There’s absolutely no correlation between having a podcast and selling books. Well, what it does is it lets people know I’m here and, I’d like to think we’re offering a service. You know, we’re entertaining, we’re informing, and eventually, over time, maybe that sets me apart. Maybe it doesn’t, I don’t know. But I think those are the, and I’m not saying everyone needs to start a podcast, but I think you need to kind of find other ways to kind of give and/or entertain or inform and then that that will come back and help you.

      Anthony Verna:

      Especially, I think in your genre, I think a lot of people believe that the science fiction, fantasy, and horror writers out there do nothing but sit in a cave and are hermits and it’s not really true. You know, for example, Ray Bradbury was on an episode of You Bet Your Life and you can probably find that on Hulu and Netflix, and I’m sure it’s up on YouTube illegally somewhere. And it’s hysterical to see Groucho Marx talk with Ray Bradbury, who you know, is like, “Yeah, well, I met my wife.” “How’d you meet your wife?” “Well, I was at the bookstore.”, Like duh, Ray Bradbury, an author went to the bookstore.  “And it turns out she knew my books.” Groucho Marx was like, “Well, that must have been very, you know, you know, that must’ve been very, very, uh, simple and easy. You get to talk about yourself.” And in a way, I would, I guess you’re right. It’s hokey. Be Yourself. It sounds very Disney, especially from our author, but it really shows that, yeah, you’re not a hermit. You’re not coming through as somebody who’s disassociated with life, which I think is a stereotype in your particular genre.

      J. Thorn:

      Yeah. I was on Joanna Penn’s podcast a few weeks ago and she said, “You know, I got to ask you the question I always get asked, which is, how do you sleep at night?”
      And what she meant by that, and I totally got it, was, I think people believe horror writers, they do live in a dungeon and they’re sacrificing goats, at every vernal equinox, and you know, it, we’re just regular people. We have mortgages and families and things like that. And so, I think it’s the one great way to use social media is to let that shine through and just be authentic. And there are some days, there are some weeks where I don’t tweet at all. And there are some weeks where I’ll tweet every day. But it’s not a marketing plan. It’s just I’m, and I do it when I feel I do it. When I don’t, I don’t. And I’m on Twitter and I’m on Facebook primarily. I have a Pinterest account. I am not there very much. I’m not. I don’t have much of a presence on Google plus. I’m not gonna go there. I’m not going to spread myself out just because I think that’s what I have to do.

      Anthony Verna:

      You know, it’s funny you mentioned that cause our firm actually has a Pinterest account and it was kind of one of those shots in the dark that I’ve certainly shied away from putting a lot of effort into because how many times can I take a picture of something and say, “Hey, that’s a really good advertisement.” And there’s not much more I can say because that would be ethically not right to keep commenting about other people’s advertisements or trademarks or whatever. So, there are times when one social media avenue isn’t particularly correct from a business standpoint.

      J. Thorn:

      Right, right. Gary Vaynerchuk’s got a great book on that. The Jab, Jab, Jab, Right Hook. He does a really good job of sort of explaining what the pros and cons of the different social media platforms are. The book is already a little bit dated, but it gives you a good understanding of who is on Facebook and who is on Twitter and what industries would benefit from which social media platforms. Like, you know, Pinterest is probably in. If I were a graphic artist, I would be all over Pinterest, but, it’s not as well suited to someone that puts sentences together for living. So, first of all, you got to like it and it’s gotta be the audience that you’re looking for.

      Anthony Verna:

      Sure. So what’s coming up for you? Is it just at this point you have your business plan, which part of it is a podcast? It’s not really social media, but however you get the word out there, is it lather, rinse, repeat at this point for you? Or is it still evolving? Is it still changing? Is it still finding something new to get the word out there?

      J. Thorn:

      Yeah, I think it, it has to always be evolving. Things are changing so quickly, not only in this industry, but in our world, especially around technology. You can’t do this. You can’t do the same thing as you did two years ago. I mean, some of the things you can, but you can’t have the same approach and you can’t just rehash the same thing because things change. So, I don’t know if the podcast is not really part of a marketing plan. I’m just doing that cause I’m having a good time with it right now. And I told Richard Brown, my cohost, I said, “You know what? We’ll do this while it’s fun and if it’s not fun, we’re not gonna do it.” It’s fun right now. But it may not, if it becomes a chore or a task, I’m not going to do it just because I feel like it’s a good marketing technique.

      I think for me right now, I’ve sort of established a nice back catalog. I have, I don’t know, I should know this better, but I think I have like six or seven full novels, maybe eight full novels and short stories and different titles out there. And, and so I’m continually writing my own stuff and really through the rest of 2014 and into 2015, my focus is really going to be on collaboration. So I started a really big collaboration and finished that, The Black Fang Betrayal. And that was with 10 authors. But now what I’m looking to do is to co-write a lot of stuff. So, I’m already pairing up with some other authors in different ways, in different genres. And that’s how I’m looking to grow and to build. And when you pair up or when you collaborate, you amplify your ability to market and you’ve cut down the amount of time it takes to produce content. So, everybody wins in that situation.

      Anthony Verna:

      So, when you’re collaborating, is it always a set out as a 50/50 split or with 10 authors, a1/10 split or how does your effort into writing get divided?
      J. Thorn:
      Yeah, I think it’s going to be a case by case basis. For The Black Fang Betrayal, that was something I organized because I was really passionate about it and I wanted to prove to myself I could do it, but I didn’t feel like I was entitled to any kind of special compensation for that. So, there are 10 authors in that, and we all get 10% of whatever we make on it. I have some other co-writing projects in the line that’ll be a straight up 50/50 split. I have others that I’m not really sure yet. Yeah, I think it’ll be really individualized, but I would say the most common arrangement would be a 50/50 split.

      Anthony Verna:

      That makes absolutely perfect sense. We’ll keep it. Keeping it simple makes business grow a little better as well, right?

      J. Thorn:

      Yeah. And part of what I want to do is I’m sort of looking to collaborate in two ways. I want to collaborate with writers who I look up to, who I admire, who I’ve been reading, because I want to learn from them. You always want to learn from people who do things better than you do. So I’m always looking to improve and so I’m trying to work with authors who I perceive to be really stellar and really at the top of their game. At the same time, I know how hard it is. And so what I’m also looking to do is work with aspiring writers, writers who don’t really have a platform yet but are really great wordsmiths who have a passion, who have a desire, they’re motivated. And so, I’m looking to partner with those types of people as well. So, it just really depends on the situation and I think every co-writing opportunity might be slightly different. But my approach is the more I can work with other people, the better writer I become.

      Anthony Verna:

      And how does that, again, going back to the fact that this is a business, how does the co-writing effect the sales? Have you seen more sales growth in whatever you have written?

      J. Thorn:

      Yeah, I think that’s a time will tell on that. I have seen co-writing situations really work for other people and I have no reason to believe it won’t work for me. But, I’m not far along enough yet that I have any titles out except that one 10 author co-written piece. So, I don’t have a lot of data to support that. But even in that, I’ve noticed because there are 10 authors involved in it, I’m gaining new readers and in whatever correspondence I have with them, whether they sign up for my mailing list or they leave a comment for me on Facebook, I’m sort of detecting where they’re coming from and I’m noticing that they’re coming from some of the readership of these other authors, which is great.

      Anthony Verna:

      No, that is wonderful. It’s a win for everybody. Yes. And how was The Black Fang written? Did everybody have a chapter? Did you have an outline and people started filling in the outline? How you split the work between 10 authors?

      J. Thorn:

      Yeah, it was pretty crazy. And it took several sort of iterations for me to kind of figure out how it was going to work. The original concept was we were going to do like a parlor game where someone wrote a piece and they handed it off to the next person. And they picked it up and then that person wrote the next piece. And that was the original plan. But then we realized to create a novel in that way, the person at the end of the line would almost have to read an entire book before they could even write their piece. And just like logistically it would’ve taken a long time and I’m not sure we could have pulled it off. So, when I had that realization, what I decided was to craft a story that allowed each writer to write a piece and allow me to kind of stitch it together in a way that was compelling and made sense. And so that was the approach. Each author received a, not really a prompt, but sort of a scenario. And so, I told them, you know, here’s the city that you’re writing in, here’s your character, here’s what your character wants and here’s kinda how it has to end in a loose kind of way. And then they could fill in everything else. So, they did have some structure, but it wasn’t a real strict outline either.

      Anthony Verna:

      And were there any points of disagreement maybe in the structure and the plot?

      J. Thorn:

      No, I don’t think so. I was pretty transparent in the process and what I did before I sent them their prompts or their assignments, I wrote the beginning and the end. And so, I said, here’s how it’s going to start and here’s how it’s gonna end and here’s how your piece is going to fit in. And I took some feedback and I changed some things. So, they all knew sort of the overall story arc. Now what did happen, over the course of the collaboration is a few people dropped out and a few people were added and they were just normal life circumstances like there, I wish I had some juicy drama on it, but there really wasn’t any. I think one writer realized early on that it was a sort of heading in a genre that he wasn’t really comfortable with and it was going to be hard for him to write and I totally get it. And someone else had the life situation that came up and they had to back out so those kinds of things happened. But there wasn’t any gnashing of teeth or anything like that.

      Anthony Verna:

      No, it’s good when a collaboration can come together.

      J. Thorn:

      Yeah. And honestly, it probably shouldn’t happen. Like on paper it should look like a train wreck. So, I’m really happy that it did.

      Anthony Verna:

      And, J., I’ll let you plug away, before we run. Where are you ranked in terms of horror sales?

      J. Thorn:

      I’ve been as high as five. I was at five in March. For the most of the summer I’ve been kinda hovering on the first page, somewhere 10 to 15, I think. I think now I’m in the 20s somewhere. Sales fluctuate. You have these peaks and valleys. I try not to pay too much attention to that. I mean, clearly, it’s because those rankings are based on sales and I think that’s different than winning awards or contests, which are very subjective. I like the idea of sales determining that rank. So, I’m proud of that. But at the same time, I try not to focus on it too much because I’m kind of neurotic. And once you go down that dark hole of checking your ranking or checking your sales a couple of times a day, it’s not helping you. So, I’m very pleased with wherever I am right now. I’m getting some visibility. I’m getting new readers every day and I’m very thankful for that.

      Anthony Verna:

      All right, J,, thanks very much for coming on and how can everybody find you?

      J. Thorn:

      Easiest thing to do is just go to jthorn.net and you can find everything I do through that.

      Anthony Verna:

      All right. Wonderful, J. Thanks for coming on.

      J. Thorn:

      My pleasure, Anthony.

      Anthony Verna:

      All right, I’ll talk to you later.

      33 min
    • Episode 6: Logo Design Discussion with Paul Lukas and Trademark Analysis

      In Episode 6, I talk with Paul Lukas, ESPN’s uniform reporter and the host of the UniWatch blog.  We discuss classic logo design and what makes classic logo design.  Paul digs deep into his repository of design critique to offer some tips to the logo designer about how a business should go about designing a new logo for a new brand.

      I discuss how this affects trademark law.  Trademarks should be “fanciful” or “arbitrary” to be their strongest.  It is easier to protect trademarks that are stronger than ones that are “descriptive“, as consumers should not have a preconceived connectedness between the goods/services behind the brand and the brand itself.

      Paul’s conclusions about classic logo design being equivalent to a business’ longevity seem to echo how trademark law works.  The best logos work because there is not a relationship between the logos and the business – the business makes that connection in consumers’ minds.

      Here is a lightly-edited transcript of the podcast episode:

      Anthony Verna:

      All right. I have theme music. Sounds really good. Thank you for listening to the Law and Business podcast. This is episode number six. And in it I speak with Paul Lukas, ESPN’s uniform reporter, and we speak about design and what makes design happen and what’s memorable in design. And what are some tips that businesses who are looking at creating new brands can think of when designing those new brands. And a lot of what Paul has to say talks about not overdoing it and that for a lot of businesses, what is iconic extends from longevity. And we certainly have, I think, experienced a lot of marketing advice that says that a logo has to tell the story of the business or that the business name or the branding has to tell the story of the business. And trademark law disagrees with that. And I think what Paul has said in the interview that you’re about to hear really emphasizes what trademark laws says, even though he may not really have that link in mind. And that is in trademark law, marks that are fanciful are easiest to protect. And a fanciful mark is one that has no relationship at all between the product and the mark itself. And it’s created in only for this actual use. And this use in relating to the brand. A fanciful trademark helps because the relationship is created by the business between the brand or the logo and the products, the goods, or services offered by that business. An arbitrary trademark is one that is already in existence and the relationship comes from this particular good, this particular business.

      Think of Apple. That really is the traditional arbitrary mark. The word Apple has nothing to do with computers and the design of an apple has nothing to do with computers, but this company has created that particular relationship. So, think about how trademark law relates to these particular design tips. And I think you’ll see that how law is set up is probably how we already perceive a lot of the world around us. Thanks very much for listening. I’m Anthony Verna. You can reach me at [email protected] or at 914-908-6757. Once again, my law practice focuses on intellectual property, trademark, copyright and advertising promotion law. Thanks very much for listening.

      Anthony Verna:

      So welcome to the Law and Business podcast. I’m joined by Paul Lukas. How are you doing, Paul?

      Paul Lukas:

      Very good, thanks. Thanks for inviting me on. I’m happy to be here.

      Anthony Verna:

      Not a problem. Thanks for calling in. And Paul is the… shall we say you’re the uniform reporter for ESPN. How does that sound?

      Paul Lukas:

      Yeah, yeah.

      Anthony Verna:

      Wonderful. And your blog is uniwatchblog.com, correct?

      Paul Lukas::

      Yes. I write a column for ESPN called ”Uni Watch”. And then that column, which runs about once a week, it’s supplemented by a daily blog, also called “Uni Watch” for people who can’t wait a whole week to get their latest uniform news.

      Anthony Verna:

      Wonder. Yeah, I’m one of those people who …

      Paul Lukas:

      Yeah, you’d be in the target audience.

      Anthony Verna:

      Exactly, exactly. And and speaking of uniform issues my Eagles came out looking like, inkblots last night and that was just dreadful. And that hurt me.

      Paul Lukas:

      Yeah, they, for the first time in team history wearing solid black. And what was interesting was how those dark green helmets, I think, look blacker than usual because the rest of the uniform was black.

      Anthony Verna:

      I agree with you completely .

      Paul Lukas:

      Got the jersey and pants sort of subsumed the helmet into their black void.

      Anthony Verna:

      I agree with you completely, but Paul, you’re also not just a a uniform critic. I mean that extends from design experience in general and in design critique in general.

      Paul Lukas:

      Yeah, I’ve done a lot of writing about various forms of design graphic design, industrial design, package design, brand design, et cetera for a variety of publications, designed publications that as you would expect also for business publications. The sports design thing, the athletic design and the uniforms is where I do the bulk of my work. But I have also written about many other aspects.

      Anthony Verna:

      It’s a subset. The sports design is a subset of everything that you’ve…

      Paul Lukas:

      Yeah, yeah. But it’s the big… it’s just one section, but it’s where I do about 80% of my work. So, it sort of feels like it’s big.
      Anthony Verna:
      So in, in looking at design in general, are there any thoughts that you could have for businesses in designing logos, to make something pop, for lack of a better word, but yet not, but yet feel original? It almost feels as if there’s a lot of derivativeness in today’s business design.

      Paul Lukas:

      I would agree, although I think it’s easy for anyone at any given moment to feel that way, that it’s hard unless you step back and have some perspective or look back at with distance of a few years, hindsight, to really assess what’s going on at the given moment. You know, is this a derivative time or is this an original time or whatever. I think there has never been a more segmented time and in the consumer landscape, and that’s likely to continue things. We keep getting more and more segmented, more sort of niche markets, niche audiences. And so, everything now tends to be marketed, including logos and design, with that niche appeal in mind. So, things tend to be less broadly appealing and more specific and narrowly targeted.

      And so that it’s easier when you see something to say, “Oh, that that doesn’t feel right to me.” Well, it wasn’t intended for you. It wasn’t for an 18 year old Latina or a 60 year old suburban, whomever, and think things are now narrowly pitched in that way, , in a way that they weren’t before. And I think that’s part of the challenge that designers face now. On the one hand you can target something specifically to a narrow, niche audience. But on the other hand, that means that everyone outside that niche may sort of look at what you’re doing and kind of raise an eyebrow.

      Anthony Verna:

      If there’s one example that comes to my mind, it’s that, as a trademark attorney, we’re always told that something that doesn’t connect to the brand is the strongest. She wants something that what we would call fanciful. And that means there’s just a total disconnect because it’s something that’s totally created for the use of this particular brand. And the classic example there is Kodak. Kodak is a brand name that isn’t a word in English, isn’t even a word in any language whatsoever. So, it doesn’t mean anything. And Eastman Kodak created that name in order to relate it to film. And more and more, I’m finding that names are being created so they straddle this line that it’s basically descriptive of what the company does. And a lot of people are critical of brand name that isn’t related to what the company actually does.

      And therefore a lot of people are bringing their logos in tune to that. So that if we’re talking about a company that provides business services or you’ll see just like a globe, cause Hey, we can do stuff around the world or if you’re like us lawyers and then you have to have a gavel or you have to have the scales because that’s just what everybody does. And it feels as if more and more, in business coaching scenarios, a business person is told find a brand name or logo design that tells everybody what you’re doing.

      Paul Lukas:

      Yeah, I think it certainly part of the logo is to communicate. But it’s interesting, you know, when you first asked me to come on and talk to you about this and you said we might be talking about some classic logos and I was thinking of some, and you know, one that has endured for so long that that immediately came to mind is the CBS logo, the eyeball as it’s known now that has endured for over half a century, and and it’s considered a classic and it’s considered enormously successful. But it strikes me as sort of an odd candidate to achieve that status. It is pleasing, like it has a balance to it. I remember even when I was a kid and I watched a lot more television as a kid than I watch now and and we didn’t have cable when I was growing up.

      I’m dating myself now. Cable didn’t exist yet, but like seventies. So we’re watching mainly the three broadcast networks, including CBS and the CBS logo  was part of the backdrop of my youth. And there was something appealing about it that I still find appealing about it in terms of just as a piece of design that has this balance that has a certain pleasing this to it. I don’t know how else to put it, but I’m not sure any of that actually communicates anything about a broadcast network or media that… I think it’s actually an odd, somewhat unlikely candidate to be what it has turned out to be. What do you think?

      Anthony Verna:

      I tend to agree with you and I was a, as you’re discussing this, I’m thinking about the NBC peacock, which right now looks like several I don’t know how to describe it, but that logo just kind of has several lines of lines of color. It’s had previous versions with an N in it or with an NBC. And it really has gone through iterations, whereas now….

      Paul Lukas:

      But again, hearkening back to the era in which I grew up. In the 70s was when America was switching over from black and white to color television. And the peacocks symbolized that, symbolized color TV and the explosion of color that epitomize not just the changes in television, but really throughout America’s visual programming, if you want to call it that. And clothing became much more colorful. And that was in part because of new fabrics that allowed new kinds of color dyes to be used. And so, we had all kinds of like psychedelic and very loud, if you wanna call that loud, colorful clothing. But also, that was the fashion industry responding to the advent of color television because you could now, things could not be seen on television in a colorful way that, you know, didn’t happen before.

      So, there was sort of like a chicken and egg issue here, like that TV both responded to and helped, become the impulse for a much more colorful world out there. And so, the peacock I think was a great example of that. But what did the CBS eye really symbolize? They worked for CBS news where they would say eye on this and you know, a CBS eye on America. It looks sort of investigative, arguably even big brotherish, right? The eyeball. But if you’re just putting on All in the Family or other sitcoms or MASH or the other sitcoms CBS had at that time, what does the eyeball stand for? I think a lot of logos, I’m not saying this is always the case, but I think there are plenty of cases and the CBS logo is a good example where a lot of times it’s just a case of the brand or the company is successful and somewhat omnipresent.

      And so the logo is omnipresent and therefore assumed to be successful. And I’m not so sure that is a successful logo or if it just has more of endurance going for it. And I think that’s true of a lot of logos. I think a lot of logos sort of are what we make of them, especially in the era before the internet, before social media and before all sorts of ways to analyze and critique and make fun of logos. I think it was much easier to put a logo out there and just have it be, you know, this is it, this is what we’re doing and boom, that’s it. The end. And if a company wants to stick with it for 30 years, well after 30 years, it’s sort of assumed the sort of a kind of institutional, monolithic sense of, of timelessness and, and that is equated with success. And I think there are a lot of logos out there that fall into that category that maybe they’re good or maybe they’re not, but I think they’re sort of assumption of success has more to do with longevity than with anything else.

      Anthony Verna:

      Looking in the tech industry at Microsoft and Apple for example, Microsoft recently redesigned the Windows logo to be flat and streamlined and therefore what used to be Windows, which was four colors and kind of curvy actually when you think about how it looked, that now feels a little dated and the new logo feels streamlined and Apple has certainly revised its Apple logo. It used to be a rainbow color, and now it’s a silver color.

      Paul Lukas:

      Apple obviously is one of the more aggressive companies in terms of keeping design at the forefront of what they do, and wanting design to be part of how we think about them. You know, they’re a tech company, but they’re really perceived in many people’s minds to be a design company.

      Anthony Verna:

      Which actually started early, sorry, sorry to interrupt you. I forget if it was Jobs or Wazniak,it  may not have been either of them, said that when they were typing on other computers, they wondered why they couldn’t type in other fonts and that a part of the font was the design. And that seems to have trickled down, for lack of a better phrase, through Apple, in all areas.

      Paul Lukas::

      Yeah. I think most people would perceive Apple to be as much of a design company, as a tech company. And that’s something that I would say Microsoft does not have that. The people do not perceive them that way. That can be for better or for worse. But Apple has clearly everything from the physical hardware of the gadgets themselves to the interface and how we interact with them. It tells you everything about it says this is a company that thinks about design as it’s designing tech products.

      Anthony Verna:

      So for smaller businesses. Just out of curiosity, are there any thoughts and ideas for a smaller business when they’re starting from a 0 point for a  new brand or to create a brand that they should keep in mind?

      Paul Lukas:

      I would say don’t overthink it. Just come up with something that’s distinctive, that people are going to notice, without it being loud or too aggressive or too confrontational or something like that. But as I said earlier, I think a lot of times, the success of a logo is really just tied to the success of a company. And that obviously you want a good logo, you want a good mark. You want to make a good impression on people. But even the best logo isn’t going to save a bad company or a company with a bad product. And while I think that the reverse could be true, that a good company can save them a bad logo or a logo that is sort of nondescript, because I think ultimately the product and the business, it’s people’s perception of that is much more important, especially for a small business. A community business is more important than the perception of the logo itself.

      Anthony Verna:

      Whenever I’m talking with a new client or when I’m talking with say their marketing company cause certainly sometimes I need to do that, I always find in today’s world overthinking is the norm because they’re looking for something, something to grasp and everything has to have meaning to it. And it feels as if …

      Paul Lukas::

      You’ll excuse me for interrupting because everyone thinks now, even people who never heard of this term 10 years ago or never thought of themselves as being in the marketing business, everybody talks about branding, right? It’s like the most overused term. “Oh, I’m going to brand myself as this.” or “We’re going to rebrand as this.” And you know, it used to be in the line of work, I mostly do with the, the uniform writing, it would be a team is getting a new uniform and sometimes you still hear that, but more often you hear a team is rebranding and that notion where I think everybody feels that they are on some level, no matter how small their business or even if it’s just a business of one, if it’s just you yourself as a sole proprietor that somehow you have to assume this sort of corporate level of branding. I think it’s misguided. I think it’s overdone. I mean ultimately I think that obviously you do want to stand for something, you want you and your work and your business to and your design and all that. You want to stand for something. But ultimately the quality of your work and your product is what’s gonna define you more than a scheme or calculated branding.

      Anthony Verna:

      I’m going to completely agree with you on that. Even though what I do is nothing but protect brands but I also protect businesses.

      Paul Lukas:

      Obviously it’s important to be protected. I don’t mean to dismiss that. I’m just saying that I think people fixate on this notion almost a buzz term of branding, to the point where they forget what it’s supposed to be. The brand is supposed to support what you do not the other way around. And I think some people get that relationship backwards.

      Anthony Verna:

      I certainly agree with you on that. There’ve been times when I’ve been looking at say a brand-new fight, whatever that dispute may be in and whatever court it may be. And I look at the client and I say, are you sure it’s worth the fight? Because branding and in general, trademark law is all optional for business. And that option can easily be changed. Now for some businesses it’s harder than others, but I’ve certainly negotiated changes where the one side will say, look, we’ll let you go and, and just use everything that you have right now, but make sure there’s the new logo on the new batch. It feels as if a lot of people fall in love with a particular logo that they’ve designed the first time and don’t necessarily go for a change. They become latched onto…

      Paul Lukas:

      Well, it’s understandable. Sometimes you feel that can an emotional connection to something that you’re the first iteration of something. And so I understand, I understand that impulse, but obviously sometimes you have to think more with your head than with your heart in these situations.

      Anthony Verna:

      No doubt, no doubt about that. So, what else when we’re thinking iconic design, what else comes into your mind?

      Paul Lukas:

      About it? Examples of?

      Anthony Verna:

      Yes, sorry. Yes, yes. Example. Yes. Examples of iconic design. Sorry.

      Paul Lukas:

      You know a lot of times, again, I don’t mean to harp on this theme, but sometimes longevity or perception of what’s iconic can trump what’s, you know, something that under closer scrutiny, it doesn’t really hold up. And I’ll give you a great example, again from the world where I do most of my work, which is sports design. I think most people would agree that nothing is more iconic in the world of sports than or sports visual than the New York Yankees in their visual program.

      Anthony Verna:

      They have one?

      Paul Lukas:

      Oh well clearly. I mean their uniforms, their caps. They hadn’t changed very much if that’s what you need. They don’t go all out with all sorts of crazy designs, but they certainly have, I think what most people would consider to be something very iconic. But what’s interesting is that probably the cornerstone of that, the so called or supposedly iconic program is the interlocking NY logo that appears on their jerseys and their caps and their batting helmets and so on. And what’s interesting is that if you look closely, and I’ve certainly looked very closely, the one on the Jersey, the NY on the Jersey is not the same as the NY on the cap. And that is not the same as the one on the batting helmet. And then, I get mixed up now which of the three is used on the grass behind home plate, but they mix and match some very, if you overlay them, if you were to take the N Y and sort of lay them over, you’d see very clearly that the contours of the letter forms are quite distinct.

      The biggest differences between the one on the cap, which is sort of streamlined and narrow compared to the one on the jersey, which is more kind of loopy and wide. So here we have an obvious inconsistency and in the middle of this program that is thought of as being iconic and everybody talks about, Oh, the interlocking NY is that this singular thing, the symbol of perfection that, that will never be changed, has never been changed. And it’s not even consistent with, you know, when Derek Jeter was standing up there during his career, standing at home plate, or standing at shortstop, never once did the NY on his chest matched the NY on his cap or his helmet. And that’s something that I think just doesn’t matter to people if they’re even aware of it.

      And if you pointed out to them, they say, Oh, well that’s interesting, but they don’t really care because the Yankees have this perception of iconicity or iconicness. And obviously part of that perception is bound up in their considerable history of success on the field. But it’s also, I think another case, sort of like the CBS example where it has to do with longevity and if you sort of say something often enough, people accept it as the truth and then you point out well, actually there’s a little flaw here, or maybe kind of a big flaw. And people were like, Oh, Oh, okay. But it’s still iconic though, and they go off. It’s sort of a case of iconic is as iconic does, or as iconic is perceived. And I think I read an interview once with Paul Rand, probably the greatest American graphic designer of the last century, who did so many important logos, corporate logos.

      In the 19 hundreds, he did the classic ABC logo of the three letters in the circle.  He did the UPS logo. He did many corporate logos. And, they asked him what would you change if you could do something differently? And he went into some detail about some aspects of the UPS logo that he felt were flawed. And ever since I read that interview, I can no longer look at the UPS logo without seeing these flaws. And I’m not going to spell them out in part because they’re pretty detailed, but also because I would ruin it for you and anyone else listening to this. But the point is  that once you accept that something’s iconic, you tend to stop scrutinizing it. And in fact, under scrutiny, a lot of things have a lot of flaws or inconsistencies or cracks in the facade and even Paul Rand himself had regrets and things he would go back and do differently.

      like these details of the ups logo that I mentioned. And so, I think this notion of iconic has a lot more to do with kind of a perception and almost a herd mentality where everybody just sort of nods and says, yep, that’s how it is. And that’s not to say there are no great logos or designs out there, but that maybe we need to think a little harder sometimes, and think for ourselves and not just agree with everybody that this is the way it is. One person’s iconic, may be somebody else’s garbage and vice versa. Uh, and, and it’s really just a matter of what works for you.

      Anthony Verna:

      Well, it’s funny that you said that. When I think of the ABC logo, I just kind of look at it and I said, well, all it  is ABC in a circle. It doesn’t tell me anything about what’s behind it. You know, the CBS works for at least news because we have the eye on a particular subject and we’re going to go deep and discuss the topic in depth, then the ABC logo just tells me…and NBC was great for the peacock is great for color. The ABC logo tells me nothing about the company whatsoever. That’s funny…
      Paul Lukas:
      You could even argue that it presents this notion of a kind of childish or childlike perception because now I know my ABCs, like a child’s reader.

      Anthony Verna:

      I never thought of that before.

      Paul Lukas:

      I’ve always wondered with Paul Rand, how many iterations of that did he do? What other concepts did he explore before he said, I’ll take the three letters and put them in a circle? That’s genius?
      )
      I’m not saying it isn’t a good logo. I’m saying that, sometimes in the case of that logo, I think part of it is that Paul Rand himself is perceived to be iconic and that everything he touched therefore is considered to be gold. I think that that again, a lot of this I think has to do with perceptions and a good logo, I think, is often just a logo for a good company and that the company makes it good if the company’s successful and keeps the logo for a long time like ABC did. I think that’s another case where like longevity and durability can just sort of translate to the perception of success.

      Anthony Verna:

      No, I do agree with you on some of that, that the company that’s behind the logo needs to be good in order for that perception to actually come through. Because a bad company with a good logo isn’t going to be around for a long time. Then people that really aren’t…

      Paul Lukas:

      Also, there are things where, now this shit may just be me. I remember when Under Armour was starting up. And again, to go back to sports, right. That’s where I do most of my work. They’ve got that logo where it’s sort of…

      Anthony Verna:

      It’s supposed to be a UAA…

      Paul Lukas:

      It’s a vertical symmetry where the U and the A sort of mirror each other.

      Anthony Verna:

      But it looks like an X to a lot of people.
      Paul Lukas:
      Oh, you know, honestly, I’d never thought of that. All right, well now what I was going to say is, when they started up, I perceived that to be sort of a scrappy logo as sort of a logo for an upstart company because that’s what they were. Now I’m not sure how much of it is because that’s how I already perceived the company. Therefore, that’s how I perceived the logo. Or if the logo truly what did capture that feeling. But, of course, they’re not such an upstart anymore. And I think that’s something small companies need to think about too. If you’ve got big plans and big dreams, you don’t want a logo that looks too much… Like if you’re planning to go corporate, you don’t want to look too Indy at the start because maybe you won’t be indy for very long. And so, I think that’s something to keep in mind as well. But you need something to kind of works across all classes and platforms and things like that. Even though I said earlier that you nail everybody narrow targets, but in terms of size and sort of scope of your business, you want something that can work as your company grows that the logo can grow with.

      Anthony Verna:

      It’s interesting that you say that. I just, I want to say it was yesterday, could have been a couple of days ago, but anyway, saw a sign for a marketing company that promised to be edgy and part of the design in the sign was what was supposed to look like graffiti. And I thought to myself, well, is that really edgy in 2014 to begin with? And two, if I’m building a business, I can’t always be edgy because I need people to come in the door.

      Paul Lukas:

      Yeah. At some point, if you’re successful, you’re not going to be edgy anymore. Right? You’re going to be like sort of part of the mainstream we’re getting, whether by design or whether by cause you’ve been co-opted and the mainstream sort of caught up with you or whatever. But, yeah, basically you don’t want to look too much like an outsider if your goal is to eventually become an insider.

      Anthony Verna:

      I very, very wise advice. It feels as if a lot of there’s just a lot of segmentation as well as a lot of promises of edginess. But, of course, a lot of us are really trying to build businesses that don’t segment. And you know, we want more than one particular demographic coming in and people who are building businesses want various people just to keep coming in and therefore you can’t be too edgy or too segmented.

      Paul Lukas:

      Yeah. You know, the thing about edgy is it’s sort of a synonym for, like a proxy for the notion of the renegade, right? And that’s very popular in business. They’re like, “Oh, I don’t do it the way the other guy does.”, or “We’re outside the box.” or “They zig, we zag.” or any of these cliches, but they all come down to this notion of the renegade that you do it your way. Just the way everybody else does it and that’s what distinguishes your business. But at some point, this notion of the… First of all, not everyone can be a renegade. If there’s like a million businesses on the block where they’re all renegades come on, even though it sometimes seems that way, that that’s sort of how people try to market and present themselves. But also, if you’re going to be successful, at some point, you’re not going to be the renegade anymore. You’re going to be, again, you won’t be the outsider. You’re gonna end up being an insider. And so, you have to come up with an approach for your business and for your logo and your brand that can grow as you and your business grow.

      Anthony Verna:

      Paul, thank you so much. I know that you need to run because you’ve got other work to do and so I won’t keep you. Thank you so much for coming. How can people find you again?

      Paul Lukas:

      They can go to the Uni Watch blog at uni-watch.com. That’s U N I, hyphen W A T C H dot com. And then once they’re there they can find my other work on ESPN and other places and they can also find me on Twitter @uniwatch so the hyphen is in the website URL, but not in the Twitter handle, which I know is confusing. Great example of bad branding yet everybody seems to find you.

      Paul Lukas:

      I hope. Thanks so much for having me on.

      Anthony Verna:

      Paul, thank you so much. Take care.

      35 min
    • Episode 7: Inspiration, Independent Author Entrepreneurship, and Copyright Law with J. Thorn
      In this episode, I speak to J. Thorn, horror and dark fantasy author.
      J and I talk about what inspires his writing.  I laughed heartily when he said that the most-asked question to him is, “How do you sleep at night?”
      But J is an author who sees himself as an entrepreneur and uses many avenues of marketing.
      In this intersection of law and business, copyright law is the target.  Copyright law doesn’t protect inspiration, only the expression of ideas.  It is an important area of law for artists because artists control the results of their work – the fruits of their labors.  Without copyright law, would art proceed at the rate that it does proceed?  Someone else using another’s work seems to intrude upon our internal sense of fairness.
      33 min

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