“[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his….”[1] John Locke – a political and social philosopher of 17th Century Enlightenment England and the father of “Classical Liberalism” – was the most influential advocate of natural rights and social contract theory. He believed that in order to establish a civil society, men must give up some of their natural power to the society in exchange for the guarantee of their God-given natural rights. A civil and just government must become a type of “social watchdog” that is charged20087270_jl (2)
with the protection of the individual’s inalienable rights, including, life, liberty and property. These concepts, inspiring in thought and revolutionary in action, were the single most important influence that shaped the founding of the United States. Influenced by Lockean thought, intellectual property – the products of the mind – possessed a value that arose during the framing of both the Declaration of Independence and the U.S. Constitution and would later influence modern day copyright law.

Locke directly influenced the author of the Declaration of Independence and the framers of the Constitution with his central political principle that rights in property are the basis of human freedom and government exists to protect them and preserve public order. Locke’s theory stemmed from the commonly accepted concept of “Natural Law” under which it was believed that every person has natural rights, not given by a ruler but rather derived from a higher power which, in the case of Locke, was the God of the Bible. These rights, according to Locke, were “inalienable,” i.e., they cannot be taken away.

In Locke’s understanding of Natural Rights, the right of property is paramount. For him, “property” encompassed not only physical possessions, but intellectual capital as well. Locke proposed that within any organized community, there is a type of “Social Contract” between all members of the community in order to gain collective advantages that the members of the body politic would not be able to secure individually. This contract forms the basis of the equitable distribution of rights and obligations between the people and their government. The political power of the government is granted to it by the people and is, therefore, a “trust” for the benefit of the people. In turn, the people give this power so that their own welfare is increased and their individual property is protected in a way not possible in what Locke calls the “State of Nature,” where the will of the stronger (or the many) is often forced upon the will of the weaker (or the few).[2]

Locke’s ideals of the “Contract of Society” and “Contract of Government” formed the basis of Thomas Jefferson’s passionate believes conveyed clearly in the Declaration of Independence:

“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –“[3]

Having been bound by the monarchy, Jefferson understood the importance of this radical, yet equitable and sensible, way of thinking. Locke’s ideas were widely circulated and debated throughout the Colonies by this point, and Jefferson would later confess that while writing the Declaration, he “…did not consider it a part of my charge to invent new ideas, but to place before mankind the common sense of the subject.”[4] Jefferson admits to referencing Locke and simply being the tool to communicate and apply the sensibility to the newly independent colonies.

Locke’s influence on American principals can also be seen in his work, A Letter Concerning Toleration. In it, he develops a means of understanding moral truths with strong political implications. Although420-founding-fathers-madison-jefferson_imgcache_rev1308943458862
his letter focuses primarily on the separation of church and state (something that also had a great impact on Jefferson), it has wider implications in that it provides the philosophical foundation for free speech and freedom of action that follows from free and independent thought. This, in turns, provides a basis for a future understanding of the protection of independent thought as intellectual property. The only precondition of thought, truth, creativity or innovation is political freedom. While in Locke’s letter this freedom of thought refers to specifically to religious ideas, it clearly develops the principal that government is not in the business of enforcing morality but rather protecting an individual’s personal rights from being violated by the collective society.

In a society governed by Locke’s social contract, then, laws established by the government are intended to provide safety and security of the commonwealth as well as every individual’s goods and person.[5] Later, the newly formed United States would incorporate Locke’s freedoms of expression in the First Amendment of the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging, the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”[6] Although the First Amendment, just like Locke’s letter, does not reference ownership of property, it will be referenced time and time again in court rulings securing our freedoms of expressions, and will play a crucial role in the development of copyright law in America.

A year after writing the letter referenced above, Locke published the Second Treatise On Civil Government. In it, Locke wrote that the basis of the equality, independence and ultimately the freedom that exists between all individual men, is their mutual possession of reason.  He asserted that through Natural Law, God has given the world to every man in common and he has given them reason to make use of it to the best advantage of life and convenience.[7] This is reflected clearly as Jefferson pens the word of the Declaration: “… the powers of the earth the separate and equal station to which the Laws of Nature of Nature’s God entitle them….”[8]

Locke continued to expand on the idea that man has a natural right to take advantage of the Laws of Nature by explaining that the labor of the body or the mind, and the resulting work of the hands, are the property of the individual and anything that nature has provided and man has joined to it makes it his property. Once man has removed it from the common state of nature, mixed it with his physical or intellectual labor, he is therefore annexing it and excluding it from the common right of other men.[9]

Locke further developed these ideas by providing insight into unilateral appropriation, the idea that there is something individuals can do on their own to establish rights over natural resources that others have a moral duty to respect.[10] In American jurisprudence, the idea of unilateral appropriation is used to justify private property rights and morally binding restrictions and limitations that are perhaps with greater authority than any other social agreement, to wit, there is a universal justification for people owning what is theirs. The implication of Locke’s universal appropriation theory is that a person owns his or her labor and any un-owned thing he mixes it with. This labor can improve resources, adding value through the pains of individual labor. Through this labor and improvement of natural resources more natural resources are available for others. Hence appropriators are entitled to some type of unconditional right to produce their own subsistence.[11] In the U.S., Locke’s concepts are incorporated in §102(b) of the Copyright in the form of our “idea/expression” dichotomy, in that a person is free to incorporate common and universal ideas into their own individual expressions.

A little over 100 years later, both Thomas Jefferson and James Madison would embrace the ideology presented by Locke in the Second Treatise, although Jefferson at first struggled with the idea that the protection of intellectual property might somehow become a monopoly and thereby denying others access to a natural flow of information and innovation. This is reflected in a letter to Isaac McPherson on August 13, 1813, often cited by opponents to the concept of intellectual property, in which Jefferson ultimately argues the notion that inventors and their heirs have a natural and exclusive right to their inventions. In the letter, Jefferson insists an idea in nature is excluded from exclusive property stating, “the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.” Jefferson continued that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition.” He compares an idea to the air we breathe, “incapable of confinement or exclusive appropriation.”

There are two things to note about the famous quotation of Jefferson. First, he clearly notes that it is ideas that exist in nature that cannot be possessed, but implicitly does not stray from the Lockean idea that once a person mixes labor with it it, it can be possessed. He ultimately agrees with Locke that the one who initially possess as well as expresses the idea should have, “exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility.”[12] Because of the Colonies’ past experience with England, Jefferson’s principal intellectual conflict over the concept of ideas as property was the threat of monopolizing anything, including intellectual ideas.

Unlike Jefferson, however, Madison, the primary architect of our Constitution, fully embraced the idea of the protection of intellectual property and recognized that the nature of an individual piece of intellectual property is such that it could be useful to all people and yet could be owned by one person. When writing the Fifth Amendment, “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” Madison was directly referencing Locke’s idea of appropriation and preservation of their estate[13]

On the other hand, Madison did agree with Jefferson that ownership of property in general could amount to indefinite monopolization of that property by the owner. But Madison nonetheless recognized and later persuaded Jefferson, that intellectual property was a thing of value to all of society and was susceptible of being appropriated in the public interest without just compensation to the individual who was the inventor or author. In Madison’s words “….the (creative) few will be unnecessarily sacrificed to the (greedy)many”[14] (notations added). In these words, Madison ingeniously combined Locke’s idea that a person is entitled to the fruits of their labor as applied to the state of nature with the much more politically accepted notion of utilitarianism that laws should benefit the majority.

So even though Madison sought to protect and provide compensation for intellectual property, he agreed with Locke’s thought that there was a limitation to this protection. Locke describes this limitation as follows: “as much as any one can make use of to any advantage of life before it spoils, so much he may by his labor fix a property in. Whatever is beyond this is more than his share and belongs to others.”[15] Although Locke’s comment here refers specifically to tangible natural resources as mixed with the labors of man, the premise is nonetheless later used by Madison when writing, Article I, Section 8, Clause 8, of the Constitution, which provides that “…Congress shall have Power … To promote the Progress of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[16] This Constitutional provision, birthed in the ideas of Locke in 1690, encapsulated by Jefferson in the Declaration of Independence in 1776, and later drafted into the United States Constitution by Madison in 1788, continues to form the basis for the protection of intellectual property in the United States today.

This is the historical and philosophical evolution of Article I, Section 8, Clause 8, the so-called Progress Clause, which is and always has been the basis for U.S. copyright law. The Progress Clause is the only clause in the Constitution that grants power to Congress and specifies the means to accomplish its stated purpose. The exact limitations of this clause have been the subject of countless U.S. Supreme Court cases. One case in particular, Petrella v. MGM, is a United States Supreme Court copyright decision that references Locke and Madison’s ideas on the limitation of intellectual property ownership. In Petrella, retired boxer Jake LaMotta and his friend Frank Petrella (Plaintiff) wrote a story about his career which resulted in three copyrighted works: a screenplay, written in 1963, the book Raging Bull: My Story, published in 1970 and yet another screenplay, written in 1973.

In 1976, LaMotta and Petrella assigned the copyrights in their works, including renewal rights, to Chartoff-Winkler Productions, Inc., which assigned them in 1978 to United Artists Corporation, which later became a subsidiary of Metro-Goldwyn-Mayer. In 1980, as a result, MGM released (and registered copyright in) the film Raging Bull, which achieved popular and critical success. Petrella died in 1981, during the initial terms in the three original works (these works will still under the auspice of the 1909 Copyright Act). After his death, the renewal rights in the works reverted to his heirs.

In 1991, Petrella’s daughter sought to renew the copyrights, but was unable to timely file except with respect to the 1963 screenplay. Approximately seven years later, she advised MGM that its exploitation of Raging Bull violated her copyright and threatened suit. Another 9 years after that notification, on January 6, 2009, Petrella finally filed her infringement suit against MGM, seeking monetary and injunctive relief limited to acts of infringement occurring on or after January 6, 2006.

MGM understandably moved for summary judgment, arguing that, under the equitable doctrine of laches, an unreasonable delay by the plaintiff in bringing the claim, Petrella’s 18-year delay in filing suit was unreasonable and prejudicial to MGM. The District Court granted MGM’s motion, holding that laches did in in fact bar Petrlla’s complaint.[17]

In this example, we see the interplay of the Locke/Madison ideology concerning the limitation of intellectual property rights and the checks and balances of our judicial system, and the effect of laches on those rights. Although Petrella fell within her legal right under legislation regarding the transfer of the copyrights, she was stymied by her unreasonable delay in bringing the claim that resulted in her loss. This is an example of how our legal system and doctrines serve to protect the ideas of Locke and our Founding Fathers that there be limits on intellectual property, preventing it from being held hostage for an indefinite period of time.

John Locke is America’s intellectual founding father, imparting knowledge and enlightened thinking to our Founding Fathers and leaving his philosophical fingerprints all over our founding documents. The human right to property, including intellectual madisonproperty, was understood by the Framers of the Constitution and evidenced in the Declaration. In order to advance society, the progress of science, creativity and innovation, i.e., intellectual property, must be encouraged with the protection under the law. Although Jefferson argued that thought is free flowing and feared “ideas” might become a monopoly, he had a greater passion for advancing the illumination of minds and the disseminating knowledge through a growing nation. Madison clearly understood that the continuum of existing knowledge to invent and innovate must be protected within the confines of the law so that the newly-created Republican majority didn’t take advantage of the individual’s rights. What began as radical enlightened thinking in the mind of Locke over three hundred years ago, implemented 100 years later by our Founding Fathers when securing the unalienable rights of the people, continues to encourage innovation under the protection of the law over 200 years later.

The author, Madison Brinnon, is an Entertainment Industry Studies major at Belmont University, minoring in Mass Communication.  She will be in Brazil and Argentina during Spring 2015 studying culture and music of Brazil while doing coursework in Music and International Business.  Through the summer she travels with the Turtles on their Happy Together Tour as an intern, and returns to college in the Fall at Belmont’s Los Angeles Campus.  Ms. Brinnon has also traveled to several countries in Europe and to a small medical clinic in Zimbabwe where she presented medical supplies that she collected through a small philanthropic organization in California that she helped found.   Madison indicates that her inspiration for this article, originally turned in as a research paper for Mr. Shrum’s Copyright Law class, was fueled a love for history, especially American History, and states, ”So many times we take our rights for granted and never consider the impact our founding fathers have on our lives today.  It is important to understand the foundation upon which modern day law, and in this case, copyright law is based.”


[1]John Locke. Two Treatises on Government. London, 1821. PDF e-book. 209.

[2] George Stephens. John Locke: His American and Carolinian Legacy.” In John Locke Foundation. Raleigh: John Locke Foundation.

[3] “The Declaration of Independence: A Transcription.” National Archives and

Records Administration. Accessed April 14, 2015.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

[4] Richard J. Behn “Declaration of Independence Preparations Drafting Declaration Independence.” Accessed April 13, 2015. http://lehrmaninstitute.org/history/declaration-of-independence.html.

[5] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.” 1996. Accessed March 28, 2015. http://www.chuckbraman.com/political-philosophy-of-john-locke.html.

[6] “First Amendment – U.S. Constitution” Findlaw. Accessed April 14, 2015. http://constitution.findlaw.com/amendment1.html.

[7] George Stephens. John Locke: His American and Carolinian Legacy.”

[8] “The Declaration of Independence: A Transcription.” National Archives and

Records Administration. Accessed April 14, 2015.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

[9] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[10] Karl Widerquist. “Lockean Theories of Property: Justifications for Unilateral

Appropriation.” Public Reason 2, no. 1 (June 2010): Accessed March 28, 2015.http://www.publicreason.ro/articol/21.

[11] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[12] Thomas Jefferson, “Article 1, Section 8, Clause 8: Thomas Jefferson to Isaac McPherson.” Accessed March 28, 2015.

http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

[13] “Fifth Amendment – U.S. Constitution” Findlaw. Accessed April 14, 2015.

http://www.law.cornell.edu/wex/fifth_amendment.

[14] Howard W. Bremer., JD. “Chapter NO. 3.9 U.S. Laws Affecting the Transfer of Intellectual Property Editor’s Summary, Implications and Best Practices.” Accessed April 09, 2015. http://www.iphandbook.org/handbook/ch03/p09/eo/.

[15] Chuck Braman. “The Political Philosophy of John Locke, and Its Influence on the Founding Fathers and the Political Documents They Created.”

[16] “Article 1, Section 8, Clause 5.” Article 1. Accessed April 14, 2015. https://www.law.cornell.edu/constitution/article1.

[17] Petrella. v. Metro-Goldwyn-Mayer, Inc., (U.S. 9th Circuit Court of Appeals).[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Innovation

You cannot discover new oceans unless you have the courage to lose sight of the shore.

As it does every year, this new year marks a new beginning. I plan to continue my Twitter series entitled #creativity, so if you don’t already, follow me there @bshrum, or on any of the social networking platforms. However, I wanted to announce the series here and say a few words on the topic.

There is a trend in modern thinking to discount the significance, and even the possibility, of original thought. The movement is similar to the quo
te from Proverbs that there is “nothing new under the sun.” In other words, people are basically saying that an original idea is not possible, since every idea has already been expressed. This idea stems from the corresponding line of thinking that all ideas should be free. If this is true, there is not room for creativity, thought, inspiration, invention and innovation. All such “new” ideas would, in fact, be in the zeitgeist already.

Obviously, I do not agree with this line of thought. I come from a family of creative thinkers and I know from experience that new thought can, and is, generated every day. Our own experience in society falsifies the notion that there is nothing new under the sun, as we see in American history a lineage of great, original thinkers and invention. The light bulb, the automobile, electricity, the assembly line, the telephone etc. etc. All of these innovations are based on sparks of creativity. As American author Jonah Lehrer says,

“Creativity is a spark. It can be excruciating when we’re rubbing two rocks together and getting nothing. And it can be intensely satisfying when the flame catches and a new idea sweeps around the world.”

This is a wonderful insight. It is most certainly difficult in most instances to spontaneously generate truly unique thoughts. There is a propensity in the Nashville songwriting community to attempt to “force” this spark by scheduling co-writing sessions with other like-minded songwriters. This sometime results in frequent complaints about the songs being produced and performed in Nashville, i.e., that they are “all alike.” What people are really saying is that many of the songs are not creative. So, while these co-writing sessions may occasionally produce some innovative ideas, it seems that more frequently the practice is a lot like “rubbing two rocks together” in an effort to create the spark, but actually producing a lot of similar songs.

So, the question is can a person actually do anything to foster the generation of new and creative ideas, or are well all destined to the world where there is “nothing new under the sun”? Research shows that there are certain practices which help the spontaneous generation of fresh and new ideas. I’ll share three of them:

The Inner Child

When we think of creativity, we can’t help but reminisce about the days when we were children. A child has not inhibitions or preconceived notions. To a young child, every experience is new and original. The child cannot help but want to paint, sculpt, draw, write, read and see the world in a new light.

It is that “inner child” that can help the creator generate new ideas. Think about this: why is that many great artists, no matter what the craft, often turn to substance use and abuse in times when they want to create? The reason is, of course, that using a mind altering vehicle often lowers inhibitions and “lowers our guard.” No, I’m not saying go out and tie on one in order to create your next great novel. What I am saying is that if you want to create new ideas, you have to see things from the perspective of a child. Stand on your head. Do somersaults. Perform some of your favorite childhood activities. Get in touch with you inner child and your creative juices will be stimulated.

Brainstorm

Another way to get in touch in with your inner child is to just begin writing down any idea that pops in your head, without leaving any room for judging or evaluating the validity of those ideas. This process often puts you in touch with your subconscious thoughts that are frequently suppressed by our conscious mind, where all of our rules and safeguards exist. Original thinkers often talk about thinking all the times. They have very fluent and free flowing thoughts, producing a stream of ideas that are different and sometimes unusual to the less creative observer. But this is how they derive the practical and innovative ideas. Often times, the creative thinker will spend a lot of time “incubating” ideas. As the old expression goes, they “put in their pipe and smoke it.” They percolate the idea in their head until suddenly there is a moment of “eureka” and the idea comes out fully developed. This is the moment that some people feel they are being touched by inspiration, or being guided by their “muse.” The jury may still be out on that, but in reality the key for the creator is knowing how to find these moments of illumination and capture them, regardless of from where you believe they come.

The expression “a writer writes” reflects this concept. If you look at the journals of any great thinker – Thomas Jefferson, Leonardo da Vinci, etc. – you will find scores of ideas that they did not develop. These great thinkers of the world captured their thoughts frequently. In our age of modernity, we have technologies that can assist in that tasks, but we must not lose sight of the important of writing things down as they occur. Keep a journal.

Craft

To the last point, some people believe that creativity is not a trait we inherit, but rather is a skill that is developed. That may just be something the non-creative people say, but the fact of the matter is that you CAN learn skills associated with the arts. A person can be taught to sculpt, paint, write songs or novel, etc. If Einstein had not known the “skills” of math, he would not have been able to capture his unique equation, E=mc2. His flash of insight may very well have faded into the moment, thereby changing the course of human history as we know it. My point is this: new, original and creative ideas must be captured and crafted in order to be innovative.

Once you have mastered the art of getting in touch with your inner child, brainstormed a flurry of ideas, and had your “eureka” moment of insight, you must have developed the skills necessary to capture it and put it down on paper. The art of “clothing,” or expressing the idea is a craft that must be honed and developed in order to achieve success, no matter what your area of creativity.

So, hopefully these musings of a lawyer on the subject of creativity inspire you to go out and create. Help me in my quest to stamp out this new trend in thinking that there are no new ideas. Go create some!

By Samantha Jervey*

When Walt Disney decided to personally license the image of Mickey Mouse in 1929, he had no idea that he would start a licensing revolution.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1]
disney_thumb.jpgThis deliberate act made by Walt is what ultimately laid the foundation for his company, thus bringing to life what is now known today as Disney Consumer Products. Disney Consumer Products is one of many business divisions that belong to The Walt Disney Company.
[2] In essence, they are in the business of “deliver[ing] innovative and engaging product experiences across thousands of categories from toys and apparel to books and fine art.”[3] That being so, character licensing plays a huge role in Disney’s business dealings, which thanks to Kay Kamen, is an area that the company is well versed in. Kay Kamen joined the Disney team in 1932 when he was appointed to take charge of Disney Licensing.[4] It was then that he set the standard for character licensing within the entertainment industry thereby making it possible for Disney to grow into the world’s largest licensor today.[5] Out of their vast set of properties, Disney owes much of their licensing success to the Disney Princess brand. The brand is a promising niche to marketers, in addition to having mass appeal to consumers, making it an attractive product to licensees all around. Furthermore, analytical licensing charts and merchandise sales trends suggest that the Disney Princess brand will forever be timeless in the eyes of little girls and women alike.

As a large company with such a wide range of licensable properties, Disney is responsible for keeping track of their character database in an orderly and functional fashion. They have done so by dividing their licensing unit into five
dinsey-princesses_thumb.jpg strategic brand priorities, one of which is Disney Princess and Disney Fairies. The Disney Princess brand first appeared as a cohesive collection under Andy Mooney when he was appointed as chairman of DCP in 2000.
[6] In its entirety, the Disney Princess royal court accounts for 11 princess characters that embody a rich legacy and a unique set of inner qualities and values.[7] The elite group includes Ariel, Aurora, Belle, Cinderella, Jasmine, Merida, Mulan, Pocahontas, Rapunzel, Snow White and Tiana, each of whom serves as a role model to young women across the globe.[8] Families today love the traits that these women inspire among their daughters, “such as being spirited, graceful, smart, kind, compassionate, courageous, heroic, adventurous, passionate, confident, and brave.”[9] That being said, the brand is clearly marketed towards a target age group, although it has grown into something bigger than itself. Mary Beech, vice president and general manager of Global Studio Franchise Development, states how Disney is “hitting a key developmental pattern for little girls, ages 2 to 5.”[10] They are doing so through intricate storytelling and top-level character appeal, which in return, is stealing the hearts of little girls.[11] Furthermore, Disney’s understanding of who they are as a brand, along with marketing strategy, has helped to lay a foundation for their licensing success.

Seeing how the brand did not premiere as a cohesive collection until 2000, it did not take long for Disney Princess to conquer the licensing industry. Disney consistently ranks as Number 1 on most lists of global licensing, consistently generating worldwide revenues in the high 26-29 billion dollar range. As a reaffirmation of how well the company had been doing, in 2012, The Licensing Letter released their second annual list of “best-selling licensed entertainment merchandise” based on 2011 retail sales in North America.[12] The list accounted for many classic brands, including Star Wars and Sesame Street, with Disney Princess charting strong at number one.[13] In North American retail sales, the Princess brand made $1.6 billion, while reaching an
Princess_thumb.jpgimpressive $3 billion in global sales.
[14] These numbers were based on the sales of physical consumer goods alone and included “t-shirts, stationary, toys and electronics.”[15] Furthermore, it is important to note that this list did not take into account merchandise manufactured by the property owner, but solely licensed products “that outside manufacturers pay an average royalty of 8.7% of the wholesale cost to produce.”[16] Finally, the numbers also exclude licensing revenue from other powerful Disney brands such as Pooh ($1.09 Billion), Cars ($1.05 Billion), Toy Story ($685 Million), Disney Fairies ($435 Million), nor Disney’s subsidiary, Marvel Comics, which is reported separately and generally garners around 5 billion in worldwide sales, all of which also consistently rank in the top ten.

Disney’s success in licensing relies heavily on the demand of consumers, which is so great that manufacturers have no choice but to license their products in order to create supply. Ira Mayer, publisher and executive editor of the Licensing Letter, believes the reason that the Disney Princess is in such demand is that “there are surprisingly few girl properties like it [sic].”[17] In fact, product licensing is a fraction of Disney’s overall revenue, but that profit is due to its strong brand loyalty.[18] Because Disney’s properties, specifically those licensed by Disney Princess, are in such high demand, the company can afford to license its characters at “an above-average royalty of 15% or higher.”[19] This gives Disney Princess a rare advantage in the entertainment industry due to unrivaled product demand.

In addition to having high consumer value, the Disney Princess brand is more successful than most due to its adaptability in the market place. In truth, Disney Princess could probably license their properties in any market and still be successful, although the biggest licensing opportunities currently lie in the field of merchandise. Out of their assortment of licensed products, the brand encompasses, though is not limited to “toys, apparel, accessories, home décor, Kellydress_thumb.jpg consumer electronics, school supplies, and personal care.”[20] In addition to those lucrative products, they have found a niche within the wedding industry, such as with licensee Kirstie Kelly, who recently created a bridal collection inspired by the Disney Princess brand.[21] In fact, the company derives most of its product ideas from three core categories: dolls, role play, and books.[22] In Beech’s opinion, these three things are what have inspired growth into new markets, such as “live events and products for adults.”[23] Having this type of awareness and understanding of what consumers want has definitely helped Disney Princess stand out among their peers. They know exactly who their buyers are, along with what they are looking for in a product, and that is “style, sparkle and storytelling.”[24] In short, Disney Princess is not limited by age or expectation in the licensing world.

It is important to note that when you are a company as big as Disney, it is vital that you keep a watchful eye on the use of your properties to ensure their reputation. This is a lesson Disney learned the hard way in 2010 when they went to court to file a copyright and trademark infringement claim. In Disney Enterprises, Inc. v. Away Discount, Disney caught their Defendant in the act of making and selling unlicensed merchandise.[25] Though the relevant facts in the instant case were brief, the Plaintiff, Disney, did indeed “own the exclusive rights to a number of trademarks and copyrights” that the Defendants were found violating.[26] The properties that were infringed included Disney’s Disney Princess, Winnie the Pooh, as well as a number of other big licensing names for Disney.[27] What this illustrates is that Disney keeps a watchful eye on suspicious behavior involving their copyrights and trademarks. As one of the biggest licensors in the world, it is a necessity to do so. While recovering monies lost is always important, it more important to maintain the reputable brand name of your characters, which is something that Disney is avidly passionate about. After all, it would be a shame for an infringer to forfeit the magic and persona of the Disney Princess brand that many girls have grown to love worldwide.

In conclusion, Disney’s Disney Princess brand is well deserving of the title as the entertainment industry’s top merchandise licensor. They have poured much time and energy into establishing themselves as a reputable name and it is crazy to think that it all started with Walt licensing the image of Mickey Mouse himself. Since Andy Mooney’s decision to group the ladies under a brand umbrella, Disney Princess has reached success far beyond anyone’s imagination. There are no limits when it comes to licensing opportunities with these girls, which is what makes them such a rare and hot commodity. With every t-shirt, bedspread, doll, or wedding dress, Disney Princess leaves a magical imprint on the hearts of their consumers. That being so, come 10 to 20 years from now, the beautiful stories and lessons left behind by these princesses will live on far beyond their inception.

Sam_thumb.jpg

 *Samantha Jervey is a student at Belmont University majoring in Entertainment Industry Studies with a minor in dance.   This article was written as an assignment in Mr. Shrum’s Entertainment Law & Licensing class.  Her passions include music, writing, learning, and helping others. Having attended high school at Governor’s School for the Arts in Norfolk, Virginia, Samantha is dedicated to promoting the value of arts in education. She spends most of her time in the Nashville community looking for new ways to support and grow her knowledge of the entertainment industry.

 

 

 

 

 


 

[1] Disney Consumer Products, “About Us.” Accessed March 14, 2014. https://www.disneyconsumerproducts.com/Home/display.jsp?contentId=dcp_home_ourbusinesses_company_overview_us

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Disney Princess Power. (2009). License! Global, 12(4), 40.

[7] Disney Consumer Products, “About Us.” Accessed March 14, 2014. https://www.disneyconsumerproducts.com/Home/display.jsp?contentId=dcp_home_ourbusinesses_company_overview_us

[8] Ibid.

[9] Ibid.

[10] Disney Princess Power. (2009). License! Global, 12(4), 40.

[11] Ibid.

[12] Jenna Goudreau, Forbes, last modified September 17, 2012, http://www.forbes.com.

[13] Jenna Goudreau, Forbes, last modified September 17, 2012, http://www.forbes.com.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Disney Princess Power. (2009). License! Global, 12(4), 40.

[21] Disney Princess Power. (2009). License! Global, 12(4), 40.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] 2010 U.S. Dist. LEXIS 86119. LexisNexis Academic. Web. Date Accessed: 2014/03/23.

[26] Ibid.

[27] Ibid.

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