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The fan experience meets the profit motive

Mitchell Lecture

Madhavi Sunder delivers the 2013 Mitchell Lecture, the law school's signature lecture series. Photo: Rob McElroy

By ILENE FLEISCHMANN

Published November 7, 2013

“Intellectual property law should promote not just more goods, but a good life. ”
Madhavi Sunder, Mitchell lecturer

The intersection of two human impulses — play and profit — was at the center of an entertaining and informative Mitchell Lecture on Oct. 8 in O’Brian Hall.

The speaker for this year’s address, the Law School’s signature lecture series, was Madhavi Sunder, a leading scholar of law and culture who teaches at the University of California, Davis School of Law.

Sunder studies intellectual property (IP) law, a once-staid field that has blossomed into new possibilities with the advent of digital technologies. UB Law Professor Mark Bartholomew, who chaired this year’s Mitchell Lecture Committee, noted that the success or failure of IP law has long been judged on a single axis: whether it provides the incentive for writers, artists and filmmakers to produce more creative work. Sunder, he said, has broadened that perspective, bringing into the equation the perspectives of human rights, free speech and social well-being.

Sunder began her talk by documenting the “phenomenon of living our lives in imaginary worlds that are protected by copyright and trademark.” For example, she said, “people today play Quidditch for their universities, dance in flash mobs, create elaborate costumes for conventions such as Comic-Con in San Diego, and celebrate life’s most important moments, from birthday parties to even weddings, in their fantasy world of choice.”

It’s this phenomenon of popular participation in imaginary worlds that is the subject of Sunder’s work. Her critique of current IP law is that it has “an unduly narrow view of what culture is: the production of more goods, films, books and music.” But, she said, “Culture is more than just a set of inputs and outputs. Culture is the sphere in which human beings sing, dance, share, learn and enjoy life together. … Intellectual property law should promote not just more goods, but a good life. That is, a life in which people can enjoy, think about, play with and critique the cultural works that dominate and shape ourselves and our society.”

And in the current culture, Sunder said, consumers are demanding participatory experiences — what economists call the “experience economy.” “From “Star Wars” to Harry Potter, fans don’t just want to read or watch their favorite characters, they want to be them,” she said. “They want to don the robes of Gryffindor, flick their wands and drink the butterbeer.”

And make no mistake, she said, big money is involved. Movie-related merchandising is now a $100 billion-a-year industry, one that grew exponentially after the first “Star Wars” film in 1977.

Sunder reviewed some important cases in the laws governing who has the right to produce movie-themed merchandise. The current law has its roots in a 1980s case brought by Warner Bros. over products related to the “Dukes of Hazzard” television show. An appellate court ruled that because the studio had a substantial financial interest at stake, it alone had the legal right to license toys based on its show.

Exercising that right has sometimes come at a cost in goodwill, Sunder said, as in 2009 when Warner Bros., holder of the Harry Potter license, sent a cease-and-desist letter to a single mother in the United Kingdom who was planning to host a Harry Potter-themed dinner party, serving butterbeer and pumpkin soup, and charging admission. In a similar case, the music licensing firm ASCAP was roundly derided for attempting to collect fees from a Girl Scout summer camp where campers sang Puff, the Magic Dragon and “Over the Rainbow” around the campfire.

Sunder noted that current research supports the benefits of experiential play. “There is more to child’s play than meets the eye,” she said. “Contemporary education theory powerfully suggests that learning is not just a product of rote exposure to static goods, such as books, but it involves participation, doing, role playing, social attraction and immersion into worlds. Learning is a product of experience.”

So, for example, she said, “fan activity, such as writing and editing a Hogwarts newsletter online, teaches professional skills, such as reading and writing, and also the critical-thinking skills we need in a democratic society. And through such activity, we learn to empathize with the characters we are embodying, be it someone of the opposite gender, someone who is poor, someone who is old, etc. Yesterday we were bowling together to form social solidarity and understanding; today we’re playing Quidditch and dancing in flash mobs.”

The concern, she said, is that companies’ heretofore laissez-faire attitude toward fans’ use of their properties may fall victim to a push for ever-greater profits. “Today,” Sunder said, “management scholars ruthlessly advise companies that ‘more experiences should yield transformation’ and that companies should ‘charge for life-changing experiences.’ Management gurus offer that ‘the greater the positive memory created and the longer it lasts, the more value is created,’ with value meaning profit.… My studies suggest that we should fear the creep of trademark law into our lives, especially where property law increasingly seeks to govern arenas fundamental to our humanity, such as play and learning.

“Even if copyright owners want to offer their own authorized version of a game or a camp or a costume, we need to keep open spaces for unscripted experiences and unscripted and unauthorized activities,” she concluded. “Telling your own stories empowers kids to know that they can make a difference, rather than following a copyright owner’s script. They see how their choices actually affect the world. Fantasy worlds are not stock commodities but become familiar places in which kids can experiment, create and learn.”

UB Law School’s most prestigious lecture series, the Mitchell Lecture was endowed in 1950 by a gift from Lavinia A. Mitchell in memory of her husband, James McCormick Mitchell.