It's like using an acetylene torch to fix an overheating car, or a screwdriver to hammer a nail or even an axe to spread icing on a cupcake, yet it happens every day – companies using attorneys and legal department executives to comment to the media. It happens every day, and it rarely ever works.
Take this example from Time Magazine. It proves that even Superman gets it wrong:
DC Entertainment refused to allow the famous "S" to be used on a memorial to honor five-year-old Jeffrey Baldwin, who was starved to death by his grandparents in 2002. The company confirmed that the memorial could not use the logo, but made no further comment on the issue.
Todd Boyce, an Ottowa resident who heard Jeffrey's story after his death, has raised money for a statue of the boy, and wanted to see him depicted in his Superman costume. Jeffrey's father Richard testified in court that before his teenage parents lost custody, Jeffrey loved to dress up as the superhero and pretend to fly.
"He wanted to fly," Baldwin said, according to CBC News. "He tried jumping off the chair. We had to make him stop. He dressed up [as Superman] for Halloween one year. He was so excited. I have that picture at home hanging on my wall. He was our little man of steel."
But DC Entertainment refused to grant the rights for the Superman logo to be used on a statue of the boy. "Basically they didn't want to have the character of Superman associated with child abuse. They weren't comfortable with that," Boyce told CBC. "To be fair to DC I don't think they wanted to say no. I think they gave it serious thought."
DC's senior vice-president of business and legal affairs, Amy Genkins, told Boyce in an email that "for a variety of legal reasons, we are not able to accede to the request, nor many other incredibly worthy projects that come to our attention."
How many ways did DC screw this up? How high can you count?
1) No Material Breach — The statue does not reflect a material breach of copyright, since there is no for-profit entity that benefits from its use. They could have easily granted an exemption to them, combined with a small charitable gift. However, DC corporate does not give to charities. Behind the scenes, some executives have been known to send out DC "care packages" to sick children, but they always have to do it secretly. In the comics industry, there is a charity called The Hero Initiative, which raises money for comic creators who have landed on hard times (usually because they've been denied royalties on their creations at some point, or just aren't the flavor of the month). Marvel has given generously, while DC stiffed them for years. Their legal department was so strict with their IP, they wouldn't even grant rights to use images of comic books in some of their own movies and TV shows.
When I was at CrossGen Entertainment years ago, we provided comics to the productions of Queer As Folk, Vanilla Sky and Million Dollar Baby (The comic Morgan Freeman brandishes throughout the film is a copy of Mystic #8) because the rights and clearances person on those films could not secure DC comics for the scenes that required comic books. The legal department there has always been very heavy-handed and unsympathetic, behaving contrary to the heroes they portray in their comics and films. These policies are not new, but they are damaging to their brand in many ways.
2) Attorneys Make Poor Spokespeople – Companies should never allow any attorney to comment for them in public to the media. Ever. Attorneys are trained based on the rules of evidence and what courts will admit as evidence. The court of public opinion has no rules, so attorneys will always be ill-prepared for the consequences of their words and actions. They use legal language, which never pleases the media and makes the company sound heartless, soulless and bereft of any compassion to their customers. A true marketing or PR executive could have headed this one off at the pass and gotten senior management to sign off on the exemption. But Warner Bros. has always been very decentralized, with the left hand and right hand never quite being in synch. That being said, it should be a simple rule: if the audience is a judge or a jury, use the attorney. If the audience is the media, use a media professional. Doing otherwise is foolish.
3) Selective Enforcement – That is the beast the legal department is battling. Because their intellectual property is so iconic, the copyright infringements of the Superman symbol, Batman, Flash, etc. are copious and difficult to find. However, if DC knows about a potential infringement, they have to act on it, for fear of having a big case down the road in which the copyright infringement could be fought on the basis of selective enforcement – meaning the offending party could claim that the company lets other people get away with using their IP, so why aren't they suing those people, too. Keep in mind, DC is in a huge copyright battle with the heirs of the Jerry Siegel and Joe Shuster estates (Jerry and Joe created Superman in 1938) that could conceivably end up with Warners losing ownership of the entire Superman library of characters, so I think they are trying to be very careful with the Superman IP. Still, a not for profit exemption, positioned as an in-kind donation, could have easily avoided that trap.
4) The Brand is more important than the Legal Issue — The brand generates revenue, and protecting the public reputation of that brand is more important than any line-item legal issue regarding IP rights. There is always a loophole that can be found and exploited for legal issues, but brand issues are immutable, because they involve the consumer. Consumers remember. Consumers do hold grudges and they post a lot of stuff on social media.
5) The Clock is Ticking – DC has about 48 hours to do an about face on this one. After that, this story will have penetrated a broader range of social media users and be difficult to dial back successfully.
Now, let's see if there is someone smart at Warner Bros. who has a clue on how to snatch victory from the jaws of defeat — and pay tribute to a child whose story should be told and memory served.
Tony Panaccio is the former Senior VP of CrossGen Entertainment and currently a media consultant in the U.S.