Brands have a delicate balance to maintain when it comes to fan-generated content. On the one hand, intellectual property (and, for that matter, physical properly) is a real and valuable thing, and choosing not to protect it can tip a brand down a slope to losing it entirely. When an individual, even one who loves your brand a lot, starts using that brand for their own purposes, not speaking up isn’t always the safe legal option.
On the other hand, though… free content. A built-in fan base. Someone else doing all the work. Looking cool for playing along and, just as valuable, not looking uncool for calling out fans for just doing fan stuff. And while “influencer” has come to mean “person on Instagram who pretends to use your product whilst smiling and not forgetting to #spon,” the reality is that anyone who interacts with your brand can be influential if you play your cards right. Or really, really badly. Here are a few winners and losers.
(One important note: I am not a lawyer, nor am I an IP expert. Nothing written here should be taken as legal advice. I can only speak to the wisdom of pissing off your fans, notwithstanding your legal right to do so.)
Sherwin-Williams v. Guy with Paint TikTok (2020)
Tony Piloseno was a full-time Ohio University student and a part-time Sherwin-Williams sales associate when he launched his TikTok channel, @tonesterpaints, in which he demonstrates the art of mixing paint colors to create other paint colors and y’all, it is hypnotic. He started posting videos in December of last year, and since then, some of his videos have gotten upward of a million views.
So in July, Sherwin-Williams fired him.
Piloseno admits that his first videos were filmed while he was mixing paint for customers (although, when the channel took off, he committed to buying all the paint himself), that he used company equipment to do the mixing, and that he sometimes filmed during work hours when things got slow. So if, as a company, you’re absolutely determined to fire an employee, there are grounds there. Alternately, however, there’s the option of not firing the guy stirring up your paints for the enjoyment of 1.5 million followers, and finding some other way of dealing with it. Obviously, we know which way Sherwin-Williams went.
The citrus twist that makes this incident particularly sour is that back in the spring, Piloseno actually did reach out to Sherwin-Williams’s marketing department — with a pitch deck, no less — to offer his services, and his built-in audience, as a social media presence. And not only did they shoot him down, they didn’t even look at his deck — because they didn’t have any promotions going at the time.
Ouch.
Freshly unemployed, Piloseno continued running his widely beloved TikTok from a friend’s basement, buying all his own gear. From Lowe’s. And Sherwin-Williams has… not been receiving the greatest feedback from the public.
Luckily, not every paint company is as utterly myopic as Piloseno’s former employer, and Piloseno started getting job offers pretty soon after his firing story went viral. “I talked to a bunch of people from a bunch of companies, but Don Strube, the co-owner of Florida Paints, he really connected with me when he called me and talked about his passion for paint,” Piloseno told BuzzFeed News. “I found that very special.” He’ll be working in one of their Orlando stores as a sales associate while continuing to make content (with the company’s enthusiastic blessing) and finishing his degree online.
I mean, come on, Sherwin-Williams. This isn’t the hard math.
IKEA v. Woman with IKEA Fan Blog (2014)
Sherwin-Williams isn’t, of course, the first brand to stumble over the prospect of a ready-made audience. Way back in 2006, Malaysian IKEA enthusiast (and, not for nothing, freelance copywriter) Yap Mei Mei (better known as Jules, after the eponymous IKEA swivel chair) chose to celebrate her enthusiasm by launching the blog IKEA Hackers, bringing all the wonderful things clever people have done with their IKEA furniture into one place. Storage, room decor, pet care — IKEA furniture is both relatively affordable and imminently hackable, perfect for off-label use. And from a brand standpoint, who wouldn’t love a blog drawing 30,000 visitors a month, giving people reasons to buy flat-pack furniture for purposes they hadn’t originally considered?
Well, IKEA, apparently, because in 2014, they served Yap with a C&D for violating their IP. Initially, they demanded that she transfer the domain name IKEAhackers.net to them, lest they take further legal action. After negotiations, they agreed to let her keep the name and URL of the blog she’d had for eight years at that point, on the condition that she not feature ads to offset the cost of running the site.
Now, to be clear: IKEA is perfectly within their rights to protect their IP, including preventing other people from making money using their trademark. But from a brand-relations perspective… you gotta be like that, IKEA? Going after a fan community that is arguably making more money than they could ever take from you? Or, as Yap wrote in her got-some-bad-news-y’all post, “I don’t have an issue with them protecting their trademark but I think they could have handled it better. I am a person, not a corporation. A blogger who obviously is on their side. Could they not have talked to me like normal people do without issuing a C&D?”
It took about a week of public reaction for IKEA to realize precisely what it was in the process of doing. In the wake of an outpouring of popular support, IKEA flew Yap out to Almhult, Sweden, to talk with a team including CEO Torbjorn Loop about how the brand and the fan could work together. (“They recognised the contributions of IKEAHackers and admitted that they ‘did not handle this (the trademark issue with IH) very well,’” she wrote.) They quite sensibly agreed to let her keep the site going as long as she didn’t post anything that might be damaging to the IKEA brand. She still gets ad revenue and has even published a book, and IKEA is fine with that, because the revenue from a couple of $17 books is nothing compared to the $240 of Kallax involved in this wardrobe hack.
Wizards of the Coast v. Nobody, Because They’re Cool
Of course, you could expect Wizards of the Coast — makers of the “Dungeons & Dragons” and “Magic: The Gathering” brands — would be cool with fan-generated content. Their entire business model depends on fans taking what Wizards creates, applying their own creativity, and emerging 16 hours later desperately in need of a nap and probably some roughage. But they also recognize that, once again, letting your IP wander too far from the ranch isn’t a good thing.
To keep fan content a little more moderated, Wizards offers a free and comprehensive fan kit for the creation of fan sites and other materials. Graphics, logos, colors, the whole thing. All they ask is that you not alter their stuff and you not try to make money off of it. And if they catch you doing it, they’ll… call you, and be, like, “Hey, knock that off, okay?”
They’re not the only ones. Video game company Ubisoft offer fan kits for products like “For Honor” and “Assassin’s Creed” with everything from character art reference images to cosplay guides. Ditto Cloud Imperium, maker of “Star Citizen” and “Squadron 42.” They’re not saying, “Hey, our stuff is your stuff, y’know?” They’re not saying, “Take it! All of it, it’s yours to do with as you want.” What they’re saying is, “Y’all, don’t try to make money off of our IP. We’re already giving you this stuff for free anyway.”
I mean, they’re saying, “We love our fans! Y’all are the best. You make us who we are,” blah, blah, blah. But what they’re really saying is, “Hands on this stuff. Hands off the rest of our stuff.”
Can v. Have To
Because brands really do get to choose what to say. Sherwin-Williams did have the right to fire their sales associate for filming TikTok videos at work, using their equipment. IKEA did have the right to call up a blog that was making ad revenue using their protected trademark. Wizards of the Coast, or any of those other brands, would be fully within their rights to tell fans where to get off with their fan art, because their money is buying a deck of nerd cards and that. Is. It.
But they didn’t. Well, Sherwin-Williams did, and it didn’t work out well for them, because they’re been thoroughly dragged for it on social media, and that’s kind of the point: You can be flexible and innovative in an ever-changing online environment, appreciating fan (and/or employee) appreciation and using it for your own purposes, or you can cling to outdated interpretations of a brand’s responsibilities in the face of such nonsanctioned activity and screw yourself over, reputationally speaking.
Again, I’m not an IP lawyer, and I don’t want to hear anyone saying, “I let my IP slide because Caperton said I’d be uncool and it would be bad for business” — I didn’t say that, I don’t even know you, and I’ve already told you I’m not a lawyer and taking legal advice from me would be stupid. And IP is important. But keep in mind that there’s a lot of room, legally protectable room, between “sue the pants off of them” and “let them do whatever they want.” It’s like how there’s a lot of room between being a strict parent and buying a keg for your fifth-grader’s sleepover — you can let them have Dr. Pepper after 9 p.m. and still be The Cool Mom.
“Wow, your brand lets you run an ad-supported fan site as long as you don’t post anything that would be damaging to their IP? I wish my brand was as cool as yours.”
I know, dude. I know.