We Shouldn't Call Michelle Obama's (And Joe Rogan's) Proprietary Exclusive Audio From Spotify A 'Podcast' Any More

from the spotify-exclusive-audio dept

In early 2019, after Spotify announced the purchase of podcast studio Gimlet Media, we worried that it signaled an end to the open world of podcasting. Part of what made podcasting so special is that, like the early parts of the internet, it was wide open. Anyone could make their own podcast, and just host it somewhere with an RSS feed and then anyone could listen to it via any podcast app or service they wanted. But Spotify is a mostly closed platform.

Our fears solidified a lot two months ago when Joe Rogan moved to Spotify (under a rumored $200 million deal), such that his insanely popular podcast will only be heard via Spotify going forward. As we said then, the world loses a lot when podcasts go into private silos (even if the podcasts are available for free). We start moving away from an open system that anyone can use, and which democratizes the creation and distribution of content, to much more of a traditional gatekeeper-run broadcast model. And that's unfortunate, even if it's understandable.

And now we have Michelle Obama announcing "The Michelle Obama Podcast," which is exclusive to Spotify. Frankly, we should not call it a podcast any more when it's not actually available for anyone to listen to on their own podcast apps. This is Spotify exclusive audio. That's not a podcast.

I understand why we got here and why everyone involved did this. For Spotify, it will boost usage (as will the Rogan deal) of their app and once people start using it to listen to those exclusive podcasts, a lot of people will probably shift over and do all their podcast listening via Spotify as well. And I'm sure that, as with Rogan, Spotify is paying a lot to Michelle Obama to do this. And, of course, I'm sure the production value will be great.

But, still, it's worth noting that this move to silo'd, locked up content is disappointing and a shame, as it's yet another nail in the coffin for the promise of the truly open internet.

Open systems allow for more participation, more inclusiveness. Closed systems, by their very nature, create gatekeepers and exclusivity. That may be good in the short term for certain business interests, but it's bad in the long term for the public and speech interests. Spotify may very well be successful with this strategy, but the least we can do is stop confusing the closed, exclusive, gatekeepered system with the open, inclusive ecosystem.

Filed Under: closed, joe rogan, michelle obama, open, podcasts
Companies: spotify

Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?

from the it's-accurate,-right? dept

One of the trickier and more recent "intellectual property" (and I use the term loosely) rights out there is the "right to publicity" which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn't wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company's jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain:

As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won't sue, not just because presidents don't trifle with such litigation, but because Obama has no legal leg to stand on. He is a public figure and the ad is truthful -- Obama did, in fact, wear its jacket standing near the Great Wall...

That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns. When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing ("she thinks it is better to test on animals first instead of using poor people and prisoners"). Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product. But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA's position on furs.

Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it's someone else:

What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it. But isn't is obvious that magazines were putting the Obamas on the cover to sell magazines? Givhan's article admits that -- she says, "no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes," and quotes PETA's preseident explaining, "It's hard not to look at her and feel good."

This, too, is a use of the Obamas' selling power to sell the products of companies' who have never received consent from the Obamas. In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some "right of publicity" cases may say. It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.

Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.

Filed Under: first amendment, michelle obama, peta, president obama, privacy rights, publicity rights
Companies: weatherproof

Fashion Designers Hope That Michelle Obama Gets Them Copyright On Clothing Design

from the comes-from-all-directions... dept

While there are plenty of legitimate worries that the Obama administration is way too influenced by copyright maximalists, who knew that the battle for ridiculous new copyright laws would start involving the First Lady as well? For years, the fashion industry has been a shining example of an industry where innovation and competition thrives, despite no ability to copyright designs and widespread copying of those designs. However, what's resulted is a more dynamic and more creative marketplace that has actually increased output and helped enlarge the market. In fact, repeated studies have shown that it's this lack of intellectual property protection that has made the industry so successful, and that implementing restrictions would actually harm the industry. That's because the rampant copying has done many good things:

• It helps permeate new designs into the market much faster.
• It creates a defacto market segmentation between "originals" and copies, which actually has increased the value of having an original brand name design.
• It encourages more innovation because designers know that they need to keep coming out with new works to stay on top, rather than relying on their old designs.

And it's working. The fashion market is highly competitive, very robust, and very, very creative. So it makes no sense at all that anyone should want to add new IP into that market. The purpose of copyright is to encourage new content creation, and anyone would be hard pressed to say that the fashion industry isn't quite good at constantly churning out tons of new designs. And yet... as with so many case studies about intellectual property, those who are on top often want increased IP protection, not to encourage the creation of new content, but to stamp out competitors and be able to slow down innovation and rest on their laurels.

In other words, the leaders in highly competitive markets often implicitly recognize that IP protection does exactly the opposite of its intended purpose: and they want that. It helps lock them into a leadership position by easing competition, and slowing down the pace at which they need to innovate. So, it should be no surprise that over the years, some top fashion designers have pushed hard for Congress to create a new copyright for fashion designs, despite the total lack of evidence of any need (and, in fact, lots of evidence to the contrary). NY Senator Chuck Schumer has been a big supporter of such a damaging idea, but it hasn't gone anywhere to date.

Yet, now we find out that many top designers, who have designed dresses for the First Lady, Michelle Obama, are hoping to enlist her help in supporting such legislation. They're apparently excited that Michelle Obama is known for her fashion sense, and are playing off of that to get more attention. Unfortunately, in the article linked here, the Washington Post's fashion columnist simply parrots the designers' false claims about how such copying "harms" the industry, despite the evidence saying exactly the opposite. I guess it's too much to ask the Post's fashion columnist to actually understand or research the issue, but it's unfortunate that these false ideas are being reported as fact, and that the First Lady may get dragged into a battle that would ultimately harm fashion design by establishing protectionism where none is needed.

Filed Under: competition, copyright, fashion design, fashion industry, innovation, michelle obama