Why Movie Theaters Suck and How To Fix Them

Today I'm going to discuss something near and dear to my heart, so I hope you'll treat what I'm about to say with the respect and gravitas it deserves... modern movie theaters suck.  Last week my wife and I went to see The Master and these are some of the myriad distractions that prevented me from engaging with the film:

1. The lady sitting behind me kept kicking my seat and futzing with her cell phone.
2. An old man several seats away kept mumbling to himself throughout the film.
3. A middle-aged lady kept shushing the old man to keep quiet, and when the shushing didn't work, she outright yelled at him.
4. That same middle-aged woman left the film after an hour (along with her two companions) never to return.  They made quite a ruckus when leaving.
5. A woman came in 3/4 of the way through the movie and sat in a seat next to me.  She started munching loudly on some snacks that she had smuggled in from home, and shifted in her seat.  She then left the theater after 10 minutes.
6. Halfway through the film, five ushers came in and stood at the entrance crunching on popcorn and talking loudly to each other.

For a long time, movies were my religion and the cineplex was my temple.  I worshipped frequently: with friends, family, and often by myself.  While I noticed the decline in the viewing experience over the years, I kept going because I wanted to give my business to films that needed and deserved my support.  Nowadays, I've largely become a theater expat.  Why?  I don't remember the last time I went to see a movie and didn't have the entire experience ruined by people talking and texting, children yammering at age-inappropriate films, and the relentless stickiness of every surface.  Movie theaters have become a wholly unpleasant way to spend a few hours.  When I go now, it's only for the films that I've been hotly anticipating or that demand a 50 foot screen.  For the rest, my home theater will do quite nicely.  Like me, many of you have stopped going with regularity.  The figures certainly bear that out... despite this summer seeing two films that annihilated the box office (The Avengers and The Dark Knight Rises), summer movie ticket sales have declined by $100 million since 2002 and movie ticket sales as a whole are at their lowest in decades.

There's a great article over at Fast Company that discusses how design is the key to improving the theater experience and increasing ticket sales.  The crux of their argument is that theater owners are trying to compete with home theaters, Netflix, Hulu, Apple TV, and Blu-ray.  That means buying the latest digital projectors, sound systems, and investing in 3D and Imax technologies.  Except, home movie watching isn't competing with theaters for business.  Rather, movie theaters are really in competition with Friday night social venues - such as clubs, restaurants, bars, bowling alleys, etc. - and Fast Company argues that theater owners should be rebuilding the entire movie-going experience around that social engine.  Some of their suggestions are fascinating and could work really well: liquor bars, private viewing boxes for large groups, intimate lounge areas near the actual theater.  One of their most intriguing ideas is to set up a "trailer lounge" where you can gather with your friends in a comfortable seating area and watch the latest trailers and discuss them without fear of being shushed.  [I personally suggest instituting a tiered pricing system and assigned seating...the Arclight Theater in Hollywood does this.]

I applaud this out-of-the-box approach and I sincerely hope that some intrepid theater owner will be willing to embrace these innovative ideas.  For anyone fed up with the state of the modern movie theater, the article is a must read.  But Fast Company only gets at part of the problem.  You see, while the act of "going" to a movie is generally a social activity, the "watching" of the movie is decidedly solitary; after all, you are compelled to sit in silence for two hours. So while theater owners can gussy up the pre- and post-show experiences, the movie-watching experience remains largely unchanged.  And that's precisely the problem: the movie-watching experience has been substantially compromised by strangers bereft of cinema etiquette.  Personally, I don't care if the lobby is nice or that the film is being projected with the latest digital technology.  All the amenities in the world can't make me enjoy a film that I can't hear or see because of inconsiderate theater-goers.   Tim League, owner of the Austin-based Alamo Drafthouse theater, agrees.

A year ago, League earned some fame by ejecting a customer who texted during a movie despite two warnings to stop (because of theater policy, the customer was not refunded her money).  League blogged about that incident here.  The customer was so incensed that she left a voicemail at the Drafthouse, which League turned into a "Don't Talk or Text PSA."  Here it is in all it's hilarious glory.

[youtube http://www.youtube.com/watch?v=1L3eeC2lJZs&w=560&h=315]

League has hit upon exactly the right strategy for making the movie-watching experience better (and thus more appealing to customers): TOSS THE BUMS OUT!   It is so simple, so affordable, and so effective that I can't believe no one has implemented it in any meaningful way.  In the golden age of cinema, theaters employed uniformed ushers to patrol the theater and remove the riff-raff.  Most theaters don't do that anymore and I can't figure out why.  After all, there's virtually no legal downside.  Businesses can't discriminate on the basis of race, gender, disability, age, etc., but they can generally pick and choose with whom they wish to do business.  Furthermore, businesses are allowed to expel customers from their property for just about any reason.  When you go to a movie, you are being invited onto private property.  Such an invitation is revocable anytime by the business owner because your presence on the property is a privilege, not a right... even if you paid to be there.

Theater chains must know that if they were sued by expelled theater goers they would almost certainly be judgment proof.  So if there's no fear of a lawsuit, why don't they just kick out unruly patrons?  Are they afraid of bad press?  Are they afraid of physical confrontations?  In my opinion, it's most likely inertia combined with a deep-seated apathy; once they have your money, they don't care if you have a pleasant experience.  In fact, some chains, namely Regal and Imax, are doubling down on the bad experience angle by creating "texting friendly theaters"!!  League has spoken out about that here.  He writes that

"By introducing screenings where people are free to text during the movie, you will be creating unhappy customers at every single session.  It really boils down to the undeniable fact that texting in a movie theater is rude, selfish, and adversely affects everyone within view of your glowing device.  The only answer to this debate is taking a hard line.  Texting and talking can not be allowed in movie theaters.  Our spaces are sacred spaces for movie fans... To me, the leniency towards talking and texting is a greater threat to our industry."

I agree with that sentiment and I think most of you agree with it too.  There's a reason why theater ticket sales are down, and I wager it's mostly because going to the movies has become intolerable.  If the theaters don't care about my experience, then why should I pay for that experience?  In response to the rude texter who he ejected, Tim League wrote,  "you may be free to text in all the other theaters... but here at our 'little crappy ass theater,' you are not.  Why you may ask?  Well, we actually do give a f*$k."  I think that more amenities, features, and radical design makeovers will definitely help to increase ticket sales, but undoubtedly the future of the movie theater industry will rest on whether theater owners start giving an old-fashioned f*$k.

Lululemon is Literally Suing The Pants Off Calvin Klein: Intellectual Property Upheaval in The Fashion Industry

It will come as a surprise to no one that I don't know thing one about fashion or the fashion industry.  In fact, I recently suggested to my wife that she start a blog called "Things I Make My Husband Wear" that would chronicle her efforts to teach me about the importance of clothing and turn me from someone who looks like  a shiftless farmhand into a professional adult.  Time will tell if she decides to take on this monumental endeavor.

But even I know when something strange is afoot at the Circle K*, and the month of September has seen the rumblings of a shift in the way the fashion industry operates, as designers scramble to protect their work in ways that have historically been off-limits.  A few weeks ago, my friend Lauren sent me this link explaining how popular yoga-pant trafficker Lululemon is suing Calvin Klein for infringing its patent by copying its "Astro" pant design; specifically, the lawsuit alleges that Calvin Klein ripped off the Astro's waistband as well as two other design elements.

Here are the pants in question:

The lawsuit is surprising, since copycatting in the fashion design industry is so generally accepted.  In the fashion world, suing a copycat over patent infringement is uncommon because design patents are so hard to obtain in the first place and even harder to protect.  There are two kinds of patents: Design patents which protect "original and ornamental design" and utility patents which are far more common and protect physical inventions that possess some level of usefulness. [Copyright law doesn't apply here since copyright protects forms of expression, whereas patent law protects items that are functional.]  So why are design patents so hard to get in the fashion world?  According to attorney Adrian Pruetz, "[i]t's very hard to come up with something that's new and that hasn't just been part of the clothing vernacular."  After all, everyone wear some variation of pants, shirts, and shoes, and finding something unique is difficult because the history of clothing design extends back for over a thousand years.

The copycatting has gotten so out of control that NY Senator Chuck Schumer sponsored a bill** that would provide some intellectual property protections for designers.  The bill, which just passed out of the Senate Judiciary Committee last week, would aim to protect fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian.  Schumer, of course, has some selfish reasons for sponsoring this bill: New York is considered by many to be the nation's fashion capital, employing over 200,000 people in the industry, so this bill is as much about protecting jobs as it is about protecting patentable innovation.

Enough of the news, here's my take: I'm all for the Schumer bill and any reasonable patent protections for fashion designers in general.  A running theme in this blog is my support for protecting the work of artists, and I see no reason to deviate from that now.  But some people have argued that design patents are more trouble than they're worth and should be limited or even abolished.  Ilse Metchek, President of the California Fashion Association, says "[t]his whole notion that you'd grant a patent to anyone who adds a seam or two to a waistband is quite problematic. It's only going to create more litigation, and that's hardly something the fashion industry needs more of."  I can see her concern.  Clothes are a necessity of life and if you permit designers to repeatedly sue other designers for infringement, you affect not just other fashion houses, but literally everyone.  Clothes would become much more expensive and only the companies who could afford to withstand lawsuits would survive.  That would stifle artistic expression and innovation.  Bad medicine indeed.

Which is why the Schumer bill is a good start: its patent protections are very limited and would only extend to designs that are extremely unique and distinguishable.  Furthermore, the protection would only last for three years from the date of publication, would provide certain liability limitations (such as no liability for someone who copies a design for home use only), and would force plaintiffs to plead detailed facts in their initial complaints in order to limit frivolous lawsuits.  Designs that predate the bill's enactment would not be eligible for protection and would thus be public domain.  The entire bill smacks of reasonableness, which frankly means that everyone will hate it.  But the bill is designed around an industry that is built on copying others and it recognizes that reality.  In my opinion, it's a good way to let people protect their work, while still allowing room for copying designs not unique enough for protection.

As for the Lululemon/ Calvin Klein row, I won't debate the merits of the case here since I haven't seen the court documents. I will say that Lululemon is clearly making a stand here against Calvin Klein, Gap, and any other retail chain that threatens its business. I have no dog in this fight, but there are plenty in the fashion industry that do.  It should be interesting to see what happens.

* Sixty quatloos to the person who gets this reference.  Please state your answer in the comments section below.

** Thank you to my lovely wife for pointing out the existence of this bill!

Microsoft And The Amazing Technicolor Trade Dress Infringement

"Good artists copy.  Great artists steal." - Steve Jobs

By that logic, the boys in Redmond are pretty great.  A few weeks ago, I was walking through the Prudential Center in Boston and came across the newly opened Microsoft Retail Store.  If you've seen one, then you probably thought the same thing I did: they totally ripped off the Apple Store!  Here's a picture I took the other day:

And for comparison's sake, here's a picture of the Apple Store I worked at three years ago:

Aside from the visual similarities to the store exteriors, both include well-lit, spartan layouts with wooden tables featuring hands-on product displays.  Both stores are divided by product type: MP3 players, smart phones, tablets, laptops, desktops, accessories. They both feature Genius bars where customers can get immediate tech assistance.  Employees in both stores wear brightly colored T-shirts and lanyards, and walk around with touchscreen tablets to ring up customers.  While Microsoft's store is generally more colorful inside, the design language is obviously Apple's.

"Why hasn't Apple sued them into oblivion?" I thought.  [I must admit a little bias and outrage since I'm a rabid Apple partisan]. The resemblance between the stores was uncanny.  Curiosity compelled me to look into it and this is what I found: Microsoft can get away with ripping off Apple because no one is walking into a Microsoft Store to buy Apple products.

You see, U.S. Trademark Law protects something called "trade dress" which is defined as "the total image or overall design or appearance of a product or its packaging."  Trade dress also includes design and layout of a retail space or restaurant.  In an effort to protect its store designs from theft, Apple registered those designs with the United States Patent and Trademark Office (USPTO).  This past May, the USPTO approved Apple's registration; you can see those documents here.  In response, Microsoft filed an objection to that registration, claiming that Apple's store designs aren't distinct enough to be protectable (so we may actually see a fight over this issue soon).

The distinctiveness issue aside, you can understand why Apple would want to prevent Microsoft from using its store designs.  But if Apple sues Microsoft for trade dress infringement, Apple will lose.  That's because Apple can only prevail by showing, among other things, that the Microsoft Store is so similar that people are likely to get confused and walk in thinking it's an Apple Store.  Frankly, that's a losing argument for the following reason.

In a trade dress infringement case, courts can weigh a variety of factors on the confusion issue, including the relationship between the brands in the minds of the consumers.  In this case, Apple and Microsoft are two of the largest corporations in the world (Apple just passed Microsoft as the world's biggest company as measured by stock market value).  Both companies were founded by men who are/were world-famous geniuses.  People are aware that the two companies are in direct competition with one another and know the Apple logo the same way they recognize the Disney logo, the Coca-Cola logo, or the Superman emblem.  Apple is the world leader in electronics sales, specifically when it comes to the iPod (which revolutionized the MP3 player market) and touchscreen devices like the iPad and iPhone - Last quarter alone, Apple sold 17 million iPads and 2 million iPhone 5's... and the phone hasn't even been released yet!  These devices are synonymous with Apple.  Furthermore, Apple's entire line of notebooks and desktops contain the same well-known design scheme, aluminum casing with black accents and a glowing Apple logo.  By the same token, the public recognizes Microsoft's logo from daily use, since 95% of the world's computers run its Windows operating system.  Nearly every business in the world uses Microsoft Word and Excel.  Microsoft is also the creator of the Xbox 360, one of the most successful video game consoles of all time.

If someone did walk into a Microsoft Store looking for an Apple product, they would immediately discover that they were in the wrong place due to the absence of Apple's logo and dearth of Apple products.  Based on these facts, I think Apple is in no danger of losing sales to Microsoft just because the stores look the same.  That is, after all, the whole point of suing for trade dress infringement... that someone has purposely confused the customer in order to draw sales away from the trade dress owner.

In short, the public knows who Apple and Microsoft are, and no one's mistaking one for the other.  Because the likelihood of confusion between the stores is negligible, it's no shock that Apple hasn't commenced a lawsuit against Microsoft.  Microsoft made its retail store plans public back in 2009, and while I wouldn't completely rule out a legal fight over this at some point, I think Apple knows it doesn't have much of a leg to stand on.

[Author's Note: I dramatically over-simplified the trade dress analysis for a few reasons.  First, for the sake of brevity; second, because it can get extremely convoluted and you probably don't care that much; and third, because at the end of the day I truly believe that this case would hinge on the confusion issue.  Of course, if there are any trademark lawyers out there who take issue with my analysis, please feel free to tell me why I got it wrong!]

Protecting The Brand: Aziz Ansari Case Study

Artists need to know how to protect their brand, and there are a lot of ways the law can help you do that: non-competes, licensing fees, lawsuits, etc.  But there are plenty of  non-legal ways to protect yourself, and I think comedian Aziz Ansari set a high bar for other artists.

Back in May, my wife and I went to see Aziz live at the Wilbur Theater in Boston.  As we expected, he killed it.  My cheeks hurt from laughing and I had a headache for days.  But Aziz did something unexpectedly impressive.  Before starting his act, he allowed the audience to spend 2-3 minutes taking pictures of him.  He even posed as if he were in the middle of telling a joke or interacting with audience members.  Although it wasn't really a part of the act, it was still quite funny and the crowd ate it up.  If I hadn't been in the cheap seats, I would have taken the opportunity to snap some pics myself.

[I've tried to find a clip of it online, but I've had no such luck.  If memory serves, he also did this at the beginning of his "Dangerously Delicious" concert; for $5.00, you can download the whole thing from his website.  I highly suggest checking it out!  He's hilarious.]

Logistically, it made sense to get the pictures out of the way up front: can you imagine how hard it is to do your act when little flashes are constantly going off in the near distance and your jokes are interrupted by the simulated "click" of a digital camera?  But the more I thought about it, the more I realized how brilliant this move actually was.  You see, Aziz knew that people were going to take pictures or video of him anyway, whether there was permission or not.  He understood that if he wanted to cut down on situations where his likeness would be misappropriated, or his act would be surreptitiously filmed without his permission (thus violating his copyright), he would have to control the opportunities in which the audience could make those infringements.

And it worked!  I was sitting in the balcony and I didn't see a single camera or iPhone light up once the photo-op ended.   But leveraging control over the situation was just part of the reason it worked; the other reason was because Aziz framed the situation as an implicit contract with the crowd. "I'll give you a great hour of comedy if you promise not to steal from me."  And because Aziz framed it like that, and then played into it seamlessly (and with humor), he got the audience to live up to their side of a contract they never realized had been made.  It was really amazing.  He did it his way and on his terms, and in so doing, he protected his brand without coming off like a money-hungry a-hole.