We've Got the Receipts

It's often been said that there is "nothing new under the sun", and the fact that I can't be certain who to attribute that quote to is just another meta-example of how unoriginal we really are. It's not so much that we've been stealing each other ideas for all of human history as it is we just can't help but come up with the same ideas in different places and times. For all its variability, it seems that the human experience is filled with the same themes repeating over and over. We built the same kinds of monuments, with the same design, on several different continents without any of those groups "sharing notes" (and sorry, it's very unlikely ancient aliens moderated these global construction projects). Furthermore, we've also been telling the same stories to each other (think Joseph Campell's heroic arc) since we started telling stories.

Just because we can't help but come up with the same ideas doesn't mean someone hasn't done it "first", chronologically speaking, though. Before the development of our global communications network, it would've been virtually impossible to determine who actually had the idea "first". Even going back through historical records with the latest and greatest archaeological technology, it's virtually impossible to say with any great certainty whether one person did something before everyone else. (Not to mention this assumes the record would even be preserved, which, as any archaeologist will tell you, is quite unlikely.)

In the Internet Age, however, it has become a lot easier to track down who exactly did or said something, and when. All of our posts to blogs and social media are timestamped (and the metadata usually reflects where we were as well). Even when the website where our original post was logged is no longer live, resources like the Internet Archive's Wayback Machine (not to mention the serves at Amazon, Facebook, Google, et al.) ensure our online activity is preserved for what is effectively all of eternity. In a world where more and more of our lived experience happens online, we're building quite the historical archive for future generations.

This isn't just an interesting social or philosophical occurrence, though. There are very practical implications in the world of intellectual property (aka, IP). While the US patent system has recently moved to match the rest of the world, which is a first-to-file system, the attribution of copyrights and trademarks still relies more directly on the kind of chronology we've been talking about here.

If you and I were both writing this same article at the same time, who would get the copyrights to it - the rights to reproduce these exact words? The assignment of IP rights would come down to who could prove they wrote the article first, which would most likely be determined by the timestamp on the published version of the article. It's not necessarily easy to track down this kind of information online, but it's possible, which is more than can be said of our great works from antiquity.

In the case of major influencers, brands, and other online entities with a large and loyal following, however, this discovery phase often ends up getting inadvertently crowd-sourced - bringing to mind some examples I've recently witnessed.

Longtime friend of Magnitude and Direction, See Thru (née Skinno) has had a skin-characterizing quiz, methodology, and philosophy called SkinMood for quite a while now. Over 20,000 people have taken the quiz and had their "SkinMood" determined. Furthermore, See Thru has been using SkinMood in their social media messaging and advertising for many months. So it was quite a surprise to both See Thru and their followers when in April of this year another company in the skincare space, Mirra, started talking about "Skin Moods" (note the space) on their social media. After sharing Mirra's posts on their own social media, several of See Thru's followers posted comments on Mirra's original post, accusing them of stealing the Skin Mood idea and name from See Thru.

In more litigious circles and industries, this could've led to a trademark dispute and a lawsuit. The purpose of trademarks is to provide consumers with a distinct and symbolic representation of a brand (the "Golden Arches" is something we associate with McDonald's and no one elsee). Two companies in the same industry, providing similar goods or services, aren't supposed to be using the same trademark(s), because it could confuse consumers (think about all those bootleg Luis Vittons and Rolexes down on Canal Street). Patent disputes get all the attention in the IP litigation world, but litigation around trademarks (and copyrights) can have just as big an impact.

In this case of See Thru/Mirra, the founders decided that collaboration and coordination would be more mutually beneficial than conflict. Both being small, young companies with a similar mission and vision for the beauty and wellness space, they decided they could do better to support one another, especially since they don't operate inexactlythe same space (augmentation is often better than litigation, my friends).

In subsequent discussions, it turned out that Mirra had, in fact, been the first one to write about "Skin Moods" via their blog and newsletter back in March of last year. See Thru's "SkinMood" quiz went live in November of last year.

So this was an interesting scenario: Mirra definitely had copyrights to at least some aspects of the Skin Mood words and ideologies - they were the first ones to put ink to paper (err, pixels to screens..., text to servers...?) and put "Skin Mood" in a "fixed and tangible medium". See Thru, however, had released their "SkinMood" in a much more public forum - social media versus an email newsletter - and, arguably, had the stronger brand association with the phrase and concept of Skin Mood, the criterion against which trademarks are judged.

In the end, it seems like "don't hate, cooperate" was the better mantra for See Thru and Mirra than "hey wait, I'm gonna litigate". The whole incident raised some interesting questions for me, though, about what the future of IP, especially trademarks and copyrights, might be in an internet-based world.

As long as what you're doing is happening online, it's being recorded (for better or worse). But how much does that timestamp matter if the forum where it was applied is less publicly visible than another one, where someone else has written the same thing at a later date? History has never been equitably recorded, but in previous generations that was because we didn't have a way (or a desire) to catalog what everyone (both enfranchised and disenfranchised) was saying. Now that we do, though, does it even matter? The very same social networks that are recording our entire online existence can also be used to promote one narrative over another, even when it isn't the most accurate narrative.

I don't want to take up too much more of anyone's time with other examples, but See Thru/Mirra is just one of several. A similar situation has played out before in the beauty industry, and I'm sure this is just the beginning - and that these issues of IP on the internet won't be restricted to the beauty and wellness industries.

I know that there are at least two IP attourneys who read my newsletters, so it'd be great to hear from one or both of them to get more professional thoughts on where the space is headed.

Until then, I encourage all of you to always try and put in the effort to track down original sources when you can. It might take a few minutes, but I promise you, the record is out there somewhere.