Social Media and Ownable Distinction

As I sit here at 35,000 feet inside a tube of steel moving at 500 miles per hour across the continent, I find myself thinking about the similarities between this moment in our social media-drenched existence, and the early 20th century, when my grandfather was a boy and no aircraft contrails besmirched the sky.

In the early years of the 20th century, the art world was awash with bizarre avant-garde “movements” — you could barely walk down a street in Paris, it would seem, without stepping on someone’s keening manifesto, or stubbing your toe on one of their unidentifiable (yet quaintly offensive) sculptures.

In other words, there was no Internet yet.

As detailed in Greil Marcus’ classic  Lipstick Traces: A Secret History of the 20th Century, we learn that the Dadaists sought to  shock our bourgeois understanding of art by engaging in what some at the time called “anti-art.”  They put out crazy manifestos demanding ridiculous things, engaged in large scale public demonstrations over nothing in particular, put on plays and then rioted during the performance, and broke every rule that had previously existed as a framework for “art.”

The Dadaists were a sensation at the time, but that isn’t why they are important.  Rather, I am interested in Dada because of what it means to understanding our moment today.   In the early 20th century, the Dadaists felt that they had to be completely over-the-top and outrageous in order to break through the rigid cultural guardians who claimed to speak for what was right and appropriate.  They didn’t merely push the envelope, they ripped it open in their quest to get noticed and to spread their message of revoluion. They tried to be as different as possible from everything else, and thus more efficiently and effectively conveyed their story to a flabbergasted populace.

Today, content providers have a similar problem.  There are still guardians at the entrance to tradtiional media outlets.  Just ask any author how difficult it is to get a book on Oprah.  And the social media vanguard is so diffuse that (even with every tool of search engine optimization you can imagine) it is difficult to stand out. With the increasing move to apps as a substitute for raw browsing, the potential to find your potential audience herded into pens under the control of yet another gatekeeper looms in the near future.

So what should you do to break through, and what does this have to do with the law?  Actually, the answer is pretty simple, and it has everything to do with the law.  The answer is in the phrase “ownable distinction.”  This phrase, first developed (I’ll pat myself on the back here) about a decade ago in an article by yours truly and brand consultant Mary Morgan, deals with a basic failure of the imagination — a failure that each of us is guilty of nearly every day: a failure to look at what we do, or what we are, from the perspective of our audience/customers, and to see that the distinctions between us and other choices are often more important than any intrinsic merit.

You see, the basic point of the article (and the concept itself) is that the only things that really matterin the end when thinking about your business, or any cultural production ranging from art to music to your social media presence, are (a) the things that distinguish you from other choices in the marketplace (either the real one or the marketplace of ideas), and (b) the extent to which those distinctive things are unique to you (in other words, are they “ownable” in any real sense).  Wait a minute, you might say, what about quality?  Of course, but as we all know many great products fail, and many mediocre products succeed.

What kind of things can provide ownable distinction?  A message associated with a brand is often most effective.  A portfolio of patents can do the trick, as can copyright, trade dress, look-and-feel, or any number of other legal concepts.  Even trade secrets associated with your logistics system, or internal processes that are only experienced by the customer through  unique purchasing option.  But the important thing is to think systematically about these things, both at the inception point and throughout the life of your engagement with market.   Think through what you do, and try to identity what it is that you do that is different from your competitors.  Take a lesson from the Dadists and try to make a break with the past, and create new ways to mark yourself as different.  Push the envelope until your outrageous distinction becomes your calling card.  And then consult with your lawyer and try to figure out whether any of these distinctions can be protected, and maintained as a point of difference through tools provided by the law.  If you don’t do it, your competitor may very well beat you to the punch, and then you’ll be left with little distinction, and nothing of your own.