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Understanding screen franchising.

This article concerns the advent of media franchising and its consequences for scholarly inquiry. Media franchising constitutes a powerful networking logic for the production and distribution of screen content over space and time. Scholars struggle not only to describe the multiplicity of decisions made in connection with the proliferation of spin-offs, look-alikes and copycats of particular film and television programs, but also endeavour to define the meaning of the phenomenon of television and film franchising more broadly. The aim of this article is to explore the consequences of this practice in the light of commercial developments relating to business franchising.

The franchising label has been used extensively by myself and others for the rhetorical task of attempting to verbally clarify what is at stake in a format transaction, and also to remind readers that format exchange is a business as well as a cultural practice. In fact, 'franchise' has its own etymology and refers to a specific operation in business service industries (Blair and Lafontaine, 2005: 2-12; Dicke, 1982: 1-22; Felstead, 1990: 14-21). More interestingly, the label is also used by others in relation to entertainment institutional practices relating to film and television properties in high-end, global image marketplaces (Birkeland, 2002; Johnson, 2009; Meehan, 1991). Depending on how it is measured, television program format companies either belong to or aspire to be part of this scene.

The aim of this article is to develop comparative insight into television program format exchange as a means of deepening understanding of this particular cultural and commercial practice. I do so by investigating two related but different fields of scholarly knowledge and insight. The first concerns franchising, a widespread system that organises business operations across many fields of activity in space and time. If business studies literature is useful, so too is recent research concerning what has variously been called the media intertext or the transmedia product line (Bowrey, 2011; Johnson, 2009; Meehan, 1991). Licensing operations involving this commodity bear a strong resemblance to what occurs with television format licensing (Moran, 1998; Moran and Malbon, 2006). Comparative investigation of the two helps to shed further light on the practice of television program format franchising. The article also examines the telenovela format Ugly Betty as an exercise in the possible use of a more effective legal shield drawn from the adjacent area of media intertext franchising.

What follows is divided into five parts. The first section investigates the practice and meaning of franchising from a business studies perspective. Franchising is a form of commodity distribution whereby small operators are drawn into larger, more systematic networks. I explain the term, briefly outline the history of this form of commodity distribution and note a common distinction between two types of commercial franchising, one of which seems relevant to recent activity in large- and small-screen entertainment industries. The next part continues this engagement with business studies scholarship concerning franchising. It offers a general review of three key ways in which franchising seems to tap into business logics, including developments in the logics of screen media industries. This, in turn, points to the subject of the third section: the two types or applications of the 'business-format' method in small- and big-screen industries. Both are network-content systems that involve franchising, but these have their differences as well as their similarities. I am concerned here with the application of 'business-format' franchising logics to two areas of screen culture. The first focuses on television program format franchising. How does this practice repeat yet vary logics of business-format franchising? The second area of screen culture concerns the media intertext. Here too there is analysis of continuities and differences with business-format distribution practices. The article then turns to Ugly Betty as an example. I develop the speculation that this telenovela-based television program format represents an intriguing middle ground between the television program format and the media intertext. Drawing on textual analysis by several critics, including myself, in which various dimensions of character are foregrounded, the article suggests that this licence commodity is more able to be protected using law more frequently cited by groups operating in the field of the media intertext rather than legal defence preferred by the television program format industry. The article concludes with a short review of findings.

Franchising: Definition, growth and types

The term 'franchise' is derived from an old French term, franche, meaning free or except. In the Middle Ages, a franchise was a right or privilege granted by a sovereign power to an individual or a group of individuals--in effect, a monopoly right over a particular activity in a specific place for a specified time. The latter incurred an obligation for this privilege in the form of a payment, usually a part of the product or profit deriving from the activity that had to be returned to the sovereign (Blair and Lafontaine, 2005: 1-4).

Although modern franchising is understood to have come about after 1860, some trace its origins to the late eighteenth century in Britain. The introduction of stricter licensing laws threatened the profits of beer-brewing concerns, which were nervous about maintaining outlets and feared competition from others. To defend their market, they responded by buying some outlets outright and giving loans to other owners on the condition that they sold no beer other than their own. In this way, the 'tied' pub was born (Felsted, 1990: 13-20).

The modern practice of franchising is usually seen to have originated in the United States in the 1850s with companies such as Singer Sewing Machine and McCormack Harvester. To achieve nationwide sales of their products, these companies appointed sales agents who agreed to act only on behalf of their wares in return for being granted exclusive rights to particular sales territories (Dicke, 1982: 22-30). This form of franchising is still being practised today in such areas as car dealerships, petrol stations and soft drink bottling and sales. It is sometimes labelled as traditional or product and trade mark formatting to distinguish it from a form that made a later appearance, although several writers see no real distinction between the two (Blair and Lafontaine, 2005; Dicke, 1982; Felstad, 1990).

This second type of distribution is known as business-format franchising. It is most usefully thought of as a method or way of doing business. It may appear to have a core or central module, but it is the package of elements that is vital in the licensing process. Felstead (1990: 24ff) points out that this can involve licensing a name, an idea, a process, a product or equipment together with attendant services and the use of trade marks. As I have pointed out elsewhere, these latter components may be more important than the former elements (Moran and Malbon, 2006: 8-14). And while this form of franchising became common as early as the 1920s, it is particularly associated with the emergence of such fast food giants as McDonalds and Burger King in the United States in the 1950s. This kind of franchising has since spread across many other service sectors of modern economies (Birkeland, 2002: 1-30).

The advent of media content franchising is a signal that the practice has now become firmly established as a way of doing business within entertainment/information media industries (du Gay and Pryke, 2002). Let's look in more detail at how changes in business-format franchising make their presence felt in recent screen media licensing developments.

Franchising: Logics of commercial development

Three findings from business studies literature are a useful way to grasp recent developments in franchising in media industries. The first concerns historical trends and has to do with the fact that franchising reorganises the field of media activity on a worldwide basis (Dicke, 1982). Previously, media industries tended to operate at local or national levels, but they are now seen as increasingly global in their operation. The change is qualitative as well as quantitative, however. For the franchise form of distribution, production and consumption rearrange a field of commercial activity from small, cottage-like operations into a more centralised, organised and wealthier field of business activity.

Several adjacent developments have further facilitated this new structural arrangement. Two examples can be mentioned here. The first involves the growth of international television and screen markets held annually in North America, Western Europe and East Asia which are designed as a means of putting franchisors in touch with franchisees (Havens, 2006; Moran and Malbon, 2006; Bielby and Harrington, 2008). The second instance of this development concerns the appearance of trade bodies that bring franchisors together. And while there is no such thing as a Media Franchising Association--at least not until now--there is a Format Registration and Protection Association (FRAPA), a worldwide body representing those involved in television program format franchising.

A second general logic at work involves intellectual property monopoly. It has to do with corporate ability to multiply and extend culture through copyright and trade mark protection (du Gay and Pryke, 2002; Johnson, 2009; McLeod, 2001). Intellectual property law is seen as a means of protecting franchise properties against infringement, with those involved in television program formats and media intertexts emphasising different areas of law in their particular strategies of defence and control. These different forms of legal control are discussed in more detail below.

The third logic at work has to do with corporate tendencies towards growth, not only for efficiencies associated with scale but also for market advantages in terms of vertical and horizontal integration. Whether or not it is pursued through discourses of 'synerby', this tendency encourages coordinated growth across product lines and corporate boundaries alike (Birkeland, 2002; Johnson, 2009).

The strategies serving such a drive are various, and include merger and acquisition, takeover, co-venture arrangements and co-productions. The net effect of these is for market power to fall increasingly under the control of large media corporations while independent franchising groups become increasingly marginalised. Writers reporting on trends in business-format franchising note a recent exponential growth in this area, thereby symbolising and confirming the operation of this logic (Birkeland, 2002; Johnson, 2009; Meehan, 1991).

Two types of media franchise

Up to this point, I have spoken about the media franchise as though it were a single cultural and commercial practice of the 'business-format' method in the area of the small and big screens. Yet the fact remains that two different types or applications have been identified. The first has to do with television program format licensing, a practice that has witnessed spectacular commercial and cultural growth since around 2000 after a slow evolution over the previous 60 years (Moran, 2013). US television program producers were slow to recognise the commercial potential of formats because of their long dominance in the worldwide export of canned or finished programs. That exposure militated against their early entry into the growing television program format trade. As a result, the format business has been dominated by other national television industries, most especially those of Britain and the Netherlands. Not surprisingly, a good deal of critical research concerning the phenomenon and its meaning has tended to be of Western European rather than US origin (Moran, 1998, 2013; Moran and Malbon, 2006).

The following general outline of television program format franchising has emerged thanks in part to data assembled by the industry's most prominent organisation as well as analysis by critical researchers. Television program format franchising is more valuable than the disparate local industries out of which it has grown. While the trade is said to be global, it is especially prevalent in Western Europe, the United States, parts of East Asia and the Pacific. Its three most dominant national television industries are those of Britain, the Netherlands and the United States. Its largest companies are Endemol, FremantleMedia, the BBC, STP (Sony) and US screen producers such as Warners and Paramount (Moran and Malbon, 2006: 14ff).

This form of franchising seeks to generate profit, not least by multi-platforming. Other media outlets are tapped into by licensees, both to facilitate marketing and as a means of improving revenue streams. Despite this ambition, the fact is that television program format franchising has been dominated by horizontal integration. While extensive television program format licensing continues, it is more profitable for a format owner or devisor to also be involved in the local production of a format rather than licensing it to another party. Companies and corporations have spread their business activities accordingly by means of establishing offshore production branches, through the takeover of existing offshore companies, by entering into co-venture arrangements and by setting up co-production with partners in territories elsewhere.

The second form of media franchising involves what is variously called the media intertext, the entertainment franchise or the transmedia brand. I will adopt the first label, which has the virtue of referring to a product line or network of texts that are relatively distinct from one another, although also interrelated. The media intertext is an outcome of mass commercial culture, with its origins lying in such cultural forms as comic books, radio, film and early television (Hark, 1999; Kackman, 2008; Rogers, 1999; Santo, 2006). The progressive articulation of media outlets, distribution systems and content production across multiple channels encouraged repackaging and recycling, so that a product's component parts could earn multiple revenues. While there were signs of this imminent development in the United States in the 1930s, it was not until the 1950s that the media intertext emerged as a form of franchising with product lines that extended well beyond the media itself and into multiple areas of consumption.

Media intertext franchising is far more valuable than television program format franchising. Its principal agencies are the conglomerate media giants of the entertainment/ information industries, such as Time Warner, Paramount and Fox (Johnson, 2009; McLeod, 2001; Meehan, 1991). These companies are US based, and that market generates initial profits for the media intertext as well as shaping expectation about worldwide franchising performance. These companies are vertically integrated entities, and their multimedia outlets for music, film, print and video serve as opportunities for new, highly profitable embodiments of content. And even beyond these iterations, there are further horizontal arrangements in place whereby the media intertext finds embodiment in other settings, including toys, bedding, trinkets, fast food, cups and the other minutiae of everyday life (Kackman, 2008; Meehan, 1991).

Beyond these incidental details about ownership, strategic business relationships and marketing, one other area of development has had a crucial role in shaping the specific practices of these two forms of media franchising. It concerns shifts in legal regimes, particularly developments in intellectual property protection measures. The two forms of franchising elaborated here have sought to defend and expand their business practice by recourse to two different areas of law. These legal mechanisms are the subjects of the next two sections.

Television format franchising and copyright law

Copyright is a notion founded on the Romantic concept of authorship. It seeks to offer a limited protection to the author's expression as it is embodied in a work. This expression is regarded as a unique, original creative, self-contained work that is given a limited monopoly to help protect the livelihood of the author-originator. However, the concept was extended over time. Originality became synonymous not only with qualities of expression, including novelty and creativity, but also with a source--a point of origin. This shift made it possible under copyright law to recognise the owner of any rights in a creative work--whether individual or corporate--over the real author. In other words, any legal entity, including a company, can stand in for the author under copyright law (Gaines, 1991; McLeod, 2001; Mero, 1992; Nimmer and Nimmer, 1978).

Three legal measures have been resorted to in an attempt to protect television program format franchising: copyright law, breach of confidence and passing off (van Manen, 1994; Moran, 1998; Moran and Malbon, 2006). The first has tended to take centre stage over the other two. For instance, van Manen's 1994 legal handbook--the first dealing exclusively with television program formats--concentrates on the protection afforded to format devisors and owners by copyright law (1994: 25-68). The area is also the one that receives most attention in other legal commentary. Van Manen cites a number of recent cases of legal action in the Netherlands, France, Germany, the United Kingdom and the United States that were based on perceived copyright infringement. However, what was and is most revealing is the fact that all these actions were lost, leading the author to suggest that 'the extent or magnitude of protection afforded by the copyright act is not large' (van Manen, 1994: 50-77).

Instead, van Manen urges producers to include in their contracts every possible means of legal protection in the area of intellectual property--a call that is echoed elsewhere. These measures include patent law, brand names and trade marks (van Manen, 1994: 69-121; Moran and Malbon, 2006: 90-110). Meanwhile, in the television program format franchising industry, format owners, producers and others struggle on with abiding faith in copyright law defence, behaving as though formats have solid legal protection. However, as Singh and Kretschner (2012) have shown most recently, this uneasy regime of copyright law only works because the threat (and sometimes the reality) of legal action is never very far away. Yet, if we turn to the other kind of media franchising under discussion, we find that a different legal shield is employed to protect the 'intellectual property' of the format.

Media intertext franchising and trade mark law

The media intertext is a kind of transmedia global brand usually spiralling well beyond television broadcast. It is not surprising that legal protection has gone down a different pathway to that used by television format franchisers. In fact, what we find is that market pressure has replaced copyright law with trade mark law when it comes to defending this kind of cultural franchising (Gaines, 1991; McCarthy, 1984; McLeod, 2001; Nimmer and Nimmer, 1978).

Trade mark law is a branch of unfair competition law. It has evolved from a general philosophy of protecting the buyer against merchants who might deceive them about the true source of the goods or services they purchase. Over time, the law evolved in the direction of protecting merchants against each other rather than protecting the public buying their goods or services. This reversal in Anglo-American common law resulted in the trade mark, ensuring that its merchant-owner is protected against infringers (Gaines, 1991; Nero, 1992). US law has increasingly come to recognise the trade mark as an asset or property. For, while copyright law still upholds some remnant of older cultural valuation of individual enterprise and creativity, the trade mark unashamedly sides with merchants in their endeavour to expand and control markets.

Various elements of a work have been claimed as trade marks, most especially the title of a work and a character contained within the work, a coincidence arising from the fact that very often the two are one and the same. This development was especially noticeable in 1950s US television broadcasting, although there were several earlier indications of the same development. For example, one actor star in B Westerns in the 1940s even resorted to legally changing his birth name to that of the fictional character that he played on screen as part of an unsuccessful legal battle for ownership and control of this right (Gaines, 1991; Kachman, 2008; Santo, 2006).

In fact, the operation of trade mark law is especially revelatory when it comes to the matter of character in a work. In copyright law, character is seen as an integral part of a work's wholeness and totality, whereas trade mark law increasingly views characters in a different way as detachable, mobile pieces, 'mere chessman', devices or vehicles for telling the story (Bowrey, 2011; Gaines, 1991; Hark, 1999). Understood in this way, a character property can be assigned elsewhere as part of a general commercial strategy of media companies to expand and control markets for this kind of cultural franchising (Holt, 2004).

Three such redeployments can be mentioned. First, there is the fact that characters are routinely assigned to second and third parties for merchandising and other brandings in exchange for royalties. The second is the fact that the shield of trade mark protection has also been expanded to include other properties associated with a character, including a logo and a shape or character image. Finally, there is the further fact that trade mark protection of character not only comprises such fictional figures as James Bond, Batman and Harry Potter, but also includes 'real' media celebrities such as Bruce Lee (Bowrey, 2011; Meehan, 1991; Webb, 2009). Such mobilities underline the fact that a name brand personality might be drawn from a source other than fiction.

In sum, this kind of screen franchising looks to trade mark law to defend and expand its business activity, whereas it once looked to copyright law. As Gaines points out, trade mark law has overtaken copyright law as the governing principle of character protection in popular formats (1991). There is no doubt about the commercial and legal effectiveness of this kind of law, a situation that offers possible lessons to television format franchisers who continue to depend on copyright law for protection against infringement. The next section is a case study concerning the Ugly Betty telenovela program format, most especially the extent to which, as a cultural commodity, it might be protectable under trade mark law.

The character of Ugly Betty

What is the possibility of crossover legal protection between television format franchising and media intertext franchising? Here I am especially interested in the potential of trade mark law rather than copyright law for protection of the franchise commodity that is Ugly Betty. The branding and marketing associated with a character is crucial for such a transition. This militates against other genres of program formats, especially those to do with 'live' reality TV programs. possibly being protectable under trade mark law.

The characterological dimension of the Ugly Betty television program format can be registered in several ways. Here, I am not concerned with details of the format's various adaptations or broadcast histories, but concentrate instead on some of the terms under which the program has been received by one small part of its worldwide audience. Thus I will draw examples from the excellent scholarly collection TV's Betty Goes Global: From Telenovela to International Brand (McCabe and Akass, 2013) to delineate elements of the characterological response to the program.

Three sets of responses are worth noting. First, Janet McCabe presents a personal element of direct address to the character that suggests the possibility of a kind of autonomous existence of the character beyond the program Ugly Betty. This kind of character branding is continued by the scholar's description of the opening of the US version of the series, which pays careful attention to shot framing, camera angle, the face of the young woman with little makeup, glasses, metallic braces, dishevelled hair and unruly eyebrows. McCabe also notes sound in the shot, which consists of a lyrical, even whimsical, violin heard against a staccato Latin beat. 'Ugly Betty'--the name of both the series and the character--appears in red and yellow in the form of flashes on the screen. The analysis concludes, 'Immediately, in less than 12 seconds in fact, the US Betty brand is established' (McCabe, 2013: 1).

Recalling that trade mark law concerning the media intertext franchise has extended to other elements associated with character, including shape and character image, we might suggest that what happens in the collection often has to do with strengthening the aura of the Betty character. Yeidy M. Rivero's chapter is titled 'Our Betty: Yo soy Betty, la fea's Success in Columbia' (Rivero, 2013: 45-63), while Dana Heller's end chapter is named 'Our Betty, Ourselves' (Heller, 2013: 240-54). This note of personalised ownership and intimate connection with the character of Betty is also evident in Bianca Lippert's comparison of the Columbian heroine with her German lookalike (Lippert, 2013: 83-98). The character branding that opens up the Ugly Betty franchising for possible trade mark law protection is especially prompted by the paperback cover of the McCabe and Akass collection. The title of the telenovela and the character of the young woman are one and the same. Four incarnations of the Betty archetype stare out at the reader, and initially these four faces might seem to be the same. All are young, have heavy black hair, dominant dark bushy eyebrows and wear thick dark glasses. Each Betty's outfit includes prominent braces, little makeup and light pinkish lipstick.

At the same time, in keeping with the fact of their different geocultural incarnations, these versions of the Betty character are subtly different. Columbian Betty (Beatriz in Yo soy Betty, la fea), who is top left on the cover, has the longest hair, pulled back into a kind of knot or ponytail, allowing the clasp earrings on her ears to be clearly seen. A cap or hat keeps the hair in place and completes her appearance. Indian Betty (Jasmeet in 'Jassi Jassi'), who appears alongside in the top right-hand corner, has hair that is probably long and pulled back with only a fringe to be seen. She also wears earrings of the kind that depend on pierced ears. Meanwhile, Czech and American Bettys are located in the bottom left- and right-hand corners. These two also have long hair, but theirs hangs down next to their faces. Both have fringes, although the American lookalike (Betty Suarez) has the heavier fringe and hair.

The same subtle variation is noticeable in other features. While all have braces, those belonging to the Czech Republic's Betty (Katka in Ugly Katka) are not as heavily metallic as the other three. Indian Betty has the darkest glasses. These are quite square and very heavy. Columbian Betty's, on the other hand, are not quite as heavy, are a maroon colour and are a little rounded in shape. The other two are also distinctive. Czech Betty has a type of glasses loosely associated with Beatle John Lennon, which are smaller again, oval in shape and framed in black wire while American Betty has oval, slimmer spectacle frames. There are further differences because of colour in the photos. Columbian Betty appears more swarthy. The other lookalikes seem paler in their complexions, while American Betty's face appears lightest of all.

Summing up, we can suggest that, even alongside the personalised, sisterly ways in which various of the contributors to the collection have written about character and program format, the collection's cover also plays its part. It too is recruited to the task of building the archetype or brand that is Ugly Betty the character and Ugly Betty the format.

Conclusions

Four findings can be gleaned from this discussion. The first conclusion is already clear, and is the surprising fact that those concerned with the commercial activity of franchising have been mostly unaware of developments in media franchising and vice versa. Handbooks about the business practice of franchising do not seem to consider whether the practice occurs in television and other media industries. This blind spot is replicated by media and communication scholars, who fail to consider how media franchising works--even though the term 'franchising' is frequently adopted. This article has sought to place franchising on the critical agenda for both realms of inquiry.

A second finding relates to similarities and differences between television program format franchising and media intertext franchising. The two practices have existed alongside each other in entertainment/information industries for over half a century. Still, media practitioners and critical researchers involved with one or the other have displayed little curiosity or interest about their near neighbours.

A third determination has to do with the potential protectability of television program formats such as Ugly Betty under a legal shield associated with the media intertext rather than the television format. The presence of dramatic character is crucial for facilitating the building of a brand associated with a fictional character's aura or image. So too is the very condition of format production, where a character is inevitably played by a clutch of actors rather than being embodied in one single face and body.

Finally, the goal of this article is that, as scholars, we will engage more systematically with repetition and variation as a means of advancing critical knowledge about our field of study. Ugly Betty as a telenovela program format has several 'prettier sisters' in that same genre. We would do well to introduce these family members to one another. By systematically outlining these two sets of commercial and cultural practices, I hope that these relatives get to learn more about themselves by learning about each other.

Note

(1) I am grateful to Janet McCabe for identifying the national source of each of the four Bettys.

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Albert Moran is Professor in Screen Studies and Production at Griffith University.
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