The global fantasy phenomenon based on George R.R Martin’s acclaimed ‘A Song of Ice and Fire’ book series, featuring kings, queens, fire-breathing dragons and an army of the undead, has long been the target of online piracy and IP infringement.
The internet is certainly dark and full of terrors for Game of Thrones’ rights holders. The franchise, valued at over US$1billion, faces pirate streams, downloads, torrents and fake DVDs. But it is also victim to trademark infringement, with the series’ signature typeface regularly being re-appropriated in unrelated advertisements and digital media, even appearing in the US president’s tweets. As with any popular franchise, HBO has also had to contend with counterfeit merchandise available online.
With the epic saga now concluded, we break down the online infringements that have followed in its wake and showcase how the scale of the issue has increased as the show has grown in popularity.
The threat of piracy
HBO has been locked in a war of attrition with online pirates since airing the first season, with the stakes continually being raised. In a turn of events with consequences akin to the Red Wedding, the first four episodes of season five were leaked by a media source before the premier and made their way onto pirate websites. This was a serious blow for HBO and undoubtedly led to revenue loss for the premium television network and its partners such as Sky.
Since then, HBO has been increasingly cautious as to whom in the media it permits sending early-screening versions of episodes to. To guarantee no aspect of season 8’s secretive production leaked, the show’s actors were only given scripts for scenes involving their characters and had to access these scripts on ‘firewall protected’ iPads1. No hard copies were ever distributed.
Whilst HBO has been successful in preventing major leaks over the last two seasons and has increased its subscriber base, it has not been able to effectively fight online piracy once episodes aired. Season 7’s premiere saw more than 90 million combined illegal downloads or streams in the first 72 hours2. And whilst final three-day data is yet to be released, the season 8 premiere is well on track to beat this previous record, with almost 55 million pirated views across illegal streams, downloads, and torrents in the first 24 hours3.
HBO only owns the standard character mark for the phrase ‘Winter is Coming’ in physical goods classes, meaning that the TV network would have no basis in which to claim infringement for most uses online.
However, there are instances where HBO’s rights are potentially infringed; take Donald Trump’s recent tweet for example:
Donald Trump’s tweet from January 2019. *Season 7 spoiler ahead* As an aside, it is ironic to invoke The Wall in Game of Thrones, a structure which was somewhat blown apart by an undead dragon.
By using an almost identical typeface to that of the series and attempting to emulate the smoke-filled backgrounds seen in Game of Thrones promotional posters and thumbnails, Trump is treading a thin line in regard to intellectual property infringement. It would be difficult to argue that there is no attempt at association with the TV show, given the messaging of the poster and overall creative execution.
The difficulty in bringing a lawsuit against the President is that it is unclear as to whether there is close enough association, with the defendant likely to argue it falls under fair use or parody.
Countless counterfeits and unlicensed goods
Jaqen H’Ghar is one of the Faceless Men, a shadowy group of assassins able to change their appearance at will. The counterfeiters of the world of Ice and Fire, if you will.
Typing ‘Game of Thrones’ into an online marketplace will result in pages upon pages of ‘inspired’ clothing and other merchandise, with some of this being fan-made by independent artists. Provided these articles do not use HBO’s trademarks, they are not infringing and can be argued to somewhat benefit the rights holders by increasing the show’s online visibility.
However, much of what purports to be official ‘merchandise’ is unlicensed and guilty of trademark infringement by using the character marks ‘Winter is Coming’ and ‘Game of Thrones’, and appropriating the show’s well known ‘circular bar’ typeface. Much to the approval of the Faceless Men, these fakes often fool the well-intentioned consumer into thinking they are genuine.
Counterfeit merchandise is of lower quality, with discounted prices often the key giveaway of authenticity; there is also little way of knowing where the article came from and the conditions of those that produced it.
In addition to an infringing sponsored item appearing at the top of a search for the term ‘Winter is coming’, the first two organic results are unlicensed products which infringe the character mark ‘WINTER IS COMING’.
How can large franchises protect their IP?
Media productions need to be aware of the scale of online infringement affecting their IP. Instead of relying on manual legal enforcement, rights holders should use a technology-based solution to root out trademark abuse and copyright infringement, and sophisticated piracy databases to take down illegal streams and downloads. Using an intelligence-led approach, rights holders can connect infringers working as part of larger networks to take down commercial scale operations.
At Corsearch, we work with our clients to create effective online brand protection strategies, leveraging our expertise in intellectual property, criminal intelligence and technical design. If you believe your IP is being infringed and are interested to see the scale of the online threats, talk to one of our brand protection experts today.
This blog was originally published on the Incopro website. Incopro was acquired by Corsearch in 2021, with the two organizations combining their technology and expertise to better serve the market.