Advertise Strengths Without Disparaging the Competition

Economic downturns tend to produce an increase in comparative advertising campaigns. Meager sales revenues make it tempting to aggressively target the competitor's business. Consumers enjoy watching advertisers take potshots at each other. But a competitor whose weaknesses are targeted — not so much. A competitor can choose to respond in kind or legally challenge the ad. If the ad message is truthful and does not mislead or deceive consumers, then the challenge is generally not difficult to rebuff. A recent court opinion suggests that advertisers whose ads are challenged by competitors should look to commercial liability policies for advertising injury coverage. It may be possible to cover legal fees for defending ads challenged by competitors.

  
This recession has produced several memorable comparative ad campaigns. Apple's ad campaign personifying Microsoft and Apple computers was answered by Microsoft's "I'm a PC" spot, to which Apple responded with its "Bean Counter" spot. A soup war is raging between Campbell's and Progresso as to who has the healthiest soups. The opening salvo in the soup war began with a Campbell's print ad depicting a can of Progresso Chicken Noodle under the label "Made With MSG" soup next to a can of Campbell's Select Harvest Chicken Noodle soup under the label "made with TLC." Progresso responded with an ad depicting numerous Campbell's soup cans under the headline "Campbell's has 95 soups made with MSG." Neither the Apple-PC ads nor the Soup War ads have resulted in court action — possibly because these advertisers skillfully employ truthful statements mixed with puffery.

Read the full article at http://tinyurl.com/d9yykm.

Chimp Pranks Versus Outhouse Parodies

Reading in the Baltimore Sun about the firing of a WBAL-Baltimore NBC affiliate reporter John Sanders (no relation to me) for taking audio from Fox broadcast coverage of a missing monkey whose most distinuguishing feature is his "bright blue scrotum" and dubbing those words into Fox Anchor John Gibson's discussion of a speech by Attorney General Eric Holder. Strangely (or not maybe) , the Huffington Post posted the video as authentic.

News media may be hitting a new low in professionalism--but it reminds me of a "parody ad" published by Hustler Magazine targeting Reverend Jerry Falwell. The ad mocked a series of ads Campari was running during that period under the double entendre theme "X talks about his first time." On a page labeled "AD PARODY - NOT TO BE TAKEN SERIOUSLY", Hustler publishes a fake interview with Falwell in which the Moral Majority chief discloses that his first time was in an outhouse with his mother. (Wikipedia displays a copy of the ad here.) Falwell sued Hustler for defamation and intentional infliction of emotional distress.

Trial court awarded Falwell $150,000 in damages and Flint appealed on First Amendment grounds. Falwell argued that the piece was so outrageous as to remove First Amendment protection. The Supreme Court did not agree. Noting that outrage is subjective, the court reversed--holding that the trial court's decision to award damages to a satirized public figure for emotional distress unreasonably burdens non-obscene speech by political cartoonists and satirists. Speech considered vital to our society. The Court also found for Flint on the defamation claim because no one would believe that the "AD PARODY" was factual anyway.

In the Bright Blue Scrotum prank, Eric Holder is the obviously satirized public figure. But to add a twist to the Falwellian analysis, Fox Anchor John Gibson was also smeared by Sanders' prank and Huffington Post's (now retracted) publishing of the prank video as authentic. I'll let you know if my law school class thinks Gibson has a case against Huffington Post. Since the internet is considered to be self-correcting and the Huffington Post aplogized to Gibson, I know at least one IP lawyer who wouldn't take his case on contingency.

Do Family Videos Require a Take-Down Notice?

If a kid posts a prank video to YouTube, a copyright owner that believes its copyright was infringed sends YouTube a DMCA* take-down notice. If YouTube complies, its not liable for the infringement under the DMCA's safe harbor for internet service providers. Since the kid is small potatoes, removal of the offending video generally ends the controversy.

But not always--Stephanie Lenz posted a home video to YouTube of her toddler taking his first dance steps so her inlaws could see. Twenty second of Prince's Let's Go Crazy plays in the background. --Maybe-- I didn't hear any Prince. Universal Music Publishing Group did detect Prince on Lenz' video and automatically sent YouTube the customary DMCA take-down notice. YouTube sent Lenz' the notice and removed her video. Lenz' claims her video is fair use, and with the help of the Electronic Frontier Foundation asked a court for a ruling that Lenz had not infringed any UMPG copyright.

So far the Court has only said maybe that she might be right. The question is did UMPG have a reasonable belief that it's copyright was infringed? If UMPG recognized the Lenz video for what it is clearly is--a family video. And where UMPG's music's is clearly incidental to parental pride of toddler cuteness--did it have a reasonable belief?

Media so dominates human experience today that room must be reserved to freely permit documentation of personal experiences even if copyright protected media is incidentally captured.

*Digital Millennium Copyright Act (yes, it's way more complicated than this--but this is the "cliff notes" version.)

AAF Government Report

The AAF Government Report (2/15/2009) notes

The House and Senate agreed in Senate Bill 352 to postpone the analog to digital television transition to June 13, 2009, and extends (pending budget authority) the period during which converter box coupons will be available and provides for replacement coupons for those that expire.

The AAF hosted Rep. Joe Crowley (D. NY), a key member of the house Ways and Means Committee, at a breakfast meet and greet to allow advertising executives discuss their business and industry particularly in light of renewed interest in limiting the income tax deduction for advertising expenses.

The FDA announced that is will conduct a study on DTC advertising in which it proposes to show 2400 subjects a fictional blood pressure medication ad to guage the typical consumer's understanding of the presentation of the risks and benefits presented in the ad. THe FDA said that the study is needed to develop standards called for in the FDA Amendments Act of 2007.

Outgoing Chair William Kovacic of the FTC, in the agency's self-assessment report FTC at 100: Into Our Second Century, commended self-regulation by the advertising industry, particularly by the BBB's National Advertising Division and the National Advertising Review Council. Chairman Kovacic noted that industry self regulation is particularly suited to advertising in which government restrictions implicate First Amendment concerns.

New Tax Proposals

The Sun is reporting today that Sen. Barbara Mikulski is concerned that her proposal including in the massive stimulus package to provide new car buyers with a tax rebate may end up on the conference committee's cutting room floor. Her proposal could be worth $1,500 to the buyer of a $25,000 car. Sen. Mikulski is urging voters to call House members and the White House to demand that Congress preserve the tax break.

The Daily Records' Andy Rosen reports today in his Eye on Annapolis blog today that several new tax proposals were introduced this week--

Del. Bill Bronrott introduced a bill that would raise the tax on beer, wine and spirits. The bill proposes to raise the tax on beer from 9 to 36 cents per gallon. The tax on wine would rise from 40 cents t.o $1.60, and the tax on distilled spirits would go up from $1.50 to $6 per gallon. Rosen reports that Bronrott more than half the money raised would go to alcohol treatment and counseling programs.

A second bill (the Snack Tax) seeks to raise a tax on snacks sold in vending machines.

A third bill, introduced by Sen. Paul Pinsky D. PG County, seeks to have combined tax reporting in Maryland, charging companies based on the business they do in Maryland rather than the company's location, and would allow the comptroller to drop the corporate rate below 8.25%. A commission is studying the combined reporting proposal.

Shepherd Fairey files First, Can AP show Ownership?

Street artist Shepard Fairey, creator of the Obama HOPE poster, filed for a declaratory judgment from the federal court in Manhattan that his use of a photograph to create the HOPE poster is a fair use. The lawsuit was filed following the Associated Press' announcement that it owns the copyright in the underlying photo and did not consent to Mr. Fairey's use.

Copyright provides the "author" of creative expression fixed in a tangible medium with the exclusive rights to reproduce, distribute, adapt, display and perform the work. Use without the author's permission is infringement unless a defense applies. "Fair Use" is a complex defense to copyright infringement that requires courts to apply four nonexclusive factors to the particular situation of each case alleging fair use. Comparison pictures and a copy of the court papers filed by Mr. Fairey's attorneys are posted on the San Jose Mercury's website here.

Attorney Anthony Falzone of the Stanford Copyright & Fair Use Center is representing Mr. Fairey. The Stanford Copyright & Fair Use Center has defended clients in several high profile copyright fair use cases, including actor Ben Stein and the producers of Expelled, a documentary film that the court determined 'fairly used' a portion of John Lennon's Imagine without his estate's permission.

AP claims that the photo was shot by Manny Garcia who was working as an AP staff photographer at the time the photograph was created in 2006. Mr. Garcia, according to the San Jose Mercury, disputes that he was an AP staff photographer and has gone on the record as being proud that his photo was made into the now historic poster. For AP to claim copyright infringement of the original photo requires that either (1) Mr. Garcia was an employee of AP when he snapped the photo, or (2) if he was an independent contractor on assignment, that Mr. Garcia signed a written agreement transferring all rights in the photo to AP as a Work Made For Hire (for a project that qualified for treatment as a WMFH) or assigning AP the exclusive rights to reproduce and distribute his photo.

On this copyright ownership issue-- I know that many of you are tired of my rant--but a written agreement between content creators can save a lot of hassle later!