Twitter Allows Advertising

BBJ reports today that Twitter has changed its policy to allow advertising. It's understandable - surprisingly the Internets has an actual cost (!) but also game-changing. Okay we're all aware (a) that ad tweets are highly annoying; and (b) marketers need to follow the current (and proposed) FTC guidelines for endorsements and testimonials when hyping--ahem--discussing products and services. But now there is a new consideration.

The presence of advertising on Twitter converts the website where your tweets appear from editorial to commercial. That conversion casts a commercial light on the messages you tweet. The commercial effect means that parodying celebrities, criticizing brand owners, twitterature, and linking to other websites will cause those so tweeting to climb a steeper slope to prove fair use. Think twice before you use someone else's brand, name, prose, or news story.

Although some brand owners show that they are starting to "get" the important crowd sourcing and grassrooting roles that apps like Twitter provide, many others do not. Some of the great accounts may disappear. That's disappointing since many of the parody and brand criticism tweets like my personal fave, UnPeter Angelos, have an important role in giving readers uncontrollable belly laughs or providing important unfiltered info to consumers.

How to Rock Your Film - Without Landing in Copyright Jail

It's a miracle that Nina Paley's feature length animation, "Sita Sings the Blues," escaped a life sentence. Sadly many films never do. Great music enhances film and video. Digital video editing tools make it easy to add popular music and remixes to a film. Unfortunately, permission to use commercial music in an independent film is not easy to acquire. Filmmakers, who sync commercial music to their films planning to seek permission later when the film attracts investors, are often devastated to learn that the music is unavailable or prohibitively expensive.

Filmmaker Nina Paley is one of the lucky few who find a way to keep their films out of copyright jail. A veteran of syndicated comic strips, Paley began creating short animations in 1998. Inspired by a Ramayana tale she encountered while living in India, Paley spent 5 years creating "Sita Sings the Blues" by hand. Along the way Paley was attracted to similar themes of romance gone wrong found in Annette Hanshaw's 1920's blues recordings. Paley did some research and concluded that her desired recordings are in the public domain. So she developed her animation to sync with Hanshaw's recordings and entered "Sita Sings the Blues" in several film festivals. As it often happens, Paley won awards and was soon offered distribution deals.

Unfortunately, Paley then learned that the songs Hanshaw sang in the recordings were not public domain. Click to continue...

Maryland Employers Improperly Classifying Workers as Independent Contractors Do So at Their Peril

On July 14, 2009, Maryland Governor Martin O'Malley signed an Executive Order establishing The Joint Employment Task Force on Workplace Fraud (Download PDF). Maryland businesses which fail to properly classify individuals as employees as opposed to independent contractors will face large fines, penalties and assessments by treating an individual as an independent contractor when that individual should be treated as an employee. Employers may have heard about recently enacted language focused on the construction and landscaping business, but this Executive Order establishes a Task Force that may affect all Maryland businesses.
This Executive Order comes on the heels of the passage of Maryland Senate Bill 909, the Workplace Fraud Act of 2009, which will take effect on October 1, 2009, and will affect construction and landscaping businesses operating in Maryland. The Executive Order on The Joint Employment Task Force on Workplace Fraud seeks to coordinate and expand in areas other than construction or landscaping. One of its goals is "to develop strategies for systematic investigations of workplace fraud within those industries in which misclassification is most common," and "to consult with representatives of business, organized labor and other agencies to improve and expand upon the operation and effectiveness of the Task Force and its members." This new executive order is a "preview of coming attractions" for Maryland employers other than construction and landscaping contractors. Any Maryland employer utilizing "independent contractors" needs to carefully evaluate its practices because if the newly created law dealing with construction and landscaping contractors expands into other areas at the recommendation of the Joint Employment Task Force on Workplace Fraud, it is conceivable and even likely that the draconian logic of the newly enacted workplace fraud law will be expanded to other types of businesses. Click to Continue...

Tell your Congressmen - NO TAX ON DTC ADS!

Clark Rector, Head of Government Affairs for the AAF has issued an urgent request that we all email our Congressmen ASAP to protest reducing or eliminating tax deductions for Direct To Consumer pharmaceutical advertising in connection with funding healthcare reform. The result would be an unconsitutional tax on DTC ads and a restraint on speech. Worse, it could encourage Congress to eliminate deductions for all advertising.

Rector: "The Ways and Means Committee is scheduled to release it's list of revenue options for healthcare reform on Friday [TOMORROW!]. We are down to the final hours that we have to convince members of the committee and others in the House of Representatives, that it would be bad policy and very harmful to media and advertising industries to impose a tax on the advertising of prescription medications. By denying the ordinary and necessary business expense deduction for this advertising, it would be the first time in history that the Congress would have targeted one form of speech and made it more expensive in order to discourage people from speaking.

Every advertising club member, every newspaper publisher, every magazine publisher, every broadcaster who calls his or her Member of Congress is critical to this effort. We only have a few hours left. Be sure that every member of Ways and Means hears our message."

Clark's message may be read seen in the AAF Government Affairs bulletin linked at right. His message includs a letter from Global Insight that predicts that potential tax revenue from the proposed DTC Ad Tax is far less than the Ways and Means Committee estimates.

Clark also attached a letter from the Advertising Coalition (comprised of the AAF, 4A's, ANA Broadcasters and other media) urging the House Ways and Means Committee to look elsewhere for healthcare reform funding because in addition to raising only modest tax revenue the DTC Ad Tax is an unconsitutional restriction of speach and will further slow the economic recovery of the advertising industry.

Email Maryland Congressman Chris Van Hollen who is on the Ways and Means Committee and let him know that you do not support the DTC Ad Tax and that it will have a devastating impact on the advertising industry! Then email your Congressmen.

Here is suggested text:

Dear Congressman ______:

As a taxpayer working in Maryland's advertising industry, I oppose any effort to eliminate tax deductions for the cost of advertising prescription drugs. There are several compelling reasons NOT to eliminate the deduction of advertising prescription drugs as ordinary and necessary business expense:

• It will increase the cost of informing the consumer about prescription drugs by 35%. If an advertiser is taxed at the highest corporate rate of 35%, the loss of the deduction for prescription drug advertising becomes a 35% tax on such advertising.
• Taxing advertising expenses for prescription drugs but not other advertising expenses is discriminatory.
• Taxing advertising expenses for prescription drugs chills constitutionally protected commercial speech. In 1936, the Supreme Court struck down a 2% tax on newspapers as an unconstitutional restraint on speech in Grosjean v. American Press Co.
• Consumers - particularly elderly consumers - will receive less information about prescription drug choices if advertisers reduce spending on prescription drug advertising.
• Legislation requiring a tax on advertising expenses for prescription drugs will make it easier to tax other advertising expenses, adversely affecting the advertising industry.

Advertising for all products and services helps generate $6 trillion in U.S. economic activity and supports more than 21 million jobs. I request that you do not support any legislation that eliminates tax deductions for the cost of advertising prescription drugs.

Sincerely,

Your Name
Address

Have the Munchies for Self Regulation of Cookies?

Today's Wall Street Journal reports ($ - sorry) that the 4As, ANA, IAB and DMA are expected to announce new guidelines to better protect consumers' privacy online soon. The joint recommendation is to give consumers more control by employing an icon that appears when a website is tracking consumer information. Clicking the icon would reveal what information is tracked and how it is being used.

Yawn. Yes, there are people who don't realize that websites work more efficiently when tracking applications ("Cookies" etc) remember your shopping preferences. And in return, few of us actually mind that websites serve up ads that reflect our wants and needs. Those who do can use Ad Blocker but bear in mind that these free websites we love could disapear with out our eyeballs seeing the ads! Cookies are pretty basic web tracking applications. But how we protect our privacy become considerably less clear when we participate in one of the multitude of social networking "quizzes." These "Which Back Street Boy are you?" quizzes quietly examine and quantify our demographics while we share our humorous test results with our "friends" online.

The 4As' industry self regulation effort followed closely on the heals of an FTC announcement that Sears agreed to enter into a consent order because its website did not effectively apprise visitors of Sears' collection and use of visitor information. The FTC had previously announced that it would allow the industry to pursue self-regulation, but wants meaningful guidelines for websites and consumers. Let your representatives know that self regulation and educating online consumers is more effective than increasing regulation. The Sears Consent Agreement makes it crystal clear that the FTC Commissioners are not going to be patient with the online ad industry.

Two important tips for online businesses arise from the Sears FTC action -- (1) Sears' website must now clearly, conspicuously display its privacy policy separate from the its terms of use. (2) Sears must provide a means to allow a visitor to agree or "opt in" before enabling the tracking applications to collect his or her consumer information. If this sounds familiar, the requirements in the FTC consent order are similar California's privacy statute. It would be a good idea to check your privacy policy now! Do you have one?

Lawsuit planned to challenge FDA tobacco regulation

Congress passed legislation on June 12 that places tobacco under the purview of the FDA. The bill, H.R. 1256/S. 982, was sent to President Obama, who announced that he would sign it, but the signing ceremony has been announced. The New York Times reported last Sunday that one aspect of the legislation -- the reimplementation of a 1996 regulation that restricts tobacco advertising within 1000' of schools and limits certain tobacco advertising and labelling to black text on a white background. It seems likely that the tobacco advertising regulation will be challenged on free speech grounds. The Congressional Research Service issued a report analyzing H.R. 1256/S. 982 suggesting that the 1996 advertising rules are unconstitutional. The Supreme Court in Lorillard Tobacco
Co. v. Reilly (2001) decided that the same regulation-- restricting tobacco ads near schools did not meet the four-part test for deciding the constitutionality of commercial speech regulation set out in its earlier decision in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980).

Mr. Obama advocates an open and tranparent government process and actively solicits feedback, so make your opinion known by contacting the President here http://www.twitter.com/whitehouse or in email here http://www.whitehouse.gov/contact/.

Minnesota Consider Sales Tax on Unboxed Items

"Unboxed" does not refer to purchases of bulk organic oats and the like. Unboxed is music and video downloads. Today's AAF Government Report notes that a bill has been introduced in the Minnesota Legislature to tax "specified digital products." Specified digital products is defined to include digital music and videos, ringtones, e-books and electronic greeting cards.

Relevant to the advertising community -- The bill also includes digital artwork and periodicals as specified digital products.