It All Adds Up Advertising, Promotions & Celebrity Endorsements in a Digital, Mobile, Social & Augm

Good morning, good afternoon, everyone. Thank you for attending today's CLE webinar, It All Adds Up: Advertising, Promotions, and Celebrity Endorsements in a Digital, Mobile, Social, and Augmented World. Your presenter today is Mr. Joe Rosenbaum. Mr. Rosenbaum is a New York-based partner at Rimond PC, chair of Rimond's Global Alliance, an internationally recognized multidisciplinary corporate commercial lawyer, and a noted thought leader, author, and speaker in matters relating to the legal implications of digital and mobile technology. His recent credits include contributing author to the Handbook on Global Social Media Law for Business Lawyers, published by the American Bar Association, and a practice note on complying with New York's sweepstakes law, published by Practical Law of Thomson Reuters. His articles have appeared in the National Law Journal, New York Law Journal, and Euromoney. He has been interviewed on CNBC's Squawk Box and CNN Financial's Business Unusual, and he has He has been quoted in Advertising Age, The American Banker, The Wall Street Journal Online, and Forbes.com. Joe has served as outside general counsel to the Interactive Advertising Bureau, the Advertising Research Foundation, and the Association of Hispanic Advertising Agencies, and is currently outside counsel to AMIM, a membership association with over 25 independently owned major advertising agencies in North America and WorldCom Public Relations Group, with over 100 international public relations agencies operating in over 95 cities on 6 continents. Joe serves on the advisory board of the Center for Law, Science, and Innovation at the Sandra Day O'Connor College of Law in Arizona and the Innovation Center for the Law and Technology at New York Law School in New York. If you have questions during the presentation, please type them into the Q&A box. And direct them to the panelists. Questions will be answered at the end of the webinar. Remember that a code will be shown during the presentation. Please make sure to write it down as you will need it in order to claim your CLE certificate. After the presentation, we will email you with instructions on how to claim your credits. This presentation will be recorded and will be posted on our website for future reference. I will now give the floor to Mr. Rosenbaum.

Thank you, Sylvia, and thank you all for, for participating. Appreciate your, your time and your consideration. We have a lot of material to cover today, and what I'm going to do is rather than read each slide, I've got a number of videos that demonstrate many of the concepts that we're trying to kind of go over. These are basic principles of advertising law, which as you might imagine have gotten more complicated over the last 15 or 20 years with the advent of the internet and online and mobile technology, which has created increasing amounts of scrutiny by the Federal Trade Commission, among others. So let's dive right into the subject matter. And again, as Sylvia mentioned in her gracious introduction, If you have any questions, please feel free to kind of jot them down. I'll try to answer them all at the end. You're also free to email me after the presentation and get in touch if you have any further questions. So let's start with what an advertisement is for those of you that are maybe new to this. It's a communication that is intended to promote the sale or use of products or services. And is also intended to inform and influence people. Today's world, there is a great deal of blurring between advertisers and consumers. Consumers can generate user-generated content. Users have interactive conversations on social media platforms. And many of the technology and search companies have gotten into the advertising publishing business as well. As you may understand, telecommunications and gaming companies have become distribution platforms for advertising as well. So, it has become an increasingly complex world. And if you look back in the good old days, there were advertisements for cocaine toothbrushes— tooth drops, sorry, cigarettes. And frankly, the lower right shows an advertisement that was in a Boys' Life magazine 1966. So it was even legal to advertise selling guns to children probably about 50 years ago. Today we have a huge number of agencies, both at the federal level and at the state level, and self-regulatory agencies. So the primary regulatory body that— or agency that regulates advertising is the Federal Trade Commission, but obviously the Federal Communications Commission, which has responsibility for overseeing broadcast and cable licensing, the Securities and Exchange Commission for the sale of securities and the promotion of any sale of it, the Department of Energy, the Department of Treasury, Commerce, Environmental Protection, the US Food and Drug Administration. My favorite is the National Association of Attorneys General that I endearingly refer to as NAGS. And then you have a plethora of self-regulatory bodies, whether it's the 4 A's, the Better Business Bureau, the, the National Advertising Division, the Interactive Advertising Bureau, among others. So that being said, bear in mind that they do not have the staff or the resources to be reviewing every single advertisement, every single commercial that's placed on television or on— in the print, whether it's in print or media, and certainly not online. And so the primary source of referrals of complaints about deceptive advertising generally comes from your competitors. When one company advertises its products or services and a competitor believes that those advertisements may be misleading or difficult or deceptive to a consumer to their detriment, those are the folks who will bring to the attention of the regulators, in addition to, in some cases, the right to bring a civil suit. So today we have industries, activities, and demographics, and again, you can read this list on your own at your leisure. I understand that each of you have been sent a copy of this, so you can read them. But here are the, you know, kind of a high-level outline of some of the areas that are being regulated today. The primary regulator, as I mentioned, is the Federal Trade Commission, which has under its Section 5 of the FTC Act, the basic premise or the basic foundation of its authority to regulate advertising is unfair methods of competition in or affecting commerce. And unfair or deceptive acts or practices in or affecting commerce are hereby declared unlawful. That is the Section 5 of the Federal Trade Commission Act. And we're not going to talk very much about unfair advertising. This generally relates to forcing consumers to buy unwanted goods, for example, bundling them together so that you must buy one to get another. Selling consumers on an as-is basis or kind of locking consumers into expensive long-term contracts. Those are considered unfair. In general, they can violate public policy. But the primary issue today, and what we are going to discuss for the rest of this program, is deceptive advertising. And deceptive advertising is defined by the Federal Trade Commission in summary Any advertising that has a representation of any kind or omits information that is likely to mislead a consumer, would be deceptive to a reasonable consumer, or in the case of omissions, for example, is material, which means that you omit to add information that might be relevant or material to a consumer making a purchase decision. For the goods and services that are being advertised. So the first inquiry that we look at, and this is true whether you're on social media or in radio, print, TV, or mobile advertising, is, is there a claim? And is the claim deceptive? There are generally three types of claims: express, implied, and net impression. Although, as I mentioned, you can omit material information that has the effect of creating a misleading or deceptive ad. An express statement, an express claim, here are some examples. Works wherever it hurts. Central London to Heathrow in 15 minutes from the UK. Organic coffee, natural food by Pret. And pain relievers. All of these are explicitly claims that are made to the consumer about their product or service. Now, the FTC has also said that express claims can be contained in your terms of service or terms of use, depending on how you refer to them, and privacy policies. The Federal Trade Commission construes each of these as explicit claims, in addition to the fact that they form binding contracts with the consumer. So in addition to the consumer having a contract right for breach of contract if you fail to honor your own terms or conditions or you violate your own privacy policy, those also can be considered deceptive and misleading under Section 5 of the Federal Trade Commission Act. And just for those of you that are kind of wondering whether or not they— the privacy policies and terms of use, which are typically found online or in mobile kind of material, the FTC basically takes the position that any online terms of use privacy policies that you make online also applies to the collection of the data offline unless you expressly convey that in writing in the agreement, whether it's the terms of use or the privacy policy. So here's an example. Of an implied claim, which is from Pom Wonderful, a company that has had its share of predicaments with the Federal Trade Commission. And here, the implication is that by drinking Pom Wonderful pomegranate juice, you will somehow live longer or be able to cheat death. Another example of an implied claim is one where there is deception by omission. Now, this ad by Gerber seems pretty straightforward, and it even has a disclaimer at the bottom that says that there was a study done in which they found that 88% of pediatricians who recommended baby food recommended Gerber. This was found to be deceptive Even though it was literally truthful. The reason is that what they didn't tell you is that Gerber actually conducted the survey of 600 pediatricians. Only 75 of those 600 actually recommended any branded form of baby food. And of those 75, they then took the ones that recommended Gerber out of those 70, 70 5 or so pediatricians. So while it is literally true that in the branded baby food kind of survey portion, um, 88% of pediatricians who recommended any form of branded food recommended Gerber, the truth is that if you look at the overall study, less than 15% of the pediatricians actually recommended Gerber. And as a result, because the study— because that fact was omitted from the materials in the ad, the Federal Trade Commission held that to be misleading and deceptive. Similarly, you know, information material to a purchase decision. If you look at the advertised hamburger on the left and the real hamburger on the right, you can kind of see why, even if they are literally true, meaning the ingredients that are contained in it are correct, It can be material to a purchase decision if that information is not accurately displayed or portrayed.

This is an example.

Now, notice the vehicle that is not being crushed by the truck.

Apparently not everyone appreciates the strength of the Volvo.

Now you would think that there's nothing particularly wrong with that ad. It's a demonstration of Volvo's ability to withstand crash testing. Unfortunately, when you look behind the scenes, this was actually a vehicle that had been reinforced with steel beams to protect it from being crushed. And again, the Federal Trade Commission has held numerous times that these demonstrations can't be faked or staged or manipulated. They have to work in real life. Some of you may remember the television program 24 starring Kiefer Sutherland. He plays an agent, Jack Bauer, And Nokia was sued because there was a scene in it where he was holding a Nokia phone about 200 feet below the surface of the earth in a mineshaft purporting to make a telephone call as if the Nokia phones would work, you know, underground in a mineshaft. And they were forced to kind of modify that film and kind of disclaim it because that was considered deceptive advertising. You can probably guess what the implicit claim is here. And for those of you that are watching, yes, these are real ads. Whoops, sorry, we went a little bit too far. Now take a look at this ad.

The amazing Isuzu Trooper II. Its 4-wheel drive can take you anywhere. In fact, I drove it up here myself. It has more seats than the Astrodome, plus enough cargo space to carry Texas. And Isuzu will accept marbles and seashells as payment, but they're selling fast, so you have to come in in 5 minutes. You have my word on it.

Right now, your local Isuzu.

So that ad clearly has a number of completely false misstatements, but it is permitted because it is so exaggerated, so hyperbolic, that not only can it not be reasonably proven or disproven, but no reasonable consumer would actually believe that that vehicle was driven up there or that Isuzu sells vehicles for clams and seashells. That may be the reason why Isuzu is no longer a vehicle in the United States being sold. But you've all seen the pizza boxes that say, "You've tried the rest, now try the best." Puffery does not require substantiation. That being said, it is important to point out that the Federal Trade Commission has held that in order to substantiate a claim, you must have proof in advance. There have been cases where claims were made and challenged, and the advertiser went out and did statistical surveys and ultimately proved that they were true. And the Federal Trade Commission still has said that's a violation of the law because they didn't know that it was true or they couldn't substantiate it in advance.

You're from back east, right? Yeah. Trust me on this one, man. The babes out here are different. Alcohol?

I don't know.

All the sunshine, I guess. Clean air, good food, something. They just really take care of themselves.

Oh yeah.

Hey, you work out? Great cheese comes from happy cows. Happy cows come from California. Real California cheese. It's the cheese.

So the People for the Ethical Treatment of Animals sued the California Milk Board claiming that not only was there no evidence that there were happy cows in California, but that even if the cows were happy, that doesn't prove in any way, shape, or form that the, the cheese is any better. The case went on for months. Eventually it was dismissed for all of the right reasons. Because nobody really believes that there are happy cows or that happy cows make better cheese. Um, but it cost them tens of thousands of dollars to defend. And in another case, a California man sued Kraft Nabisco, uh, claiming that consumers were deceived because they didn't disclose the content of their trans fatty acids and that people literally might be dying of Oreo overdoses every day. Fortunately, somebody convinced the plaintiff to dismiss the suit. In California, for those of you that are doing national advertising or even in California, the California Business and Professions Code Section 17500, 17500 defines a crime of false advertising, which allows any consumer, whether that consumer has actually been deceived or misled or used the product can bring a claim or an action in California based on false or deceptive advertising.

A popular price pizza? Is it Tony's? Do I know? Maybe that's because of the 3 leading popular price pizzas. Only Tony's uses 100% real cheese in all their pizzas. The others use artificial cheese. Artificial? Made from casein. Casein, the main ingredient in some blues. Hello. Next time, try Tony's Pizza with 100% real cheese.

So this was an advertisement that was aired by Tony's Pizza. The net impression of the ad was that other pizzas are made with cheese that is artificial and contains the chemical casein. For those of you that aren't biochemistry majors, casein happens to be one of a family of chemicals called phosphoproteins. And it also represents about 80% of the proteins that are commonly found in cow's milk and about 20 to 45% in human milk. And while it has a variety of uses, including in glue, which is often used in glue for children's applications because they do tend to put things in their mouths, it is a major component of food and food products. And so the Casein Foundation of America challenged the ad, which ultimately was found to be misleading and deceptive. And so they had to pull the ad. This is an example, classic example of the net impression of the ad, even though what was said in the ad was actually literally true. So here's an example of a product placement.

5 positions on the Chicago Commodities Exchange and made 3 trades in Hong Kong.

I'm going to skip a little bit to the end of this. This trailer was aired in thousands of movie theaters. There is no movie Lucky Star. For those of you that don't know it, Lucky Star is the term in German for the 3-pointed star that makes up the Mercedes-Benz And this was designed to be Mercedes' answer to the BMW short films, although significantly starring Benicio del Toro and Ana Christina, directed by Michael Mann. And the scuttlebutt in the industry was that this product placement ad, which never actually depicted the logo of Mercedes and never mentioned Mercedes, cost approximately $7.9 million to produce. Here's an example of a product placement that was done in Boston. Some of you may remember a few years ago where they put these under bridges and on freeways in order to— it was a product placement for the Cartoon Network. This ended up costing the Turner Broadcasting System $2 million to settle the civil and criminal charges. Because it created a huge bomb scare in the city of Boston. Another example of a product placement. I'm going to skip again to the end of this. And again, if you didn't see this, in April of 2008, people were gathered in Los Angeles at the Pacific Design Center to attend what they thought was the world premiere of a David Nutter project called Scarlet. In fact, promoted as a hit new TV series, this is a viral ad for a new set, series of television sets that were promoted by Samsung. I mean, by LG Electronics. LG was releasing a new series of high-definition liquid crystal display TVs, and the whole thing was orchestrated. This was released in about 20 different languages on the same date on the internet as a trailer for the TV series, which in fact was a series of television sets. Sorry, let me go backwards. Native advertising, which is another subset of content marketing, just like product placement. You've seen them if you're online and you browse, you'll see sponsor content. You'll see small ads. And the Federal Trade Commission has specifically kind of released guidelines. In December of 2015, they released a Federal Trade Commission enforcement policy statement on deceptively formatted advertisements. And they also had a corresponding set of native advertising business guide which you can get online from the Federal Trade Commission's website. But essentially, um, they are requiring you to place things like sponsored or promotion or paid ad. So for example, at the bottom right, you'll see an article about should you accept your employer's pension buyout offer. And right next to it, unrelated to the article, is an ad for Fidelity, a Fidelity logo. Which if you click on it would lead you to further advertisements and materials from, you know, from Fidelity. And the idea is that native advertising, very much like product placements, are designed to be integrated within the context of the material that you're viewing online or on a mobile platform so that you're not really sure if it's advertising or not. And the Federal Trade Commission has taken an approach pretty tough view of the fact that that needs to be disclosed to consumers. When you're talking about disclosures, the FTC looks at four major factors: prominence, presentation, placement, and proximity. Prominence and presentation is pretty easily understood. Placement is the disclosure somewhere the consumer will easily see it. In the online world, if the claim is being made above the fold, meaning you don't have to scroll down to see what the advertisement is claiming, whereas the disclaimer or the disclosure is in small type at the bottom, that's not good enough. The disclosure needs to be not only near the claim it's intended to qualify, but it also needs to be placed somewhere that the consumer will actually look at it. And so if you look to the left, you'll see no, and then there are words that none of us can read. There are kind of ongoing words, words that are difficult to read because of the type font or the color. And the answer is that disclosures have to be readable by consumers. The other interesting point that you should note is a disclosure or a disclaimer cannot contradict the literal meaning of a claim. It can explain or qualify the criteria that the claim is based on, but you can't say something and then at the same time use a disclaimer to completely contradict it. So under the law, just to sum up, an act or practice is deceptive if it misleads a significant minority of consumers. And the notion here is that even if some readers are aware of the details, many readers aren't, and therefore disclosures and disclaimers are in fact quite important. Here are some examples of failure to disclose in the social media context. And let me go in reverse order. Lord Taylor paid influencers to post Instagram pictures of themselves wearing this new dress. And to use the hashtags #LordenTaylor or to mention, you know, #DesignLab. What they failed to do was disclose the fact that they had paid, they had given the endorsers, the influencers, the dresses for nothing and had paid them thousands of dollars in exchange for the endorsement. At the end of the day, Lord Taylor was challenged by the Federal Trade Commission. And while they were not fined any amount of money, they had to enter into a 20-year consent decree agreeing never to do such kind of ad or never to kind of— or to require disclosure in the future. Similarly, the bottom left, Warner Brothers hired a bunch of influencers to create buzz about a new video game. Unfortunately, the disclosures were hidden behind a button that said show more, and therefore the Federal Trade Commission said that the disclosures were not only were not conspicuous, but were not in a place where most consumers were reasonably going to see them. At the top left, you see a note about Microsoft. There, Microsoft's ad agency had paid video bloggers to produce and upload a game as part of a new launch. The bloggers weren't required to disclose they were being compensated. In this case, the Federal Trade Commission came after all of them, the agency, the bloggers, the advertising network, as well as Microsoft. At the end of the day, the reason why they were not fined any money was because— and let me kind of go back a step here. Because they had a robust policy and they had a training program that was intended to prevent exactly that from happening. The ad agency failed to require and to monitor the bloggers. And as a result, it was a mistake, but there were social media policies and enforcement and training methodologies in place. and therefore they were slapped on the wrist, but they were not fined anything as a result. Turning a little bit to intellectual property rights, it is extraordinarily important to make sure that you have the rights that you need to run your advertisement. These are complicated. They can be expensive. For example, music licensing is extraordinarily complicated. There are composition rights, publishing rights, synchronization rights, and all of those may require differing parties to give consent and permission. We'll see some examples of that coming up. In visuals, simply because an image is available publicly does not mean that it is free to use in commercial advertising. And, you know, be careful about copyright infringement and trademark infringement, and we'll talk a little bit more detail about rights of publicity as well and rights of privacy. So here's an example of trademark issues. Starbucks has 11 million Twitter followers. Their Facebook page has 37 million likes and over 35 million followers. But if you look at the bottom left, there are well over 1,000 unofficial Starbucks fan pages who are all using their trademarks. More concerning is that if you look to the right, there are hundreds of Facebook pages which take Starbucks to task, in some cases using very derogatory terminology. It is almost impossible. It's like playing whack-a-mole. If you kind of— it's almost impossible to go after them all. And so there are a number of strategies that companies have begun to employ in terms of brand management and reputation management to defeat these. But that being said, these are clearly trademark infringements. They are clearly denigrating their trademarks. And yet you need to come up with strategies that are different from sending hundreds of consumer cease and desist letters, which they are both likely to ignore and likely to pop up somewhere else. Similarly with copyright, Copyright protects the form, not the underlying idea. Depicted in this is an example of a tremendously famous picture that was taken of Franklin Delano Roosevelt's wheelchair back in the early 1940s before he passed away. A mockup of that photo was used by General Dynamics with a kind of a cryptic reference to Franklin Delano Roosevelt's presidency. This was held to be copyright infringement because it was so close to the original that it was likely to be confused with the original photo that was— the rights were held by Getty Images. And so, they ended up having to pay about $140,000, I think, was what the court ultimately awarded for for the copyright infringement case. In parody, you can use somebody else's material if the goal is to be funny and if it's in the business of satire and comedy. But parody is not always clear as a defense to copyright infringement if there is being used for a commercial purpose. So, take a look at these examples.

Okay.

Demi Moore was photographed by Annie Leibovitz on the COVID and appeared on the COVID of Vanity Fair magazine back in 1991, probably one of their most successful and famous issues. This is a release by Paramount Pictures of Leslie Nielsen for The Naked Gun 33��: The Final Insult. As you can imagine, Annie Leibovitz was sufficiently insulted that she and Vanity Fair sued Paramount Pictures. And the court, in its decision, went through the elements of fair use. They looked at how closely the ad copied the original and realized that although the ad drew heavily on the work, it was a photograph of a different naked 8-month-old. Pregnant woman whose— they had placed the head of Leslie Nielsen on it. They also looked at the potential market harm and realized that there was no adverse effect on the sale or the licensing of the Liebowitz photograph after the publication of the Paramount ad, and therefore the court concluded that this was a permitted parody. Okay, this Was an ad that aired. The broadcast networks refused to air this, but it was aired on the internet. And if you can't tell, this is not an advertisement for vehicles. This is Paris Hilton advertising for Carl's Jr.'s hamburgers. Hamburgers. Cole Porter's estate did license the music. They objected to the use, especially in the context of Paris Hilton and the way that she was sexually suggestive in the advertising. Unfortunately, the contract that they signed never gave them the right to approve the context or the use of the ad. They simply licensed it, and therefore, they were unable to prevent it from being aired. Here's an example of parody.

That's an example of permissible parody.

I love Paris in the springtime.

And again, I'm going to skip to most of the ad. You probably get the impression here. And the notion here is that this was a parody that appeared on the internet about a week after the original appeared, claiming that hiring the right person makes a difference, which is pretty obvious from the ad. Unfortunately, in the ad, which then went on to show a recruitment company, the— this ad was pulled because not only are they not in the business of parody, but this was for a commercial purpose. They were selling their recruiting services, and as a result, this was not a permissible fair use under the copyright law. By the way, they also never bothered to get a license from Cole Porter's estate to use the music. Going quickly to the issue of promotions, 3 words you need to remember: prize, consideration, and chance. If there's a prize and there's consideration and chance, you are conducting an illegal lottery. So raffles, casinos, All need to be licensed by the government for very specific purposes in order to be legal. And you can get licenses to conduct them for limited purposes. Church raffles, for example, can get licenses. Do not be fooled by the word consideration. That does not necessarily mean money. It can mean requiring a consumer to fill out a 20-minute survey. It may require the consumer to do certain things. Most of you have seen promotions in which they say if you'd like to enter without buying anything, send in a 3x5 card with your name and address. That is to create an alternate means of entry that will allow them to kind of get around the problem of having consideration in order for a chance to win a prize. That being said, bear in mind that if you have a skill-based contest, that is allowed to have consideration. Because there's not— the winners are not determined randomly, but rather by skill. So, if you eliminate chance, you have a contest. If you eliminate consideration, you have a sweepstakes. There are plenty of hybrid, you know, promotions. The question is, which is the predominant means of determining the winner? I'm not going to go through the whole cases, but most of you have seen the comeback of Deal or No Deal. The reason it was taken off the air was because they were sued because they required you to send in a premium text messaging if you wanted to play at home and randomly choose the winning case that would get you the $10,000. Because there was a charge, the case is Herbert versus Endemol. It was ultimately settled. There was a consent decree and the defendants also were required to repay all of the text messaging charges that consumers had incurred.

It was an eye-catching ad for Pepsi Cola, and it caught John Leonard's eye. Collect points from Pepsi labels and claim prizes like t-shirts and sunglasses, or for 7 million points, a Harrier jet.

Okay, um, I'm not going to kind of play the whole ad. It goes on for a while, but bear in mind that this young man, the young man originally in the picture here, sitting in the chair, is an MBA student who read the fine print and realized that you could actually pay for points to Pepsi because they avoided the consideration issue of having to buy Pepsi to get bottle caps, and figured out that all you needed to do was to spend $700,000 worth of money to go get enough points for the $7 million for the Harrier jet. He got 5 investors who gave him $700,000 in total, and then went to Pepsi and asked them for his Harrier jet. Needless to say, they went to court looking for a declaratory injunction saying no reasonable human being in their right mind would think that they're actually getting a Harrier jet. It went back and forth, and needless to say, While the suit ultimately probably had no merit, because a reasonable consumer knew that they weren't going to get a Harrier jet, which is kind of a marine, a huge kind of prize, which is incapable of being used by the average consumer, nevertheless, they spent literally hundreds of thousands of dollars in legal fees to kind of get this ultimately resolved. Needless to say, Pepsi changed the ad to now requiring 700 million points in order to get a prize. On social media, bear in mind that all of the rules and regulations that we've just talked about continue to apply, plus the fact that each of the social media platforms have their own specific rules or prohibitions. Instagram has a monetary limit on what you're allowed to kind of giveaway in prizes. Facebook and Twitter have specific rules that regulate promotions. You also need to avoid consumer confusion. And the same, again, the same rules apply. One of the things that's important to remember is that you can't delegate responsibility. If you kind of give a blogger or an endorser the ability to say something, and they say something that is inaccurate or misleading, you are still liable as the advertisers. And again, here are kind of some of the ingredients that if you have a social media policy can mitigate against that. Endorsements. And again, I know that I'm going quickly, but I want to cover as much of the material as we can. Endorsements are claims, and they are claims in which a consumer is likely to understand is expressing the opinion or belief of somebody besides the sponsoring advertisers. Under the current FTC guidelines, which were revised a few years ago, first time they were revised since 1980, it needs to be— you can't use results may vary or not typical anymore. You must show typical consumer experience. The endorser must be an actual user. And you can't have representations made by an endorser or somebody who's doing a testimonial that would be deceptive or that can't be substantiated if they were made by the advertiser themselves. And here is a cite to the actual document that was newly revised in 2009. I say newly because it hadn't been revised in probably 30 years prior to that. Celebrities have a right of publicity, but everyone has a right of privacy. Um, discuss quickly the Marilyn Monroe case. Marilyn Monroe died in 1962 at a time when you could make the claim that she was a resident of Indiana, New York, California. All three of them were made claims by their estate and also by CMG Worldwide, which owns rights to a number of public— of celebrities. And the court held that at the time of her death, there was no right of publicity that was a property right that was descendable, and therefore she couldn't by will pass those rights to anybody else. And therefore, her pictures, her photographs, are free to be used as a result of that on t-shirts and other things, because the copyright— well, the right of publicity is separate from the copyright issue. The right of publicity doesn't exist for her estate. Subsequently, California has passed the right of publicity law. Indiana has a law which protects the right of public figures for 100 years. New York, to this day, has no right of publicity. I'm sorry, has no right of publicity that's survivable. There is a right of publicity to somebody who is alive, but not to somebody who has passed away. Here's an example of a— Russell Kristoff was the actor who was featured in this. He was paid a few hundred dollars. For the rights to use his image in a North American campaign. He was walking in a store in Canada and saw his image on a Nescafé, a Taster's Choice label, and sued. And during discovery found that not only were they using his image in Canada, but in Mexico, in Spain, and a number of other countries. He sued. While the original court awarded $15.6 $1 million in damages. That was reduced on appeal, but still thousands of dollars spent. Definitions, celebrity, experts, just for your own kind of edification, keep these in your file so you know what they are. Vanna White, she was awarded $300,000 based on a Samsung print ad that showed a picture of a robot clearly imitating her persona on the Wheel of Fortune. In the 2017 Super Bowl, this was an ad that aired by Fox. So Muhammad Ali sued— his estate sued Fox for $30 million. Literally last July, they just settled the case for an undisclosed amount. But the lawsuit claimed that they used his persona, the clips of his fights, basically his image for promotional purposes for the Super Bowl. Again, don't make assumptions that people who are public figures are permitted to be used in advertising. Weatherproof took an image of Barack Obama, president, and kind of created this ad in Times Square with the clever double-meaning advertisement that said, "A leader in style," which could have multiple meanings. Obviously, the White House complained. They took the ad down. Similarly, I don't know what to do.

What would you do if you were me? America's got this beer. It's called Stroh's Light, and it's fire brewed. You know, it's not like any other beer. So I call the State Department and say, let's make a trade. Our cigars, beer, Stroh's Light. They say, bad deal. You're going to have to forget about it. "It's not the same as other lights. It's fire-brewed Stroh's light." "We're only 90 miles away.

We can't even get a decent beer." So in reality, that ad is perfectly illegal, and yet they knew that Castro was not going to come and subject himself to the jurisdiction of the U.S. courts in order to make a claim for his right of publicity, which questionable whether or not he had a right of publicity as a non-US citizen anyway. And so they continued to run the ad. Some of the other screw-ups that happened in advertising, top left, Uma Thurman. An ad appeared on page 20 of a Google search. All of the links in a Japanese— and the pages were all in Japanese. You couldn't buy any product or service. But she sued for the use of her public image and won for an undisclosed amount. Bottom left, Cybill Shepherd. She became a spokesperson for the Pork Council, the other white meat, as she referred to it. Unfortunately, in an interview subsequently, she told the interviewer that she was a vegetarian and didn't eat pork. Bottom right, you have Charlize Theron, who was a spokesmodel for Raymond Weil, the watchmaker. Unfortunately, a little while after she had the endorsement contract, she shows up at a press junket wearing a Dior watch, which is not really kind of appreciated by Raymond Weil. And similarly, Kate Moss, who was served with a— was sought after, I guess, for a warrant was issued for her arrest in the UK for possession of contract of of cocaine was terminated from her contract with Burberry under the morals clause. I'm not going to go into the issues of this photograph, but you ask yourself, Samsung gave Ellen DeGeneres a camera. Ellen DeGeneres gave Bradley Cooper the camera to take this photo. That photo was tweeted and retweeted and captured by the Associated Press. And the question that I would leave to you is, who actually owns the copyright and can give permission for that particular photograph? Mobile devices, really, really important. They are the first device in many, many centuries that's actually cannibalizing other devices and becoming a substitute for credit cards, for your telephone, for your mobile payments, for your IDs, for your boarding passes, for prescriptions, for just about for navigational devices. And it is, I mean, the striking thing to me is in a recent study, almost a third of Americans would give up sex rather than give up their cell phone. 45% would put off going on a vacation. And 3 in 10 people would stop seeing their friends in person. And again, examples of text messaging promotions that can be used. QR codes that can direct you right to an e-commerce site. Online mobile gaming, advertising the game and advertising in the game are two different issues that arise. Misleading trailers depicting features that are not in the game, you know, the quality of the graphics is better in the advertisement than it is in the actual game. And in the game itself, you have advertisements that are static, meaning they're hard-coded like the McDonald's ad on the left on a billboard. You have dynamic, which allows you to serve advertising as the players are kind of moving through the game. And then you have product placement, which is really rather than just a billboard or a display, is a full integration of the product into the game itself. As an example of this game that uses Jeep for all of its vehicles. Augmented reality advertising is extraordinarily, is becoming extraordinarily robust, and it allows advertisers to place virtual images on top of actual real images. So you can see here is a street scene from Paris from The Lonely Planet, and it will tell you where McDonald's is, where you can get a taxi, where Starbucks is, and show you how many meters it is from your location. I would be remiss in not mentioning something about privacy, and this was an ad, this was a cartoon in the 1993 New Yorker. I will show you a video by the American Civil Liberties Union that talks now about how targeted the ads can be.

Hi, uh, Mary.

Yes, I'd like to order.

This is Mr. Kelly.

Yes.

Thank you for calling again, sir. I see your national identification number is 6102049998-45-54610. Is that correct?

Yes.

Thank you, Mr. Kelly. I see you live at 736 Montrose Court, but you're calling from your cell phone. Are you at home? I'm just leaving work, but I'm— Oh, we can deliver to Bob's Auto Supply. Set the 175 like it happened.

Yes.

No.

I'm on my way home.

How do you know all this stuff? We just got wired into the system.

Oh, well, I'd like to order a couple of your double meat special pizzas.

Sure thing. There'll be a new $20 charge for this, sir.

What do you mean?

Sir, the system shows me that your medical records indicate that you have high blood pressure and extremely high cholesterol. Luckily, we have a new agreement with your national health plan.

And again, I'm not going to play the whole thing. You can go through this.

I want to get the sprout subs.

Good choice, sir. Gotta watch that waist if you're hitting the beach, Hank. 42 inches. Wow. And I'd say Cocoa and Sprouts is like required.

That's how much?

Just between you and me, there's a $3 off coupon in this Total Men's Fitness magazine. Your wife Betty subscribes to that, right? Anyhow, clip that and it's nice.

So bear in mind that everything that you do leaves traces on the internet, and as a result, there is a huge amount of data that is collected about you, and the question is whether or not that is publicly available data, or private, or personally identifiable information. As most of you know, Europe has taken the lead in regulating advertisements to consumers, which gives me a segue into a few words about international issues, and then I'm going to answer a couple of questions. You need to make sure that you consult local counsel because language is different, packaging is different, intellectual property laws and their enforcement are different, and rights of publicity and privacy are different. So this is obviously a painting in Milan of Leonardo da Vinci's Last Supper. This photograph was banned in Italy and France because it too closely resembled the da Vinci's masterpiece in an Armani ad. Here is an example of advertising using Michelangelo's David, which is in the Accademia in Florence. And without boring you with the details, in Italy, as in a number of other countries, you are not permitted to use national monuments in advertising. Similarly, visuals and imagery matter. This ad was banned in Sweden as being too suggestive. Sexually suggestive. This ad was banned in Saudi Arabia because you can't use internal organs, and the tongue is an internal organ. I don't think I need to really explain why this ad was banned in Italy or why this ad was banned in Canada. And so with that—

[SPEAKING GERMAN] Mayday, mayday!

Hello, can you hear us? Can you hear us?

Can you—

We are sinking, we are sinking! Hello?

This is the German Coast Guard.

We're thinking, we're thinking.

What are you thinking about? And just to kind of give you a little bit of a flavor, language matters. The Pepsi commercial, "Come alive with the Pepsi generation," when literally translated into Chinese means, "It brings your ancestors to life." Chevrolet's Nova. Nova in Spanish means it doesn't work or it doesn't go. In Africa, there are places where because the illiteracy rate is so high, people can't read. So they put pictures of the products that are inside the package on the outside labels. That presents a tremendous problem to a company like Gerber, which has a picture of the baby on the outside of their jars. So in sum, it's important to kind of pay attention to all of these things. Let me kind of answer a question that was raised about parody. If a comedian or a program is in the business of parody and plays music for the purpose of reinforcing the comedic skit, that would not necessarily be something that he would have to pay for. It would be considered a fair use under— as a defense to copyright infringement, because somebody like Jay Leno, somebody like Jimmy Fallon, these people are in the business of parody. And as a result, Saturday Night Live, for example, can get away with things that commercial advertisers can't. And so, there are some companies and some broadcast networks that may err on the side of caution and get a license for it anyway. But most would take the position that it is a permitted parody, especially if it is in the context of entertainment vehicle or programming that is in and of itself comedic in intention. Anyway, here's just a kind of a quick summary and a cheat sheet of some of the things that we, we have talked about today. I realize that I've gone through them quickly at a very high level, and again, thank you all for attending. I appreciate it, and you know, if anybody does have any questions, again, feel free to kind of contact me. I hope to be able to do some more advanced courses you know, over the, the coming months. But if not, feel free to kind of contact me. Sylvia, back to you, unless anybody else have any questions, please kind of, you know, kind of indicate them, write them out, and I will try to answer them. Okay, well, thank you very much for your time. Sylvia, back to you.

We have a question. Let me read it for you. Jimmy Fallon mentioned and played 18 seconds of my song.

Yeah, I did. I responded to that. The question about the parody and whether or not somebody like Jimmy Fallon or Jay Leno does have the right to use that. And again, my feeling is that a brief burst of a musical piece that is intended to kind of be part of a comedic program and a parody would probably be exempted from copyright infringement under the parody defense. If they were, however, using it as a theme song or for some other purpose, that wouldn't be okay. Anybody else have any questions? Okay, Sylvia, back to you.

Thank you, Joe. Thank you everyone for joining us today, and we hope you found this webinar fruitful. We will email you shortly with next steps on how to claim your CLE credits. Once again, The code for this CLE webinar is "Ramon Law CLE 2019." Please write it down as you will have to provide it later. "Ramon Law CLE 2019." Thank you, everyone, for your participation, and have a lovely day.