Monday, July 16, 2012

Goldman & Tushnet on Advertising and Marketing Law

With Eric Goldman, I’m thrilled to announce the release of our casebook:  Advertising & Marketing Law: Cases and Materials.  We are publishing the book as a DRM-free PDF download at Scribd for only $10.  As Eric says, it’s “870 pages and nearly 400,000 words of advertising and marketing law nirvana—a massive 40MB file chock full of photos (especially depicting the ad copy at issue), edited cases, explanatory narrative, tables/charts, diagrams and more.  You’ll laugh, you’ll cry, and you may even want to do a jig.”  The detailed table of contents is available at Scribd.  You can buy it for $10, which we think is a bargain.
If you want to get a sense of the entire book, we’ve posted a free sample chapter (Chapter 12 about publicity rights and endorsements) to SSRN.  Full chapter list:
Chapter 0: Preface
Chapter 1: Overview
Chapter 2: What is an Advertisement?
Chapter 3: False Advertising Overview
Chapter 4: Deception
Chapter 5: Omissions and Disclosures
Chapter 6: Special Topics in Competitor Lawsuits
Chapter 7: Other Business Torts
Chapter 8: False Advertising Practice and Remedies
Chapter 9: Copyrights
Chapter 10: Brand Protection and Usage
Chapter 11: Competitive Restrictions
Chapter 12: Featuring People in Ads
Chapter 13: Privacy
Chapter 14: Promotions
Chapter 15: The Advertising Industry Ecosystem—Intermediaries and Their Regulation
Chapter 16: Case Studies
Eric has a number of things to say about the book and about teaching advertising and marketing law.  Short version: every law school should have this course; many lawyers—especially those representing small clients—need to know this material; it’s also a good “horizontal” course showing students how various areas of law overlap and fit together and helping them think about the big picture.  For professors (including adjuncts), it’s also just fun, and we will provide plenty of supporting materials, including notes/slides/rudimentary teaching manual/the IP Teaching Resources Database, chock full of examples for use in teaching.  Anyone interested in teaching the course should contact Eric or me.


  1. OK. Just bought it. Will there be a pop quiz?

  2. Thank you! No pop quizzes, though I'm always up for debates over the cases I blog about!

  3. Anonymous9:04 PM

    Bought the treatise and have been reading. Thanks! Question: you imply in the treatise that it's not clear that a celebrity endorser's connection to the advertiser would need to be disclosed if all the celebrity is doing is engaging in puffery. But doesn't that misunderstand the issue? Puffery is not actionable when it is done by the advertiser itself if the claims at issue are so over-the-top that no reasonable consumer would rely on them. However, if a celebrity endorser engages in puffery and fails to disclose the connection, while consumers will likely not take the specific puffy claims at face value, they will (perhaps) take at face value the more basic point that the celebrity sincerely likes the product and has not been bought off. Isn't that why disclosure is necessary?

  4. Anonymous: absolutely--but that highlights the issue we wished to bring up, which is that this reasoning throws into doubt the underlying doctrine that puffery isn't actionable because reasonable consumers wouldn't rely on it. In the endorsement context, we understand that puffery works, which is why advertisers engage in it themselves. If puffery really didn't matter, then an endorsement that didn't give a good reason would be unable to sway consumers even if it appeared independent. But disclosure makes sense because consumers do care about whether the endorser has been paid no matter what the endorser says.

  5. Anonymous9:33 PM

    Well, I agree that puffery does sometimes work. But put that aside for a second. If Justin Bieber goes on a talk show and says, "You should try this product; it's the greatest in the world," consumers will likely ignore the specific claim at issue, just as if the advertiser had said it, because it's clearly puffery. But even though the specific claim is puffery and likely to be regarded with great skepticism, Bieber's comments do provide the consumer with new information, namely, that he recommends the product (which is a given if the advertiser itself is doing the talking). Thus, the mere fact of Bieber's endorsement, not the particular claim at issue, is what is influencing consumers. So is it really fair to say that "puffery works" in the endorsement context?

  6. But that argument relies on assumptions about what counts as "information" that are themselves inconsistent with the idea that puffery doesn't provide a reason to act. "Bieber likes this" is only information that could make a difference in a purchasing decision if people rely on things that courts, in puffery contexts, say they don't. Or to put it another way, in your account consumers aren't "ignoring" the claim, they're translating it from "greatest" to "Bieber likes" (which is, not for nothing, not falsified by the fact that he's getting paid; he might well endorse only products he actually likes). But the ordinary puffery inquiry cuts off any analysis of what they might be translating it to. The endorsement guidelines, by contrast, correctly recognize the persuasive power of endorsements even though the endorsement itself, without any specific factual claims, is vague and susceptible to a variety of interpretations.