Tuesday, March 15, 2011

Association of National Advertisers, Advertising Law and Policy Conference

Welcome from ANABob Liodice, President and CEO, ANA
Liodice made an interesting point: by taking the lead in self-regulation, US advertisers/groups become models worldwide, and that has important consequences for how self-regulation can substitute for government regulation in countries that don’t have a First Amendment and aren’t particularly constrained in what they could make advertisers do if they decided to.

Also said that taxes were a huge issue. The industry pays its fair share, but doesn’t want to fund government programs. Advertising powers 15% of American jobs, and taxes would drag on that.

Keynote Address
Edith Ramirez, Commissioner, Federal Trade Commission

Consumers have too much trouble understanding and managing their privacy options. Privacy by design: products and services should have privacy protection built in at the design stage, not in a retrofit. Good data practices: limit collection and retention, provide security, ensure accuracy. Simplified consumer choice: consumers shouldn’t have to sift through privacy policies that seasoned lawyers find confusing. Eliminate unnecessary information and options—don’t clutter policies with commonly accepted practices; notice and choice for things that fall outside common practices. Comprehensive privacy policies are useful, so they should be improved rather than eliminated—should be clear and easily compared.

(I’m reminded of the current problem with Etsy’s flip of a switch that revealed customers’ purchases and favorites to public view. Since etsy sells everything from tea cozies to customized dildos, this is not necessarily something the customers wanted.)

Transparency for brokers who have no direct contact with consumers but aggregate vast amounts of data. Should consumers have access for accuracy/transparency? How should such companies provide notice?

Do not track: why now? Methods used to capture information are becoming increasingly more powerful—scan consumer behavior in realtime, including what consumers type or where they place their mouse; can use browser configuration to identify consumer; deep packet inspection is poised for a comeback. Consumers aren’t in a position to deal with this. Also deanonymizing is developing—we can’t safely assume we’ll remain anonymous as we surf the web. With few legal limits on how online profiles may be used, this is especially unsettling. Frenzied competition for more and more data about consumers. Consumers need a counterweight to mining of their moment to moment thoughts and actions online—give consumers a say about what information is being collected and used.

Main objection: undermine availability of free online content and services. Advertising does support a great deal of content and targeted ads demand a premium; many consumers value personalized ads. But the concern is overstated. Digital Ad Alliance: consumers feel more positively towards brands with greater transparency and control, such as an ability to opt out. Do not track should not be all or nothing—consumers should be able to make more precise choices. Some may be comfortable based on interest in yoga or hiking but not based on demographics. Advertisers can create conditions of continued high participation.

For the moment, the ball is in industry’s court to deploy a solution that will avoid the need for legislation.

Yesterday, the FTC announced a complaint and settlement with an online ad network: Chitika offered consumers the ability to opt out but didn’t tell them the opt-out lasted for only 10 days. Prohibits future privacy misrepresentations and requires a permanent opt-out option, as well as requiring destruction of any data collected when the prior bad opt-out was in use.

Health claims in advertising—a lot of action. Is there a shift in the way the FTC has treated substantiation? No, not a heightened standard or an abandonment of flexibility. First, wanted brighter lines/greater clarity for companies under order, and greater ease of enforcement. Broad standard presented enforcement challenges—viewed as a license to continue making the same false claims that brought them to the FTC’s attention in the first place; relied on outlier studies; took many resources to enforce. FDA approval is a much simpler proxy. FDA approval is a form of fencing-in relief. Also note that back in 1994 the FTC made clear that FDA standards would be its principal guide in evaluating food marketing claims. Pom Wonderful: we aren’t seeking to ratchet up substantiation guidelines for companies not under order. Complaint advances same theory of liability that existed for decades: Pom made claims without sufficient substantiation.

Same thing for the two independent clinical studies requirement: our experts agreed that this was the appropriate level of substantiation for weight loss claims. It’s a transparent, clear standard for what competent and reliable substantiation means. It’s case by case. In some cases, a single study may be appropriate if experts in the field would agree that’s sufficient. But when evidence is mixed or claims are broad, two independent studies may be the level that experts agree on.

Endorsement: one marketer said, “Reviews are the new advertising.” Consumers trust other consumers’ opinions. This means increased potential for deception. Today, consent order with Legacy Learning—used blog posts, endorsements, and other online methods to promote guitar courses. Legacy paid its affiliates to write positive reviews, but failed to ensure they disclosed ties; many did not and passed themselves off as independents/ordinary consumers. FTC went after Legacy for failing to monitor affiliates; held Legacy liable for their undisclosed endorsements. Disgorgement remedy imposed. Don’t do this!

Green claims: resulted in greenwashing, which makes consumers skeptical/numb.

In Q&A, Ramirez said that the FTC distinguishes between disease claims and other health claims for purposes of fencing-in orders, thus explaining the difference between the FDA approval requirements for some claims and two good studies requirements for other health claims.

Q: does the FTC intend to give guidelines for microblogs/Twitter?

A: the key is whether the consumer would understand that there’s been payment; if not, disclosure is required. There are more examples on the FTC’s website.

Q: EU just issued a regulation on cookies—is the FTC considering anything like that?

A: following that very closely and working with Commerce Department here.

Keynote Address
Robert E. Cooper, Jr., Attorney General, State of Tennessee

Pay particular attention to companies that can influence competitors/set industry standards. Tenn. has played a leading role in multistate investigations of DirecTV and Dish Networks. Ads for “5 months free” of DirecTV. But what does it mean to get “5 months free with NFL Sunday Ticket”? Is the Sunday Ticket free, or do you get the 5 months free if you pay $60/month for the ticket? Is any of it free if the customer has to commit to a 2 year contract? Disclosure was tiny and confusing, and not in proximity to discussion of pricing and terms in main part of ad. AGs took the position that DirecTV failed to disclose material terms on total cost and term of contract, meaning consumers couldn’t get accurate picture of package/total obligations.

BlueHippo: computer retailer targeted low-income and credit-challenged consumers. Currently in bankruptcy. (Try this: search “Blue Hippo” and see what targeted ads you get. It sheds some light on what the AG says next.) Relatively small player, but Tenn. was concerned that the business model had been adopted by others—frontloading payments for goods that won’t be delivered for a year and that are charged inflated prices. “We don’t check your credit! Approval guaranteed!” Failed to disclose many things, including onerous default terms. $33 million judgment and permanent judgment prohibiting collection.

Lessons learned—what state AGs are looking for: material limitations should be clearly and conspicuously disclosed to consumers. When you advertise price, material terms must be disclosed in direct proximity. Businesses should be clear with consumers when entering into a contract. AGs often receive complaints that consumers weren’t aware they’d entered into a longterm contract. Clear language will help.

The AGs are interested in the same things the FTC is—multistate settlement with Danone based on the same Activia etc. claims. Also mentioned green claims as of particular interest.

AGs also took action against caffeinated/energy drink alcoholic beverages attractive to younger consumers.

ConsumerDepot: when consumers gave it bad reviews online, it would automatically give consumers retaliatory bad feedback, hurting the customer’s credibility among other users. AG argued that automatic retaliatory feedback was an unfair practice under state law and prevailed.

AGs also monitor class action settlements, many of which they receive automatic notice of under CAFA. Will oppose approval of bad settlements—coupon settlements that don’t provide value to consumers, as with claims that Honda exaggerated the cleanness of its cars. Not all coupon settlements are bad, but those that do nothing more than drive more business to the defendant are suspect. Also concerned where the claims seem strong but the relief is weak.

Sorrel v. IMS Health Inc.—whether a state can require market research firms/data miners to get permission of doctors before selling their prescribing histories to marketers. Tenn., and 34 other states, joined an amicus brief urging the SCt to reverse the invalidation of such a law. Prescription records are private and highly regulated; interest in preventing unauthorized use for marketing—data miners/pharmacies have no First Amendment right to buy/sell histories, but even if that is speech, it’s appropriately regulated as commercial speech. Invalidation puts into question many state laws protecting sensitive data from unauthorized disclosure for commercial purposes.

Q: comment on interaction between FTC, AGs, and class actions?

A: we like to work with the FTC when there’s an opportunity to share information/coordinate relief.

The Do’s and Don’ts in Managing Talent Agreements
Paul Muratore, President/CEO, Talent Partners (note: attributions may be wrong; there was a lot of back and forth and this is also outside my core areas, though I found it totally fascinating)

Covering mostly celebrities/over scale talent rather than noncelebrity talent. More a part of the business than ever before. 500% increase in Oscars in celebrities in commercials; 50% increase in Grammys. Celebrities can now show up anywhere in new media, increasing complexity.

Tips: be comprehensive with your needs. War stories from experienced clients with significant infrastructure and advertisers who’ve worked with celebrities in the past. Celebrity involved in a set of campaigns, well-clad in expensive designer clothes, which she decided were hers and walked off the set wearing them. Designer disagreed and was quite upset. Had to negotiate an addendum to sell the clothes at 50% discount. (Heidelberger interjected that he faced an inverse situation with a celebrity who insisted on wearing his own clothes, which were branded with someone else’s brand.)

Also: insurance—may not cover a print campaign, even though celebrities have issues and sometimes don’t show up.

Talent agreements are not always signed by the talent; important to be sure the talent is the one signing.

Spillover of knowing what you got yourself into. A bunch of scale performers hanging around while dealing with unhappy talent in high heat in Times Square—they invented “heat pay,” not part of the contract, and also delivered bottles of water.

Contract checklist—territory, number of days, etc. (Heidelberger pointed out that if you figure out later that you want something, it will be more expensive or even impossible to get it later.)

Have a backup plan: short list of other celebrities, though you can only negotiate with one at a time. (H: this is critical if you care about money. Because everyone is moving so fast, if there’s no backup plan, the talent has the advertiser over a barrel when the shoot is tomorrow. Your leverage is at the beginning. Companies pay too much because they have no choice at a late date.)

Brian Heidelberger, partner, Winston & Strawn LLP
Negotiating the best agreement: lawyer’s job to decide between letter of intent, deal memo, or formal agreement. You can do all three, but if you start that way, everyone will be exhausted by the time you get to formal agreement and that may collapse/take forever. Deal memo: short bullet points with material terms. People get tired of going to formal agreement; he likes to do the formal agreement first. If you can’t, then be clear on what goes in the deal memo: time, territory, exclusivity, confidentiality, disclosure of what celebrities have already done; do we say this is binding (subject to a more formal agreement) or that it isn’t binding until there’s a formal agreement? His experience: make it binding, because of the sunk costs. That’s why he doesn’t like letters of intent.

Social media: when you engage celebrities, there’s almost always a provision about Twitter/Facebook. Even if you don’t say, it’s likely they will act themselves. FTC Guides: everyone knows about disclosure. But the guidelines also require training. Attach your social media policy to the agreement and make the talent agree to it. Also you need to monitor: just because you have something in the contract doesn’t mean you have to monitor their Twitter feed for false/deceptive/unsubstantiated claims—you have to be able to cause them to take down problematic claims. If you’re dealing with someone on the edge, ask for their password. Two recent social media disasters: Gilbert Godfrey (voice of AFLAC duck) has been saying a lot of negative things about the Japanese situation; AFLAC dropped him, but it’s too late. Maybe they can terminate him for a morals clause violation, but were they monitoring? Did they have the ability to take down the tweets? Chrysler also had a problem with swearing in their official feed. This was a contract employee.

Muratore: this is consistent with what Commissioner Ramirez said about reviews being the new advertising.

H: exclusivity. Sometimes gets short shrift. Talent will want just exclusivity on the product, but that can be problematic. Nokia could get mobile phone exclusivity, but what if Apple engages that talent for their computers? Maybe should be “manufacturers of mobile phones,” or name specific companies you really hate; keep the list as short as you can because all of this costs. Sometimes advertisers get a little crazy on exclusivity. Individual celebrity sponsorships are actually few and far between, so you have to balance cost and risk.

M: Advertiser’s view: if you have a really good celebrity doing really good work, chances are no one else will want to hire them in the category because of the existing association—this means you can ask for exclusivity but be willing to give ground in negotiating.

Multiservice agreements for entertainers; nonentertainers/models have separate agreements—pro athletes. Advertising a product within the sport and without are treated differently. These are guidelines available on the ANA website, and there is arbitration available. Check those agreements and understand which aspects you’re working with.

H: If your agency is a signatory to SAG, SAG can see your contract even if you’re not a signatory. They take the position that a large portion of the agreement relates to TV, even if it’s really small. We had a case with Tiger Woods as an endorser, mostly print/airport dioramas. But they did create a TV commercial; SAG sued, saying that even if it was only 10% of budget, that wasn’t enough allocation (which has implications for payments owed to pension funds etc.). Have a separate contract for TV in a smaller deal, with a reasonable amount for the actual TV ad, and the other contract isn’t auditable by SAG. SAG takes the position that even the right to produce a TV ad should result in allocating money to SAG even if the right is never excercised.

M: new media uses: now there’s free bargaining with a floor. New way to pay talent and the rates have changed. You can negotiate exclusivity in the new media but there’s no definition, so we have to figure it out as we go.

Talent complaining about old ads on the internet: if you post it yourself, you will be liable, so don’t do that outside the paid-for term. But sometimes consumers post the ads to YouTube. Talent wants payments because the ads are running. Ongoing dispute. Advertisers don’t believe they’re liable for that, but not worth a fight with talent/SAG. While the takedown notice might not be legally required, if you send a takedown notice, you can remove your liability for that even if you can’t get the content removed. Ads go up in farflung countries, and they might ignore the notice, but you can stop liability if you send the notice. Key thing to know: you have to be the copyright owner; don’t send the notice unless you’re the copyright owner. SAG agreed that takedowns will not be considered precedential.

In your contract, you should write that you give a couple of hours of brand-specific media training. Overlooked a lot, but this person will be out and about, becoming part of the message.

Reasons not to ignore the guilds: if you use professional actors, you will bump into the union. If you’re going to direct people, even if you just get them out of a bar, there’s an opportunity for the union to ask questions.

H: talent will often ask for approval over everything. Need to push back at certain levels. Reasonable for them to have approval over beginning concepts. Creative copy—these days they probably will need approval over copy, but might be able to limit it to approval over how they’re featured. Exclude approval for rough cuts/final finished version. If Tom Cruise decides he doesn’t like the way he looks in the finished ad, big problem. Early stage approval is fine. Also provide that you don’t have to seek approval for changes made for legal/network approval/minor changes that don’t change substance.

M: need to say that there’s a time limit for approval and that the advertiser has final approval.

H: b roll approval: probably want to give them approval if you’re filming them in the makeup chair and you want to post that to your website.

Another problem: failure to include options. What if the TV commercial is successful? Then we’ll want a radio spot, tweeting, etc.—it will cost a lot more than what you could have negotiated before. Include the right to renew, at the same price, or maybe a 10% bump if they won’t take the same price. Old Spice guy—his contract is undoubtedly more expensive now than when they initially negotiated it.

M: pro athlete—negotiate options if they make it to the Superbowl, etc.

Don’t pay the talent upfront. How you track internet uses is of use.

H: talent will say that upfront is right because all their work is upfront. You say: but your work continues; that’s the morals clause. They may say: 80% of the total contract price should be considered earned on the date the ad was created, even if it’s paid over time; he would resist because the morals clause should trump that.

M: All things video: don’t assume it’s not subject to SAG. Many consumers follow the celebrity as a brand in themselves. Look at opportunities for soft news—how they made the commercial, how they got involved in an event (the celebrity might donate one day of a fee to charity)—look at how that will show up online and make sure you’re covered. You may say “that’s not an ad,” but if the agency creating it is a signatory then you’re in an argument. Just because it’s not 30 seconds on TV doesn’t mean it’s not an ad. SAG will take the position that even product placement, without a brand tag at the end, makes it an ad.

H: GM/Glee successfully blurred the lines between the show and the ads in the Superbowl presentation—multiple agreements were in play.

Don’t give up too easily on the morals clause. Kobe Bryant, Michael Jackson, Charlie Sheen. Don’t agree to convicted or even accused of a felony—anything that might damage your brand. Tell them this is a dealbreaker, but you’ve got to be consistent and serious. Nine times out of ten you’ll prevail if you hold your ground. Explain: costs us so much money to pull this that it’s not worth it if we can’t protect ourselves. If you lose on that point, you can pull your ads and still make additional payment to the talent; not the end of the world, but still worth fighting.

M: don’t confuse the celebrity with the character. May not want to be typecast; celebrities come with a bunch of their own issues, and may not want to do the things the character does.

H: note that the celebrity won’t have rights to the character, and the studios won’t do it for free. Also, networks won’t want to run ads using competitive characters promoting a show on a different network. Another problem he sees all the time: we make a firm offer, but the talent’s attorneys say: “as my client has yet to review the document I must reserve the right to make additional changes.” Under California law, an email that says we’ve agreed on material terms is binding. If the client/agency changes their mind, saying that we haven’t signed anything yet is insufficient. You have to say it’s a firm offer to be taken seriously, but you need to do what the talent’s attorneys do and say: “as is standard with my client, we cannot be fully bound until we formally execute an agreement.”

Failure to negotiate separately with identifiable singers: a gentleman out there is very good at finding singers you haven’t negotiated with. You get the rights from the publisher, and from the record label, but SAG requires you negotiate separately with identifiable singers. Many times that’s just contacting the singer who will take scale because they’re getting a cut from the record label. But if you don’t take care of this they’ll come back later and demand more. Pepsi commercial using the Flamingos—thought they didn’t need union jurisdiction because the song was so old; whoops. Because singers take minimum as a matter of rote, sometimes people just send the check, and one singer argued that merely cashing the check was not “negotiation.” In another case, the ad never even aired but they argued that SAG requires negotiation when the ad is produced, not when it’s aired.

Q: SAG/AFTRA—celebrities have obligations not to work nonunion; not all take them seriously but their agents generally do. Don’t assume that anything the celebrity does will be nonunion. Issue of allocation for union contributions—we have problems with intra-union allocation. A client who did all radio paid all to AFTRA; now SAG wants 90% of that money. (The contract says it should be 90/10, but the client thought that didn’t make sense for all radio.)

M: Try to stay out of that fight. Contact the joint committee for SAG/AFTRA—guidelines exist because people were getting harassed by the funds, and that’s worrisome because as ERISA plans treble damages might be at issue.

Q: third-party rights problems: do you need permission for all the cars/brands in a video?

A: that’s a trademark issue; their position is that incidental uses in a web video may be worth the risk. Debrand as much as possible, especially with competitors and other celebrities.

There are also certain landmarks you can’t use—narrow the field of vision/blur the background. The further you come out from under the radar, with the Eiffel Tower glowing behind you, the more risk you take on.

Q: creative competitions—those organizations take no liability for SAG; how should this be handled?

A: Agencies have the right to show ads for promotional purposes without SAG liability. Advertisers don’t have the same freedoms. We haven’t seen claims like that.

Q: if you don’t specify broadcast/nonbroadcast allocation, is there a risk SAG will demand 100% allocation to broadcast?

A: if you don’t allocate, they’ll take a position you don’t like about allocation. If it’s all TV and some media training, they’ll demand 100%. 4 days of TV and 2 days of personal appearances: will demand 80% because they don’t think that personal appearances count much. Specify in your agreement how much is allocated to union covered services, or do separate contracts if time permits/there’s big money, because they will dispute your allocation.

Q: at what point will we see celebrities using the new FTC guidelines? Questioner thinks they haven’t permeated.

A: celebrities say, yeah, yeah, yeah, we understand. That’s the lawyer talking. Is the celebrity going to think about that when they tweet? Well, Kim Kardashian is not going to be the subject of an FTC action—the FTC will go after the advertiser who fails to monitor. If you don’t trust them and you don’t believe your monitoring can handle them, start by making sure they put sponsor logos on their webpages. That’s not a perfect solution because twitter followers won’t see that; you need to monitor to make sure it’s in the tweet.

“Hidden Liabilities in Media Offerings of Integration and Adjacencies” or “Whatever We Call the Right of Publicity in Brand Integration”

Rick Kurnit, Partner, Frankfurt Kurnit Klein & Selz PC

Focus on commercial appropriation/right of publicity—the right has now expanded to almost anything, including a gesture. Case involving the Sugar Hill Gang led to $2.8 million in punitive damages, even though the Sugar Hill Gang had agreed to promote the product at a concert. Endorsement was worth $180,000, but the punitive damages dwarfed that. Another case: model put on Taster’s Choice can; $15.6 million because his expert claimed a percentage of worldwide sales. Reversed on appeal (note costs of appeal/bond): damages shouldn’t be the value of the label but the value of his face instead of someone else’s face. Lookalikes are also dangerous. (Woody Allen case: Allen claimed a copyright on the hapless Allen character; the judge denied that claim and even found that the lookalike wasn’t enough like Allen, but came up with a Lanham Act claim for false endorsement. Likelihood of endorsement confusion also contribued over $250,000 to the award in the Vanna White case.) Punitive damages of $2 million in Tom Waits case.

It doesn’t take a whole lot to make a Lanham Act claim, as we learned when the M&M Mars company got sued for making a Naked Cowboy M&M—Judge Chin dismissed the right of publicity claim, since New York knows the difference between a piece of candy and a person, but couldn’t dismiss the Lanham Act claim. In today’s world, what does the consumer think about the relationship between products and people? Do people think that M&M needs the Naked Cowboy’s permission to put a diaper on an M&M? Do people think that a company needs Lindsay Lohan’s permission to name a “milkaholic” baby Linsday?

Convergence: opportunities to put the brand’s message into content outside traditional ad formats. How do these old concepts of advertising and the right of publicity interact with the First Amendment? Nike v. Kasky said that everything is advertising. Infomercial: entire program may be an ad; what about when you sponsor a documentary, as in Facenda, where documentary about creation of Madden 06 was held to be an ad, creating a right of publicity claim for Facenda’s estate. Media look at these things as documentaries protected by the First Amendment.

Came to a head with adjacency case, Stewart v. Rolling Stone.  Under Stewart, the court approved a “wall” of separation, but what happens with brand integration into the program? Perfectmatch.com saw a Lifetime show about a dating service, and they paid to be featured. The head of the dating service made an outrageous statement about how many matches perfectmatch.com had. Competitor brought a NAD claim, but the NAD held that it wasn’t advertising because it wasn’t slanderous.

Merely commercializing content—selling comic book to hockey fans—can lead to a verdict for a hockey player whose name was used in a comic book, $15 million based on expert testimony that sports figures receive this much for their endorsements.

We have long dealt with the notion that the integration of content with marketing causes a possible right of publicity claim—even being featured in a calendar given as a gift to those who donated to an organization led to a successful claim.

Can you put user-generated content in a press release that truthfully reports on public events? People in PR have long been protected by submitting material to the media and using the First Amendment as a shield, but today press releases go up on the company’s website. Thus, Chuck Yeager sued Cingular successfully for using his name in a press release. People doing PR have rarely had training in the Lanham Act/right of publicity.

Rebecca Sanhueza, Vice President and Deputy General Counsel, Time Inc.

We have reader services like “celebrity looks for less”—no quid pro quo for advertisers or product placement; it’s editorial. We think advertisers like to advertise on our sites because we have credibility.

She would be hesitant about executions that blur the line between selling and editorial.

What about media tie-ins? Time clears photos that appear in its magazines even when celebrities attend Time events.

Kurnit: people in charge of websites think that they can do these things without clearance. Why can’t we do this? Well, are the other sites doing this good litigation targets? That which a judgment proof college student puts up on the internet is fair use. A company with a bank account and an address is an infringer. Summer intern: created a MySpace page for the company using its marketing materials, none of which were cleared for the internet.

Sanhueza: suppose Jordache reuses a picture of Hayden Panettiere from People wearing Jordache? Time would never give permission for reuse of its covers without rep/warranty and indemnity from advertiser for clearing the rights of publicity.

Kurnit: check the “in the news” feature on your website. Have you cleared the copyright in the paparazzi photograph? What about the celebrity appearance on the cover of the publication that features your product?

Facebook is not going to indemnify you for right of publicity claims by children (current class action!) who are featured in your ads as a result of Facebook’s promotion features.

Sanhueza: for social media use, we are pretty clear that we aren’t responsible for anything other than our own materials on the social media site/page. We don’t clear every context/potential use.

Kurnit: new service—allows tagging of photographs with information about products celebrities are wearing—their position is that it’s editorial, but the celebrities are likely to disagree.

Sanhueza: the key is independence. Are you writing about something because you’re interested in covering it or your readers are, or are you influenced by a media buy? (Can you really separate these?)

Kurnit: one case where ad agency was merely informed what the picture of the week would be—Kobe Bryant dunking—and agency created an adjacent ad for a camera saying “capture every bead of sweat.” Unfortunate for the agency that it submitted the two-page spread for an award.

Q: suppose a celebrity tweets “I love my new iPhone!”—can Apple reuse this?

Kurnit: truth is no defense to a right of publicity claim. (RT: Which, not for nothing, is why the current right of publicity is unconstitutional.) Don’t be lured into endorsement from an individual. Also keep in mind that the owner of the copyright in Cheers lost a case for licensing it for bars—there’s a presumption in California that this sort of thing goes to a jury.

Facebook again: NY law requires both written consent of child and written consent of parent; there’s a case finding a problem where there’s written consent from a 17-year-old but not the parent, when the minor was a professional model. This creates risks for use of profile pictures. With kids, there’s a presumption of punitive damages for wrongful use of name/picture.

Woody Allen’s last case, $5 million for using a picture of him on a billboard. Numbers keep going up and up.

Q: Suppose you have a Facebook page, in part to avoid others creating one for you. You post pictures from your public events. Do you need to clear rights under Nike v. Kasky?

Kurnit: never gives an opinion about California law, but you want to be very careful that you’re not doing that in conjunction with selling a product. It’s different where you are selling a product. We spend a lot of time convincing managers of the commerce part of the website that putting the “buy now” button on someone’s nose is going to far. Separate where people shop from the information. Ideally have them go back to a homepage/across the top bar to separate commerce from marketing; at that point he’s prepared to defend your First Amendment right as an entity to publish. If Nike v. Kasky were truly implemented there’d be no media in America.

Q: what about friends/fansites created by employees?

Kurnit: in the US, you have to assume that what your employees do is the responsibility of the company. We all have social media policies distributed to employees. If you don’t have one, get one.

And then, sadly, I had to leave to teach. So far, though, I’m enjoying the conference!

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