Archive for the ‘Advertising’ Category

IP Law and the Presidential Sneakers…

posted by Jacqueline Lipton

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “obamashoes.tv” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “Obamashoes.tv is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?

  May 19, 2009 at 9:16 am   Posted in: Advertising, Consumer Protection Law, Culture, Cyberlaw, First Amendment, Intellectual Property, Politics, Technology, Uncategorized   Print This Post   No Comments

The Blogosphere Running on Fumes?

posted by Dave Hoffman

Gandelman’s roundup of reactions to Pajamas Media’s shuttering of its blogging network is worth checking out. Of the various reactions I’ve seen, from anger at incompetence, to anger that PJM wasn’t right-wing enough, I think the best is by Dennis the Peasant, who republished an old post about how to make money online:

The mistake I had made was assuming that some good household data was enough information to get an advertiser to act. It isn’t. What will convince advertisers to advertise on blogs is convincing data that the decision makers for their products are at those blogs. Yeah, high household income is something advertisers like, but if it isn’t coupled with access to the decision maker they have no reason to spend with you. Their job is to convince the decision maker to buy their product. If you don’t deliver that person, they can’t do their job. If they can’t do their job, they are going move on from you to someone who will enable them do their job.

So think about this: What kind of advertising do you see on the Sunday morning talk shows? What kind of advertising do you see in the politically-oriented magazines (as opposed to news magazines)? See much in the way of advertising for computers, cell phones, video games or cameras?

This strikes me as intuitively quite right, although I’ve previously written that advertising on some blogs might create a beneficial exposure effect. (Perhaps this argument is too self-serving to be believed.)

Does the failure of political blogging to make money have any implications for the legal blogosphere? I doubt it, because the legal blogosphere, with one exception I can think of, is basically a nonprofit enterprise.

The Caron Blog Empire has a deal with Thompson-West that seems to fit with the theory, as law professors are the primary decision makers for casebooks. (Which, of course, explains why such books are routinely overpriced). But I doubt that the law professor blog network is producing a rush of revenue. Everyone else is subsidized, either directly by their underlying practices or indirectly by their law schools. (Even Volokh appears not to be currently running ads).

The only exception is Above the Law. Today they are running credit-check & job search ads. Appropriate.

(Image Source. A Ford Pinto. Go buy it, if you are feeling brave.)

  February 2, 2009 at 1:19 pm   Posted in: Advertising   Print This Post   One Comment

Cultural Difference

posted by Deven Desai

This is a display in a duty free shop in Guadalajara.

My guess is that the disclaimers are required by law and the multi-pack box cannot be otherwise offered. Still the size of the display and the choice of putting the boxes next to the sign with the sale information rather than just a sign is interesting. Maybe they had to do so or maybe folks are inured to the warnings. Either way it startled me and made me think this display is free market meets information.

  August 21, 2008 at 8:03 pm   Posted in: Advertising   Print This Post   One Comment

How Far Should Safety Ads Go?

posted by Daniel Solove

I was struck (pardon the pun) by these new safety ads by the Metropolitan Washington Council of Governments’s (MWCOG) Street Smart program. In addition to the vivid ads (above), there’s also a radio spot that begins with the sound of a screaming pedestrian getting hit by a car. You can download the ads at the Street Smart website.

According to the Washington Post:

[O]n average more than 80 people die and 2,000 people are injured a year in pedestrian accidents in the Washington region. . . .

“The idea of the campaign is to get to the core of the issue. It’s a life-and-death situation,” said Jim McAndrew, vice president of Design House, the firm responsible for producing the ads.

D.C. Assistant Police Chief Patrick A. Burke said risks have increased in recent years because pedestrians and drivers are often distracted by cellphones and text-messaging. “We’ve got to get people’s attention back on the road and the street,” he said.

The ads are put up on bus and transit shelters. The poster at the top of this post is a version of the ad that goes on the side of buses. The purpose of the ad is to shock people into being more careful. Effective? Or too vivid?

Hat tip: DCist blog

  March 7, 2008 at 11:32 am   Posted in: Advertising, Culture   Print This Post   4 Comments

And Now a Word From Our Sponsors…: The Ethics of Sponsored Courses and Maybe Chairs?

posted by Deven Desai

Inside Higher Ed details that Hunter College offered a course that was sponsored by an industry group called International Anticounterfeiting Coalition (known as the IACC). The group represents major fashion industry companies. The class well that is where the fun begins. Apparently the

students would create a campaign against counterfeiting in which they would create a fake Web site to tell the story of a fictional student experiencing trauma because of fake consumer goods. One goal of the effort was to mislead students not in the course into thinking that they were reading about someone real.

The article raises some good questions: Why have students perform free labor for the fashion industry (and really pay for the privilege?)? What about the underlying lies? These issues remind me of the LonleyGirl issues (there a fake videoblog lured people into what appeared to be a true personal site but was a front for a group launching a film company. Eric Goldman has a set of quick links that highlight the problems of user-generated content, ads, and quality. In general the school’s willingness to offer a class that propagates a shall we say less than authentic Web site is an example of the marketer’s will. Not that this point should exonerate the school. (Note that apparently Iowa turned down money when it was unsure about naming a school after the donor).

Still according to the article “other colleges do work with IACC” including Ohio State University but at least Ohio State does not operate in the same way as Hunter allegedly did. Ohio State seems to set up the projects as out of class activities. Hunter’s class according to some was directed by the IACC such “that the professor was required to teach only one side of the issue, had to accept industry officials watching him teach, and had little clout to fight back since he didn’t (and still doesn’t) have tenure.”

So it goes. Schools need cash and corporations have it. Would a school bow to its donors? Are schools market immune? Of course they aspire to be but the reality is different. Further as public schools lose the endowment race, they will be more and more beholden to outside funding. I am not, repeat not, saying that schools should operate so that they bow to corporate requests. I am saying that the issue is alive and well and not so easy to combat. If the allegations are true, Hunter seems to be the easy case, don’t do it. The harder ones will be the subtle questions of hiring, curriculum, and building funds which can easily look like a decision based on lack of funds when perhaps other interests scuttled the project.

Hat Tip: Slashdot

Image: Manuel Dohmen WikiCommons

License: GNU Free Documentation license, Version 1.2

  March 3, 2008 at 8:12 pm   Posted in: Advertising, Education, Teaching   Print This Post   One Comment

Persuading Surfers’ Eyeballs

posted by Dave Hoffman

It’s a grim season for Americans who own homes (or, shopping malls). Luckily, casual blogging for mediocre stakes is quickly filling the gap as the ultimate backstop for the American economy. Well, sort of:

[W]ith the right mix of compelling content and exposure, a blog can draw a dedicated following, making advertising a low-hanging fruit.

“This is really a continuation of how the Web in general has enabled smaller businesses and individuals to compete if not at a level playing field, at least a more equitable level,” said David Hallerman, a senior analyst with the research group eMarketer.

AdSense is an automated program that places targeted advertising on sites big and small. Other programs such as PayPerPost are just as user friendly; bloggers sign up and advertisers cherry pick where they want to place ads based on categories and the number of impressions a site captures.

Getting paid might even help validate what may otherwise seem like a silly or obscure obsession.

For Samuel Chi, BCSGuru.com started as a way to demystify the convoluted universe of college football rankings.

Chi, a former sports journalist with training in statistics, posts his calculations every Saturday night during the season before official results are released Sunday. From Saturday night to Monday, about 4,000 sports fans log on daily to check out the “guru’s” forecast.

This season, Chi made about $8,000 from the blog; ticket brokers contacted him directly after word about his site got out. AdSense brought in another couple hundred dollars for Chi, the owner of a bed-and-breakfast in Amelia Island, Fla.

A few things. First, it is very hard to imagine that $8,000 is going to validate what is, let’s be frank, a silly and obscure obsession with college football rankings. But putting that aside, it strikes me as odd that the article paid so little attention to the potentially pernicious consequences of running targeted ads on a niche website. With evidence growing that online advertising works, even when it isn’t clicked on, there are, I think, two sets of issues to think about.

First, privacy law. As a commentator to Dan’s earlier post noted, even Concurring Opinions, which has relatively few ads, runs lots of javascript hosted by third-parties. Obviously, sophisticated readers can opt out of this collection regime, but the percentage of readers with this level of know-how is small. I’m not in the group.

Second, total persuasion. As I argued here and more extensively here, we should be troubled by a world in which it is impossible to walk, or surf, “without feeling like a targeted consumer.” In a world where ads are generalized, like T.V., you can a) feel confident in your ordinary defenses to advertising – skepticism, caution, disbelief – will work; and therefore b) you will feel the freedom of being unpersuaded, and in making consumer choices that maximize your well-being, broadly defined. This is not true with targeted advertising. Thus, although it is nice that small blogs like ours can monetize themselves – indeed, I pushed and continue to support the decision to take on advertising – we should acknowledge the cost paid by our readers. Targeted advertising on a blog means that readers become consumers, subject to the most persuasive speech money can buy. Ultimately, I imagine that almost every blog with non-negligible traffic streams will take on advertising, if only to defray hosting fees. And folks can be persuaded from cradle to grave. Even during lunch!

(Image Source: Wikicommons.)

  December 27, 2007 at 12:01 am   Posted in: Advertising   Print This Post   One Comment

The Brutal Attack Ads Begin

posted by Nate Oman

(ht Marc Bohn)

  December 13, 2007 at 9:05 am   Posted in: Advertising, Humor   Print This Post   4 Comments

Lessons in Irony: AMC’s Mad Men and the Advertising World

posted by Deven Desai

Many have noted that cable networks produce some of the better if not the best shows on television of late. The Sopranos arguably started this trend but other shows such as The Larry Sanders Show and Dream On opened the way for more creative shows. Recently Battlestar Galactica and The Wire (possibly the best show in the past 20 years although it and similar shows owe a small debt to Wiseguy, a network show, as a pioneer of the season-long story arc) have shown what can be done with good writing and a dedication to developing complex characters and story arcs. This past summer one show, Mad Men, joined the list of excellent television fare. (Irony hors d’oeuvre: Apparently the term, Mad Men, was coined by none other than the advertising world).

The series focuses on the world of Madison Avenue advertising in the late 50s. The set and costume details alone justify watching a few episodes, but what sets the show apart is the way it captures the highs of American corporate life after World War II and the seeds of the lows to come. The advertising masters drink, smoke, and screw as they manipulate words and images to sell cigarettes, alcohol, cosmetics, and vibrating weight loss devices that happen to have a sex-related side effect.

Irony first course: When the Mad Men must overcome the first wave of restrictions on cigarette advertising the main character who is more than lost and unsure about the changing world offers, “Advertising is based on one thing happiness. And you know what happiness is? Happiness is the smell of a new car, it’s freedom from fear, it’s a billboard on the side of the road that screams with reassurance that whatever you’re doing it’s O.K. You are O.K.” And one is not sure whether he believes he is O.K. or because needs that reassurance at all times he is a master at his game.

Irony Main Course: Unlike shows on HBO or Showtime, Mad Men is on an advertising supported network. So after a scene where characters develop ad copy designed to hide smoking’s harms, one watches the modern advertising created by the characters’ descendants. Of course with DVRs the ads would be missed but even here the show and AMC have a solution. As one clicks–one, two, three–to zoom past the commercials, a frame in the show’s opening credits’ look and feel appears. One stops thinking the show is back. But no, instead the interruption offers trivia about the advertisement and/or the company behind the advertisement about to air. Brilliant.

The person who watches the show in part because of the historical aspect of seeing how the advertising world grew now stops to learn more about advertising and specifically the advertising of the advertiser supporting the show. The move also captures the popup video and factoid culture of the nineties. Perhaps the strategy is perverse, but one can admire the irony of watching a show about how advertising manipulates an audience and then being manipulated into watching the advertising. Of course one could ignore or avoid the trick but then again if the advertiser gains just a few more eyeballs or manages to have the product stick just a little longer the advertisement has done its job. Besides did you know that Jack Daniels never revelaed the meaning of Old No. 7? “The first Friday’s Restaurant was in New York City”? “L’Oreal has designed and patented over 120 molecules” “Heineken was first sold in the US in: the 1880’s”? Well stop and watch and you will learn that and much more.

There are many other ways to commend this show, but I would have to indulge in spoilers to do so.

cross-posted at Madisonian

  December 8, 2007 at 12:15 pm   Posted in: Advertising, Culture   Print This Post   2 Comments

Roberson for the Social Networking Generation?

posted by Neil Richards

The New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

  October 2, 2007 at 12:39 pm   Posted in: Advertising, Feminism and Gender, First Amendment, History of Law, Privacy   Print This Post   One Comment

Why Advertise Here?

posted by Dave Hoffman

So we’ve decided to take some advertising. Now that we’ve disclosed what we’re going to do with the ginormous revenue stream, no doubt other ads are on the way.

Now in my view, you should absolutely click through to our advertisers’ webpages. It will help make this site better, and it doesn’t cost you much time. But I have the nagging suspicion that click-through rates for most blogs are quite low. So, why would rational businesses spend their marketing budgets here?

There is some literature on this problem. The answer seems to be something called the “exposure effect.” As John Timmer explains:

There is a long history of experiments that show that repeated exposure to a stimulus that’s barely perceptible can enhance a person’s feelings towards what’s otherwise a neutral object. These feelings can include a liking or more subjective things such as “fame, truth, duration, loudness, stimulus brightness and darkness.”

Timmer is summarizing the findings from Xiang Fanget al.’s An Examination of Different Explanations for the Mere Exposure Effect, in which the authors noted that banner ads are a great candidate for increasing brand strength. They tested the hypothesis, and found that

“repeated incidental exposures to banner ads resulted in increased perceptual fluency without increasing recognition. Consistent with past research, we found increased perceptual fluency to be accompanied with more positive evaluations of the ad but not with negative evaluations, suggestive of a positive affect.”

Thus, the article tartly notes that a “practical implication of this research is that online advertisers might be placing excessive emphasis on the click-through rates—the primary metric for measuring the effectiveness of online ads. Our results suggest that even when there is no overt sign of effectiveness, such as recognition or click through, the banner ads may still impact ad liking.” Even more interesting, from the perspective of some who might be worried about overkill, “consumers tend to have a relatively high level of tolerance for repeated exposure to banner ads—the wear-out effects of banner ads did not kick in even after 20 exposures in this experiment.”

I’ve got to say that I find this research both fascinating and frightening. On the one hand, it hooks into my total persuasion hypothesis. On another, it suggests an inefficiency in the market for online advertising dollars, which allocates money based on click through rates. Perhaps as this research is replicated, that inefficiency will dissipate. What metric for online advertising’s efficacy is on the horizon? Change in Q-Scores?

(Photo Credit: Wikipedia Commons).

  August 7, 2007 at 3:58 pm   Posted in: Advertising, Behavioral Law and Economics, Blogging   Print This Post   No Comments

The Marketized Epistemology of Not-so-Random Ads

posted by Frank Pasquale

Via Brian Leiter: Scholars including Michael Fischl and Angie Littwin are disturbed by the Google-served ads that appear next to their papers on SSRN. Littwin states:

I would strongly prefer not to have ads for credit cards running next to my paper arguing for major changes in the credit-card market. And that subject-matter mismatch will often be the case.

The ads raise a number of interesting issues addressed by both Leiter and Lipshaw commenters. On the one hand, I agree with Hal Varian’s point that marketing in general can create a great deal of value by connecting people to products in unexpected ways.

On the other hand, I think it’s important to realize who is permitting these “potential rebuttals” and who is not. Many have called for a “norm of trackback” on newspaper editorial pages that would give some small platform to critics of their contents. But it’s not really catching on. By and large, the people who will have to give a “right of reply” to critics (via served ads) are people that can’t afford to run their site without such funds.

So though we’ve gotten a bit beyond Liebling’s old bromide “freedom of the press belongs to one who owns one,” inequalities of influence persist in unexpected ways. The credit card companies can easily afford to saturate served ads with their content by, for example, bidding up the price of adwords like “loan” or “luxury splurge.” I very much doubt Prof. Littwin could buy her way onto the MBNA site….though ISP-inserted advertising might provide a way around that.

  July 21, 2007 at 7:26 pm   Posted in: Advertising   Print This Post   2 Comments

Hillary Taps Into Soprano America

posted by Dan Filler

Hillary Clinton’s featured in a new video playing off the Sopranos closer. It’s fun to see Bill and Hil acting, and there’s a nice guest appearance to boot. Remember Bill playing his sax on Arsenio Hall? These guys understand that you need to position yourself in the true American heartland – TV – if you want to connect with voters.

Watch it here. (You’ll have to pass through a fund-raising machine to get there.)

  June 19, 2007 at 2:24 pm   Posted in: Advertising, Culture, Politics   Print This Post   2 Comments

Appropriating “Organic”

posted by Dan Filler

It appears that the titans of the food industry are having their way with the USDA and the feds may soon approve a list of 38 non-organic items that may be included in foods marked “organic.” All of this interesting regulatory play is inidicative of the fact that organic foods finally hit the big time, and thus became worth of Big Food’s attention. We see a several different things happening here.

1. The public is becoming more concerned about the contents of its foodstuffs.

2. With more interest in organic food, Big Food decides to buy into to the industry.

3. Once bought in to the industry, making money off of the public’s (perhaps legitimate) fear of the current foodsupply (that Big Food created and aggressively markets), industry immediately sought to make organic foods cheaper, more attractive, or tastier (or perhaps all three) by adding non-organic ingredients.

4. With its meaning diluted (and I’m not taking a position on whether this dilution is meaningful – whether these 38 ingredients make items more or less healthy), the term organic may slowly lose its value as an indicator that a food product is distinctively more natural.

5. This will open new opportunities for creative small food marketers to create new language signifying the concept that “organic” once conveyed.

In the end, Big Food is simply doing with “organic” what it does with so many of the food products it markets: taking the underlying item (usually things like wheat, but in this case the word organic), processing it until it is a first cousin to its natural state, and serving up this not-quite-real but plenty alluring product to a waiting public.

Is this an example of markets working? Or of the vices of regulation? I’ll leave that question for people who actually spend money on this stuff. And I’ll have a Snickers and a Coke.

  June 11, 2007 at 3:07 pm   Posted in: Advertising, Culture, Food   Print This Post   2 Comments

Politics, Private Space, and Total Persuasion

posted by Dave Hoffman

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

Read the rest of this post »

  May 21, 2007 at 8:50 pm   Posted in: Advertising, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Culture, Economic Analysis of Law, Law and Psychology, Politics   Print This Post   4 Comments

Stanford and Cal Cooperate over Big Game

posted by Alfred Yen

As a loyal Stanford alum, I don’t think I ever thought I’d see the day where Stanford and Cal would link arms over The Big Game. Thank goodness for the NFL, which has applied for a trademark on “The Big Game,” a title that has been applied for many decades to the annual football game between Stanford and Cal.

I’m hardly the first to think that the NFL’s behavior is ill-advised and heavy handed. A quick Google search turns up blog after blog making fun of the NFL’s behavior. That having been said, I’m curious…..Is there anyone other than NFL counsel who’s out there supporting this behavior or the asked-for result?

The NFL’s explanation is that they want to stop people from piggy-backing on the goodwill of the Super Bowl — you know, selling TV’s for “your big Super Bowl party.” In the story linked to above, the NFL says it sells sponsorship rights to Samsung, and suggests that the value of those rights would dissipate if they didn’t get the trademark. I’m a little surprised that someone isn’t defending this outcome as “correct” because it allows internalization of all social value from the Super Bowl to the NFL, thereby giving the NFL the proper market signal to invest in putting on its annual extravaganza. Perhaps I’ve missed it? Heaven knows I don’t read the whole blogosphere. Or, has the NFL taken us past the limits of the “internalize all externalities” policy?

  March 5, 2007 at 8:36 pm   Posted in: Advertising, Culture, Economic Analysis of Law, Intellectual Property   Print This Post   2 Comments

Best and Worst Internet Laws

posted by Eric Goldman

[Preface: I've already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I'll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

Read the rest of this post »

  February 15, 2007 at 11:27 pm   Posted in: Advertising, Consumer Protection Law, DRM, Intellectual Property, Privacy (Electronic Surveillance), Technology   Print This Post   4 Comments

Thoughts on Marketing

posted by Frank Pasquale

Inspired by Ellen Goodman’s fascinating article on “Stealth Marketing,” here are two random thoughts on ads and such during this frenetic shopping season.

First, from the Economist, on the relevance of postmodern theory to modern business:

Modern retailers are only just getting to grips with two of the consequences of the breakdown of authority and hierarchy that [pomo theorists] hoped for half a century ago: the “fragmentation” of narratives and the individual’s ability to be “the artist of his own life”. Modern business uses a different language to discuss the same ideas. In “The Long Tail”, an analysis of the impact of the internet on the music industry, with wider ramifications, Chris Anderson describes the “shattering of the mainstream into a zillion different cultural shards”. The post-modern “fragment” becomes a “niche” and the mass market is “turning into a mass of niches”.

This is a bit abstract, but I highly recommend reading Clotaire Rapaille’s The Culture Code to see how it works in action. Rapaille uses extremely simple narratives to get at the subconscious wellsprings of consumer behavior.

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  December 22, 2006 at 10:12 am   Posted in: Advertising   Print This Post   One Comment

Scentvertising, Bubbles, and the Battle for Mindshare

posted by Frank Pasquale

I serendipitously encountered two bellwethers of commercial culture today. The WaPo looks at retailers’ increasing use of fragrances to enhance consumers’ moods. Is this effort to get people in a buying mood a bit like subliminal advertising? Some unexpected nuisance issues arise:

The American Lung Association has received several complaints about scented stores, spokeswoman Janice Nolen said. The fragrances have triggered flare-ups for asthma sufferers and those sensitive to certain chemicals. “I don’t want to sound like the Grinch,” Nolen said, but “sometimes these fragrances can be a barrier to people.” Evelyn Idelson . . . is one of them. She first noticed that her laundry detergent was scented. Then her dishwashing liquid. Now, she said, everything smells. “I can’t stand it,” she said. “I think it’s an invasion of personal space.”

The California Milk Processor Board has responded to such complaints, removing ads that smelled like cookies. “Taunting [the obese] with the smell of off-limits cookies was just cruel, they said.” Given the parlous state of many Americans’ finances, perhaps Debtors’ Anonymous should launch a similar campaign for all luxury goods.

But then again, we’d never say the same thing about images of products, would we? Perhaps it turns out that scent is more visceral than sight:

“You smell a rose, and your brain doesn’t go, R-O-S-E,” said Charles S. Zuker, a researcher with the Howard Hughes Medical Institute. “Your brain recalls what a rose is like.” Daniel Lieberman, an associate professor of psychiatry at George Washington University, called smell the most “primitive” of the senses. Odor receptors in the nose are actually brain cells, he said.

So I suppose scent is in a category of its own.

But for those frustrated with all-pervasive commercial culture, there is another alternative: self help. Harvard’s Berkman center recently had a panel on “culture jamming,” including many leaders in cyberactivism. I was intrigued by Ji Lee’s bubble project, which encourages renegade “taggers” to scrawl commentary, in bubbles, on ads:

Our communal spaces are being overrun with ads. . . . Once considered “public,” these spaces are increasingly being seized by corporations. . . . Armed with heavy budgets, their marketing tactics are becoming more and more aggressive and manipulative. The Bubble Project is the counterattack. . . . Once placed on ads, these stickers transfom the corporate monologue into an open dialogue.

I suppose many will deem the Bubble Project illegal art, or mere graffiti, and may even think Ji guilty of inducing copyright infringement. But I think it’s worthwhile hearing his side of the story, and thinking about the ways in which ordinary citizens can try to avoid (or undermine) a barrage of commercial messages. As Hannibal Travis notes, there is a “battle for mindshare,” whether we like it or not.

PS: This is a very interesting disclaimer from the FAQs of the Bubble Project:

Q: Is it legal to place bubbles on top of ads?

A: No, it’s illegal. It’s consider[ed] vandalism to deface any public or private message. If you are caught, you may be subject for fines and even get arrested. You figure it out on your own. I’m not responsible for your actions.

Art Credit: Aric Obrosey, The Symbolic Lotus of a Thousand Colonels [Sanders]

  December 19, 2006 at 6:18 pm   Posted in: Advertising, Anonymity, Privacy, Property Law   Print This Post   No Comments

When Will Skadden Finally Get Its Own Stadium?

posted by Dan Filler

I love that the Utah Jazz has sold their stadium naming rights to Energy Solutions, a nuclear waste storage company. The Times reports a series of great nicknames that savvy Salt Lake sportos have suggested for the facility. The Tox Box. The Glow Bowl. The JazzMat. And of course, my own personal favorite, Radium Stadium.

We have become so accustomed to commercialization of just about everything that this story, while humorous, is entirely plausible. And that’s lucky, because it’s true. I wonder if a stadium naming opportunity can be created for any legit company in America. How about Jack Daniels Stadium or the Marlboro Center? (If these names don’t play in Utah, perhaps they’d work in a place like Chicago.) Perhaps Howard Dean should have ponied up some cash and taunted Jazz fans by renaming the place Democratic National Party Hall. (Would locals derisviely call it the Dean Dome? And if t-shirt makers emblazoned souveniers with the motto, could Carolinians sue?)

Which all leads nowhere, except to ponder whether law firms will ever get into the biz. Surely Skadden, Arps would benefit from having the firm’s name surface regularly on NBA-TV and ESPN. I’m convinced there are some great nicknames a law-firm-titled stadium could generate, but for now I’m somewhat stumped. MoFoField just doesn’t knock my socks off. Anyone have suggestions?

  November 29, 2006 at 12:00 am   Posted in: Advertising, Culture   Print This Post   12 Comments

Discount Caskets Online? Shop Costco!

posted by Dan Filler

I was feeling in a shopping sort of way this afternoon when I wandered over to Costco.com. There I discovered what others may have long known: the big box discount house sells caskets. What a lift for the spirits! The funeral business has always been notorious for its attractive business environment. Who wants to shop around for the best funeral value? And who wants to be seen as skimping on cheapo casket for a dead loved one? As a consequence, the industry hasn’t been subject to widespread discounting. (But see this.) And now, with the rise of the funeral home chain, the marketplace is amazingly seeing an INCREASE in funeral prices. Yet this situation clearly creates opportunities for entrepreneurs willing to take on the taboo and sell their product based on price (rather than, say, Dignity.) Somehow, I never saw Costco as such a niche player. Clearly, I was naive!

This discovery has led me to ponder a number of questions.

Do people skimp more on the box when they’re buying on the web, in the absence of sales pressure? Or do they buy fancier caskets because they’re more affordable? And who exactly skips overnight delivery, preferring to get their casket via “standard shipping”? (Do some people prepare for the big day, sticking the casket in the garage until it becomes necessary?)

How many people join Costco for the sole purpose of a buying a casket? Maybe Costco doesn’t even try to make money on this segment. Like discounted plasma TV’s and cases of Bounty, perhaps it’s just a loss leader, a way to drive business to the site.

“I came for the casket, but I stayed for digital videocamera.” Or something like that.

  November 27, 2006 at 12:00 am   Posted in: Advertising, Culture   Print This Post   2 Comments

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