Advertising & Marketing Law
The Advertising Lawyer
By Leonard Orkin
Published by Aspatore Books
The following is an excerpt from the full "The Advertising Lawyer" article, which is published in the book Inside the Minds. For information, visit http://www.aspatore.com.
The Leadership Role
Advertising law is not a single discipline; it is an industry-focused, industry-related practice. Therefore, in my time as an advertising lawyer working with many different clients, I have been involved in a number of different areas.
Advertising lawyers, like all lawyers, focus on whatever becomes a problem for their clients. For example, if there is a very active Federal Trade Commission, a lawyer will spend a majority of his time on false advertising matters. As a more conservative government comes into power and the Federal Trade Commission loses much of its steam, the advertising lawyer finds himself spending more time in other areas where false advertising is enforced by private litigation (Section 43(a) of the Lanham Act) and the self regulatory National Advertising Division of the Council of Better Business Bureaus rather than by the federal government. Thus, “advertising law” becomes a broad, constantly changing, and forever interesting discipline.
Adding Value for the Client
Marketers, be they an advertiser or an advertising agency, when dealing with a creative product, thread their way through a potential minefield. Let’s take, for example, a product claim. If it is a drug product, are the claims the client wishes to make off-label, or are have they been approved by the FDA? For other products, is there support for the claim, and how solid is it? If it is to be made in a television ad, will the broadcasters accept it? If the creative parallels a pre-existing work, are they coming too close – close enough to be infringing? If they are about to engage the services of a celebrity spokesperson, have they built in enough protection in the contract so they don’t become controlled by the celebrity?
Common Issues in Advertising Law
False Advertising Claims
False advertising claims comprise a major problem area that face most lawyers who work with advertisers and advertising agencies on advertising and marketing issues. As a general rule, smart advertisers hire smart advertising agencies. Advertisers tell the agency the claim they want to make, and the agency shapes that idea into an arresting communication without altering the “core claim.” What smart agencies do is show their lawyer the claim and the evidence they have to support it before they show it to their client. The lawyer then examines the claim and whether the evidence is solid enough to defend against a false advertising claim. And keep in mind: the FTC will deem a claim unsupported if the proof of the claim is developed after the claim is published. It is in the advertiser’s best interest to have this research done even before the lawyers are involved, so that they don’t have to complete it later in the process, thereby holding up production of the advertisement. If done properly , when the Federal Trade Commission or a 43(a) Lanham Act challenge begins, they are ready with a solid defense based on solid proof.
When is a claim sufficiently substantiated? The answer varies. What kind of claim is it? If an “establishment claim,” (e.g. “Studies prove that analgesic A works twice as fast as analgesic B”), the proof must be “evidence sufficient to satisfy the relevant scientific community of the claim’s truth.”1 However, if the claim is not an establishment claim, a “reasonable basis” will suffice.
The lawyer interprets an advertising claim the way the reasonable consumer interprets it. This is where consumer testing can be useful. A testing service puts together a panel of consumers, shows them an ad, and gauges their response. Over the years, I have reviewed hundreds of the results of these types of surveys. It tells us what the consumer believes has been said and allows us to reevaluate the claim if necessary.
Other testing should involve the lawyer early on. For example, when a client wanted to prove that his hamburger tested better than a competitor’s, we had to set up a very involved, delicate testing protocol. First, we had to buy the competitive hamburger from a nearby store and assure that it got to the test site piping hot and in pristine condition. Secondly, we had to treat the client’s hamburger identically – that is, buy it over the counter, speed it to the test site and have it tested in the same amount of time as the competitor’s burger. My recollection is that we gave both a fifteen-minute window. Then, of course, the taste testing panel had to be randomly selected and the burger had to be provided for the testing out of their wrapper so they could not be identified. Finally, the testing was done double blind, that is, neither the tester nor the taster knew the identity of the burger. When the competitor complained that my client’s claim was false, a complete set of test results was shown to the competitor and killed his lawsuit immediately.
Intellectual Property Issues
One of the main areas in which advertisers are currently running into issues related to intellectual property is in the use of music in advertisements. Everyone seems to want to use the most current music in their advertisements, but obtaining the necessary rights to such music can be both expensive and time-consuming because there are several layers of rights for any one piece of music. For example, an advertiser may want to use a famous song in an ad. These rights will have to be obtained from the underlying copyright owner. Most of the time, someone else owns the rights to the sound recording. Finally, the sound recording may include the identifiable voice of the singer, who owns a separate set of rights. Keeping all these rights straight and obtaining them requires a great deal of time, effort and money.You may be licensing the synchronization right (the right to synchronize the sound to the pictures) from the underlying copyright owner. The license for the sound recording (master recording right) will usually be owned by the “label,” who may or may not own the rights to the voices that made the song famous. When the lawyer tries to obtain those rights, surprises may be in store. For example, when we went to license the voices of a famous 1970s singing group, having already obtained the synch rights and the master rights, we were surprised to find out that there were no less than three groups currently touring the U.S. using the name of the famous ’70s group. There had been five men in the original group. Two had died, and each of the remaining three, took the group name and toured with it – each singing the group’s signature ’70s songs, each with four newcomers and one “original.” I thought clearing that mess took too much time, too much effort, and too much money. But the result made the client happy.
FOOTNOTES
1 In Re Bristol Myers Co., 102 FTC @ 321.
About the Author
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