Category: Advertising


Are T.V. Programs Killer Apps?

Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them.

The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn’t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today.


IP Law and the Presidential Sneakers…

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 “” 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: “ 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?


The Blogosphere Running on Fumes?

tn_xlarge_Pinto.jpgGandelman’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.)


Cultural Difference

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.


How Far Should Safety Ads Go?


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


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

dollars2.jpgInside 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


Persuading Surfers’ Eyeballs

800px-Ecclesia_romana_(particolare),_XII_sec._d.C.,_mosaico_policromo,_dalla_Basilica_di_San_Pietro.JPGIt’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, 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.)


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

MadMen2.JPGMany 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


Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe 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.