last panel at NYLS Amateur Hour

Notes from the panel on Advertising, Brands and Public Relations below the fold.

Advertising, Brands and Public Relations

  • moderator: brands have significant problems with UGC because so much of branding is about control, which inevitably conflicts with UGC. Fundamentally this is a control/powersharing thing. [Later gives an example of the UG Chevy Tahoe ads that said ‘don’t buy me’ because of global warming.]
  • other side of the problem for advertising is the splintering- life was much easier when you had only three outlets (NBC, ABC, CBS.)
  • good question: why are brands offering up Super Bowl space to UGC? Fear? Control? Buzz? Some admission from a panelist that part of it is wanting to understand what is going on. The winner of the Dorito contest was produced by a small (two person?) company who wanted to get attention for their company. (Similar to the ‘submit a logo’ contests that were common in past ages, and typically won by professional firms instead of the amateurs.)
  • How should a company handle ads like the Tahoe ads? Not entirely clear; one panelist thinks the ads should have been screened before publication; another suggests that failing that, they should have been left up to reduce media attention/outcry.
  • TM lawyer is obviously risk-averse- seems to think that any company that allowed something like this [actual example from the talk] would be crazy, given the brand risk, and the low or uncertain potential upside. Another panelist points out that this kind of thing will happen anyway- Fark and Digg are going to rip up your ad anyway, so what do you do about that?
  • UGC can potentially be a way of sending out multiple messages to multiple groups- the Safety Dance Burger King might be appealing to college students, so you might want to look the other way (though of course at that point maybe you’re a contributory infringer for infringing the copyright of Men Without Hats.)
  • What do you do about fake ads, e.g. fake puma ad. No good answers; obviously debunk, but past that it isn’t clear.
  • Q from moderator: why do we seem to react differently to stuff that is non-professional, particularly in advertising? Youngest panelist mentions genuineness/human-ness- created out of either actual appreciation for the brand, or some other thing that makes it more genuine or emotional. (She mentions the various Apple bloggers.)
  • Panel tries to distinguish between solicited and unsolicited ads, though obviously that line is vague. Apparently the most recent Apple iTouch ad I’ve seen was basically a re-film of a UGC ad; I’d heard about it, but not realized that I’d already seen it. Interestingly, it was in such an Apple style already that the remake is virtually identical; it also hadn’t gone viral (only 2K views) before Chiat-Day looked up the author. Interestingly, one panelist thinks it is probably fake (i.e., a plant); the TM lawyer responds that this doubt/uncertainty highlights the actual value of enforcing TM- it helps customers tell the difference. [Saying law needs to fix this seems like saying the law should try to stop the rain, but I’m not sure how it gets replaced, and there is clearly some need there.]
  • we get shown the VW terrorist ad. Question for the panel is ‘who should VW call first- lawyer? PR?’ And there is no good answer- the law and the PR have been inextricably intertwined. Media rep says she’d call the company first, and then try to track down the leaker. Note that this ad looks really, really professional; given the drop in cost for professionally produced ads the confusion between things produced by a brand and against/about the brand will only increase.
  • what about brand parody/remix in UGC? e.g., Wiimbledon (a Wii tennis tournament, presumably problematic for the Wimbledon brand and the Nintendo brand.) Note disclaimer at bottom of Nintendo actually ended up as a quasi-sponsor; Wimbledon never contacted them.
  • perhaps oddest statement: ‘people don’t like to advertise on Facebook because it is thought that you go there to communicate with friends instead of buy things’, but we do virtually nothing to buy things- they still get advertisements. (Drive down the highway, watch TV, etc.)
  • youtube is limiting who can advertise on their streams- invite-only. ‘Leave Britney Alone’ guy, for example, can’t, which means that advertisers can have some control over where they get placed. Social networks create the same fear in brands that their stuff might show up on all kinds of things (both next to odd UGC and next to ads for other products.) Hulu will be much more appealing to advertisers than Youtube, in large part because it locks out UGC. (Unmentioned by panel is the Hulu-Lulu trademark lawsuit, decided in part because Hulu has no UGC.)
  • what about truth/lies, instead of misrepresentation? FTC has mentioned that they are keeping an eye on truth in new-tech-advertising; other regulators are in play too, plus class-action plaintiff’s lawyers as well. Quizno’s offered a $10K prize for UGC ads with a specific Quizno-Subway theme, which (not surprisingly) created a Subway lawsuit. Lawyer suggests that even with in-house oversight of advertising (apparently Kaplan and BARBRI have sued each other 75 times over advertising claims), people get this area of the law wrong all the time, so would be unrealistic to expect amateurs to do the same. Not clear where liability lies (or should lie) in this type of case, but in general, society does benefit from truthful advertisements, so maybe something is required. (See also how this combines with trends toward commercially-sponsored user generated content, and also with previously mentioned increasingly professional-looking advertisements.)
  • testimonials: these are also regulated; this did not go in the direction I expected (obviously fake testimonials by stars) but rather in the astroturf direction. Ran out of time for much discussion, though. (Not blogging the Q&A; I’m tired.)
  • OK, I lied: one comment about the Q&A: a lawyer points out that the standard for consumer fraud (at least in New York state) is the completely increduluous consumer- in other words, it protects the idiot against fraudulent advertising, not the sophisticated consumer (like most in the room.)