Advertising and Marketing

The Future of Video

Legal and Business Considerations

By Simon N. Pulman

Consumption of online video continues to grow at a rapid pace. Online video ad revenue is projected to reach nearly $5 billion in 2016, while premium streaming video distributors including Netflix, Hulu Plus and Yahoo are stepping up their licensing and commissioning of original content. Most industry observers believe that online video – notably to the extent consumed through mobile devices – is an important component in the future of the internet.

In order to capitalize upon the growth in online video, media companies (both traditional and emerging) are creating dedicated divisions aimed at developing and producing a full range of video content, ranging from micro-short form clips with strong potential for sharing via social media (e.g., Vine), to original series and even feature length motion pictures. Certain companies may also break away from traditional film and television formats to experiment with new forms of video and transmedia content.

In this new ecosystem, certain fundamental principles remain. Regardless of video format or distribution platforms, all innovative business practices must be built upon a strong foundation of legal experience, necessary due diligence and robust content production and distribution expertise. Nonetheless, there are a few business and legal issues that deserve special consideration by the next-generation video content company. Here are three issues to consider with respect to the future of video: Continue reading

Native Advertising Basics

Three Things to Know Before Going Native

By Simon N. Pulman

The use of “native advertising” online has grown at a considerable pace over the past two years, with some studies projecting that it could account for five billion dollars in spending by 2017 – far outpacing the growth of traditional online display ads. Such is the economic (and some might say creative) potential of native advertising that some companies such as Time Inc. have created dedicated departments to create and sell native ads across platforms including web, mobile and social media. HBO star John Oliver even devoted eleven minutes to the trend during a recent episode of his show “Last Week Tonight.”

Currently, no single definition for “native advertising” exists, and what constitutes native advertising is still up for debate among advertising executives, regulators and attorneys. However, native advertising may be most easily understood as online paid content that is published adjacent to, and is often created by the same publisher as, traditional editorial content (see some examples here). Native advertising can take the form of long-form journalism, video, images, infographics, games, top-10 style “listicles” and other content. While some native advertising is fairly simplistic and not far removed from traditional product placement, more progressive forms may seek to play off popular culture, educate a user about an issue, promote a cause or demonstrate a brand’s themes and values without engaging in any kind of “hard sell.” As a result, the best native advertising may be equally creative, well executed and valuable for the reader as truly independent editorial content. Continue reading

Judging a Juice by its Label

The U.S. Supreme Court’s Decision in POM Wonderful LLC v. The Coca-Cola Company May Open the Lid to Lanham Act Liability Even Where Another Federal Statute May Apply

In POM Wonderful LLC v. The Coca-Cola Company, the US Supreme Court resolved much of the uncertainty surrounding the intersection of unfair competition claims under the Lanham Act relating to food labels and the strictures of the Federal Food, Drug and Cosmetic Act (FDCA).  These two federal statutes cross paths in cases where a food or drink label is alleged to mislead the public.  POM, which grows pomegranates and manufactures pomegranate juices, brought unfair competition claims under the Lanham Act against Coca-Cola, alleging that one of Coke’s labels was false and misled consumers.  The label at issue named Coke’s product “Pomegranate Blueberry;” however, the drink only contained 0.3% pomegranate juice and only 0.2% blueberry juice – the majority was less-expensive apple and grape juice.  POM asserted that such labeling misled the public into buying a cheaper juice and thereby damaged POM, whose products actually contain high percentages of more expensive pomegranate juice. Continue reading

U.S. Supreme Court Clarifies and Simplifies Standards for Ability to Bring Section 43(a) False Advertising Claims

High Court Resolves Circuit Split on “Prudential Standing” to Bring False Advertising Claims Under the Lanham Act:  Lexmark Int’l, Inc. v. Static Control Components, Inc., No. 12-873 (2014)

In what has become rare in recent years, the Supreme Court issued a unanimous opinion, this one deciding the proper test for what is often called “prudential” standing  to bring a false advertising claim under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).  Writing for the Court, Justice Scalia considered the three different tests applied by the various circuit courts of appeal, and dismissed them all in favor of a standard reminiscent of law school torts class:   “To invoke the Lanham Act’s cause of action for false advertising, a plaintiff must plead (and ultimately prove) an injury to a commercial interest in sales or business reputation proximately caused by the defendant’s misrepresentations.” Continue reading

FTC Issues New Guideline Report for Online and Mobile Advertising Disclaimers

The Federal Trade Commission (“FTC”) issued new guidelines this week for media outlets, advertisers, brands, celebrity brand spokespeople and other parties advertising products online. The report, titled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” builds upon the FTC’s previous report on digital marketing practices, issued in 2000. In addition to emphatically clarifying that the FTC’s jurisdiction applies as much to the “wide spectrum of online activities” as it does to offline advertisements, the report provides useful guidance regarding the placement of effective limitations and qualifications on advertising claims and the “clear and conspicuous” standard that governs required disclosures. Continue reading

Facebook Introduces Graph Search, Privacy Challenges Possible

Facebook recently unveiled “Graph Search,” an innovation designed to help users find and connect their friends by their interests, shared history, and past activity on the social networking platform. The new feature, which will begin beta testing soon, greatly expands the search capabilities of the Facebook platform in a move some commentators speculate may help it compete with Google in the search business area. The Wall Street Journal has a rundown of Graph Search’s functionality here. Continue reading

Copyright Protection for Food – Perishable?

Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046 (C.D. Cal. 2011)

In Kim Seng Co. v. J & A Importers, Inc., a California District Court considered the copyrightability of a food display. Kim Seng Co., (“Kim Seng”), a Chinese-Vietnam food supply company sued another Chinese-Vietnam food supplier, J & A Importers, Inc. (“J & A Importers”), for using an image of a bowl of food on product packaging for rice sticks. Kim Seng alleged copyright and trade dress infringement for using its product packaging. And also interestingly, it sued J&A for copyright infringement of the food display itself. Continue reading

Buzz Aldrin Grounded

The Topps Company recently released a set of “American Heroes” trading cards which include well-known politicians, actors, athletes, scientists and events. Famed astronaut Buzz Aldrin attempted to block the release of certain cards believing the cards improperly incorporate his name, likeness and image in a commercial manner. The cards in question include the famous “Visor Shot” image of Aldrin on the outside of the cardboard box packaging, a mission card, and a “signature cut” card which contains original signatures taken from other documents. Continue reading

Good Day for Green Day: Judge Rules in Favor of Fair Use

In a lawsuit against the band Green Day, by Derek Seltzer (an L.A. Based Artist), the U.S. District Court Judge ruled in favor of Green Day in a motion for summary judgment on the basis of their fair use defense. Seltzer accused Green Day of violating his intellectual property rights through their unauthorized use of, and by altering, Seltzer’s notorious work, “Scream Icon”. Green Day’s use of the work appeared in a video backdrop during live performances of their song East Jesus Nowhere, throughout their 2009 tour. Continue reading