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…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)

Everyone knows there is competition, hype and controversy over nominations and awards at each year’s contest run by the Academy of Motion Picture Arts & Sciences. The competition culminates in an annual show broadcast around the globe and endearingly referred to as the “Academy Awards,” or simply the “Oscars” – referring to the golden statuette given out during the broadcast and evidencing the winners. In recent years, the hosts of the Oscar broadcasts – some controversial and others not – have changed almost as often as the tidy-whities displayed by Michael Keaton  in this year’s Best Picture winner Birdman or (The Unexpected Virtue of Ignorance). But do you know the legal controversy surrounding the Oscars?

Here are the facts:

Ellen DeGeneres wanted to take a “selfie” together with some of the most famous people in Hollywood, and by “tweeting” the photo, it become the most re-tweeted Twitter post ever. The camera used for the selfie was a Samsung Galaxy Note 3. Samsung is one of the advertisers with the Academy of Motion Picture Arts and Sciences, and Samsung gave it to Ellen for promotional purposes at the event. We don’t know of any agreement between Samsung and either the Academy or Ellen DeGeneres regarding the device or any photos or messages using the Galaxy Note 3. We do know Ellen did not actually take the picture. To get everyone she wanted to fit into the picture, Ellen passed the camera to Bradley Cooper, who had longer arms. He got everyone in the frame and pressed the shutter.

Here is the photo and tweet that resulted, and which immediately went viral when posted on Twitter.

which she then ‘Tweeted’

Continue reading “…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)”

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Pardon Me, Your Name is Showing (Perception or Reality?)

Before we moved online to a blog format, from 1996 through the end of 2008, Legal Bytes was published as a one-page, monthly newsletter. But even then we had Useless But Compelling Facts, a feature our readers tell us they like! That said, the threads of continuity continue to haunt us. Witness the following:

In March 2004, the Useless But Compelling Fact question asked how “The Doors” got its name. The answer was that Jim Morrison decided to call his band The Doors after reading The Doors of Perception (1954), a novel written by Aldous Huxley about his use of hallucinogens. Huxley was made famous by his 1932 novel, Brave New World.

Although Legal Bytes was not yet a blog back in 2008, we have digitized and uploaded Legal Bytes material from as far back as 2004! Why is this relevant? Because in 2008, Legal Bytes published a short article entitled "The Doors of Perception Can Sometimes Lead to Harsh Reality," about a false advertising case involving the use of Jim Morrison’s name, likeness or other distinctive characteristics, in advertising by a concert band that included two former members of the original The Doors. Now it seems that Jim Morrison’s fans, followers, administrative agencies and regulators continue to seem intent on protecting and restoring Mr. Morrison’s good name.

There is a joke that goes something like, “if you remember the 1960s, you probably weren’t there.” For those of you who do recall, you will remember Mr. Morrison was convicted of profanity and indecent exposure stemming from allegations he exposed himself during a concert at the Dinner Key Auditorium in Miami in 1969. At the time of his trial, other band members insisted he never actually exposed himself, but fans offered conflicting versions of what happened and he was ultimately convicted. That conviction was being appealed by Mr. Morrison at the time of his death in Paris in 1971.

Well a few days ago—more than 40 years from his conviction and at the request of outgoing Florida Governor Charlie Crist—the Clemency Board in Florida unanimously voted to pardon Mr. Morrison (posthumously) for his conviction. Rest in peace.

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Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines

A few days ago, Legal Bytes alerted you to the fact that the Federal Trade Commission has issued revised "Guides Concerning the Use of Endorsements and Testimonials in Advertising". These revisions update the FTC’s Guides, last modified in 1980, that provide direction to advertisers and agencies regarding compliance with the FTC Act.

John P. Feldman, a partner in our Washington, D.C. office and a key member of our Advertising Technology & Media law team, has prepared (and you can view and download) an Analysis of the New Guides. Of course, no memorandum prepared for general information or a summary of this type can provide legal advice, and you should be careful not to rely on it since everyone’s circumstances and the facts of each situation will differ – at a minimum, based on the type of product or service, the target audience, and the advertising media, among other things. That said, the summary will give you a good overview of what is in the Guides and what is different or updated from the prior Guides.

Of course, if you need specific guidance or need to know more about the FTC Guides, or the implications to social media advertising and marketing or traditional advertising, feel free to contact John P. Feldman, Douglas J. Wood or Joseph I. Rosenbaum, or the Rimon attorney with whom you regularly work.

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FTC Releases Updated Endorsement & Testimonial Guidelines

Although it will be published in the Federal Register shortly, you can download and read the text of the Federal Trade Commission’s  revised "Guides Concerning the Use of Endorsements and Testimonials in Advertising" issued earlier today, right on Legal Bytes now. As reported previously in Legal Bytes, the final revisions are intended to update the FTC’s guidance, last revised in 1980, that provide advice to advertisers and agencies regarding compliance with the FTC Act.

While the prior guidelines allowed advertisers to use a “results not typical” disclaimer, that is no longer a safe haven from liability, and advertisers will be required to disclose what a consumer should generally expect when purchasing or using the product. Furthermore, any connection that a consumer might not reasonably know between an advertiser and an endorser needs to be disclosed. In recent years, comments by bloggers, through word of mouth, buzz or viral marketing were never addressed in the Guides. The updated version now deals with and provides examples of when these rise to a level of connection requiring disclosure.. For example, if a blogger receives any consideration in cash or in kind (e.g., free gaming console to try) to review products or services, that would now be considered an endorsement that requires disclosure – even if the review remains unbiased. 

The fact that a consumer should be informed about a material connection between the advertiser and the maker of the statements is now firmly embedded in the FTC Guides, even though these cases were always subject to review on a case-by-case basis. Of course, what constitutes a “material” connection will still be subject to a factual determination, but if a company, for example, sponsors research about its products or services (or potentially about the products or services of a competitor, if the results will be used in a comparative ad), then the company must disclose its sponsorship in the ad. Similarly, although consumers may expect celebrities to be paid for appearing in commercials, if an endorsement is made outside that context – for example, on a talk show, at a book signing, at a motion picture premiere, or on Facebook, Twitter or other social media – any material relationships must be disclosed.

The proposed new guidelines were the subject of a seminar, "Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States", presented by Joseph I. Rosenbaum, at the University of Limerick in July. You can go to the previous Legal Bytes blog post and download a copy of the presentation at any time.  "

Want to know more about the FTC Guides, or the implications to social media advertising and marketing, or traditional advertising? Feel free to contact me or the Rimon attorney with whom you regularly work.

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British High Court is for the Birds? Actually, for Twitter!

Again in the category of "you can’t really make this up," yesterday the High Court in Britain ordered an injunction served through Twitter – the social networking site.

Donal Blaney, a lawyer, runs a blog called Blaney’s Blarney. Another account, named blaneysbarney, was impersonating Blaney, a politically conservative blogger. Inspired by a case in Australia, where Facebook was used to serve a court order, Blaney asked the court to allow him to serve the anonymous Twitter-user with a court order using the very social network the imposter was using – Twitter! As a practical matter, the court order will only actually be served (i.e., the writ received) when that account owner logs in and accesses his or her account on Twitter.

Since access to British courts appeared much more facile than heading to California in the hopes that a U.S. court will deal with the issue and with Twitter in the United States, he opted to petition the High Court in Britain to allow him to serve the order using Twitter. In the United Kingdom, the law permits an injunction to be delivered through electronic means (e.g., telecopy or even email), so in principle, no new law has actually been created, although this is certainly a novel twist to the existing law – especially since the identity of the imposter account owner was not known to Blaney.

The British High Court agreed, noting that issuing the writ using the Tweeting facility appeared to be the best way to get to the individual behind the anonymous tweeting. As has been noted in Legal Bytes previously, obtaining the identity of anonymous account holders on social media networks can be difficult, with favorable results far from a certainty in all jurisdiction and legal venues.

In the Australian case reported last year, which did not involve impersonation, a couple in Australia defaulted on their mortgage with MKM Capital, but were successfully able to avoid being served with papers in person. They ignored emails and never showed up in court. So, a Supreme Court judge in Australia’s Capital Territory agreed to let MKM Capital serve papers over the Internet. Facebook profiles (you know, those great facts and tidbits you share with everyone in your social media network and the public) had birth dates, email addresses and all the information necessary to satisfy the judge that they could indeed communicate and contact the defendants using Facebook.

Getting back to the recent UK order, online impersonation of sports figures and entertainment celebrities has become an increasing problem and nuisance on social media networks, and Twitter has even reacted to the problem by allowing celebrity "Tweeters" to have their authenticity certified with an icon (similar to a "seal") that is attached to their real profile pages.

The ability to serve legal papers and court orders using digital means through social media – imagine serving my avatar in a virtual world – may have wide-ranging implications for bringing legal actions against those who seek to use anonymity or pseudonymity to insulate themselves from detection when engaging in inappropriate or illegal activities. That said, if the actual account owner is anonymous, how will we know who they are even after they are "served," unless the host or ISP is somehow bound by the service of process.

Stay tuned. Social media is turning the legal world upside down, too . . . let us know if we can help keep you upright. Contact me if you have questions about this or any other matters.

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The Doors of Perception Can Sometimes Lead to Harsh Reality

Although the California Appellate Court, Second Appellate District, has designated the actual opinion as NOT FOR PUBLICATION (this means you must consult the rules of the court before you cite this case), this past May, two former members of the famed rock band The Doors were held to have engaged in false advertising under California law by advertising a concert band using that name. Although a jury found the band members not guilty of trademark infringement or unfair competition, the appeals court agreed with the trial court that “false advertising” claims are not the same, and upheld a permanent injunction against the individuals using the name “The Doors,” or any name containing that name. The court’s ruling also precludes the use of the name, voice or likeness of deceased band member Jim Morrison, in promoting concert ticket sales, citing prohibitions under the California statute regarding rights of publicity. Rimon knows publicity and privacy, in California—and throughout the United States and the world. Always know before you show. Call us, we can help.