Your Voice is Your Identity

In 1992, a jury awarded the singer Tom Waits the equivalent of $6 million in today’s dollars because Frito-Lay used a voice-alike in its Doritos ad and misappropriated his right to publicity. Bette Midler, Shirley Booth, and Bert Lahr also sued advertisers who used their voice-alikes in ads.

The reason for the lawsuits is that a distinctive voice is a recognizable component of a person’s identity, and the use of a person’s identity without consent to sell goods violates their right of publicity. With new technology, there will be many new incidents.

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Illinois’ Problematic Gun Law

I enjoy disparate interests. I teach Second Amendment law, and teach and write a treatise on advertising law. I was surprised that two of my legal interests coincided when Illinois House Bill 218 was signed into law by the Illinois Gov, J.B. Pritzker.

H.B. 218 is an omnibus gun safety law, and one of its prohibitions is the advertising of a gun in a way that may support, recommend or encourage a person under 18 to unlawfully purchase, possess or use a firearm in Illinois. In addition to the vagueness of this criminal statute, it has First Amendment problems. Maybe Second Amendment issues, too.

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The Taco Tuesday Tussle

Some fast food trademarks make me hungry. Taco Bell’s recent fight with Taco John’s over Taco Tuesday® did so. But trademark battles between two fast food chains aside, I thought more interesting was how Taco Bell turned the dispute into entertaining advertising that promoted its brand more than its product. More on this shortly.

Is Taco Tuesday a proprietary trademark, a designator of a single source of a product? Is it a generic term, available for use by all sellers of tacos to describe in terms generally known to the public that tacos are eaten or a good deal on Tuesdays? The question to chew on is what has the public come to understand Taco Tuesday to represent? A designator of source, or is it merely a declaration used by many that Tuesday is a day to eat tacos? Even if it began life as a designator of source, it can become generic through use. Think shredded wheat, or aspirin. Continue reading

Updated FTC Endorsement Guides

What if Paris Hilton were to rave to her followers about how much she likes her McDonald’s salad, or Roger Federer tweets photos of Coppertone lotion to his followers, or Khaby Lame shows up on TikTok in a Puma logo shirt. Any problem here? Any special requirements? On June 29, 2023, the Federal Trade Commission (“FTC”) delivered an updated version of its Guides Concerning Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”), which are administrative interpretations concerning application of section 5 of the FTC Act. The Guides are not law; they are advisory and intended to give guidance to businesses and others to ensure that advertising using reviews or endorsements is truthful, but they are the FTC’s litigating positions, and an advertiser violates them at its own risk. The updated Endorsement Guides are available here (starting at page 44 of 84).

The FTC also issued an updated version of its guidance document, titled FTC’s Endorsement Guides: What People are Asking, that answers frequently asked questions about the Endorsement Guides (the “FAQs”), including when and how to disclose material connections between an advertiser and an endorser; the FAQs are available here.

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How Much Should Artificial Intelligence, AI Advertising Be Regulated?

Artificial intelligence continues to dominate the news, which is rather remarkable considering all the other happenings of importance. The discussion of dangers posed by artificial intelligence took center stage in Congress when Sam Altman, CEO of OpenAI, told a Senate panel hearing that society is at a “printing press” moment and that Congress needs to regulate AI.

Altman, whose company created ChatGPT, advanced his three-point plan. He wants: a new federal agency to license AI models, with the power to revoke licenses if a licensee does not comply with standards; implementation of safety standards and evaluations of dangerous AI capabilities; and audits of a model’s performance. An entrepreneur and business leader asking that his industry be regulated is as rare as a beef steak at a vegan banquet. Continue reading

Do You Know What Your Data is Doing?

The headline is a mouthful, but in the time you read this column your personal data has probably been collected by the more sophisticated vendors with whom you do business and is being used to target you for more purchases. This now-common practice might offend or it might be seen as consumer-useful.  It’s very clear, though, that artificial intelligence plays a role in selecting data capture and crafting the ad messages. Continue reading

Celebrity Advertising Endorsements and Promotion Can Be Expensive — For the Celebrity

It’s the rare celebrity, whether sports or Hollywood, who has not acted as an advertiser’s spokesperson, or even as an endorser. The deals run from Jimmy Walker hawking Medicare insurance on late night TV to William Shatner, who made $13 million to promote Priceline. That’s not bad money for a few hours on the sound stage every year. Rapper Travis Scott is said to have made $20 million promoting McDonald’s on social media.

Not all of these deals pass legal muster, however, and when a celebrity endorses a product in his field of interest, such as a celebrity racecar driver pushing tires, the public has a right to believe the celebrity means what he says and actually uses the product.  Where it is obvious the actor, or celebrity, is merely being paid to act as a spokesperson, product use is not needed. And, when the celebrity is given something of value to add an endorsement, disclosure is required. If these rules are not followed, the result may be a claim by a state attorney general, the FTC, or group of consumers that the celebrity endorser engaged in deceptive trade practices. Continue reading

Ads Bowing to the Pressure

Decades back when we first represented advertising agencies, the proliferation of titles involved executive vice presidents, senior vice presidents, vice presidents…well, you get the point. Someone once quipped “hand out titles, not raises.” Today, new positions abound in agencies. There are creative directors, chief experience officers, strategy officers, branding directors, and chief marketing officers. The latest misery to befall the maker of M&M candies evidences the need for a strategy king (or queen) in charge of sensitivity. Continue reading