Techdirt. Stories filed under "commercials"

DailyDirt: Ads Gone Wrong

Michael Ho — Mon, 6 May 2013 17:00:00 PDT

Commercials are always trying to get people's attention -- sometimes by being controversial and sometimes by being shocking. But even when a company tries to broadcast only sensitive and feel-good messages, there will always be some folks pointing out that companies don't really care about people as much as profits. Here are just a few advertisements that might have just missed getting their message across.

Why is it that car companies seem to have a hard time NOT making offensive ads? Ford India recently apologized for some terrible ads depicting bound and gagged women in the spacious hatchback trunk of a Ford Figo. But Ford wasn't the only example, Hyundai and GM also had some horrible commercials to retract recently. [url]
Dr Pepper posted an ad on Facebook with a common geeky joke, showing the evolution of humans -- starting with a chimp-like ancestor and ending with a modern upright person holding a can of his favorite beverage. Poking the beehive of anti-evolution religious folks might be a fairly safe way of creating some controversy, but it probably doesn't sell that much more sugar water. [url]
The Economist once ran an ad for itself, asking "Why should women read The Economist?" Maybe publications written by -- and read by -- mostly men should be a bit more careful when trying to step away from being a "Maxim for nerds"..? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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CBS Bans Commercial That Disparages Coke & Pepsi, But Lets Them Disparage Each Other

Daniel O'Connor — Fri, 1 Feb 2013 13:46:13 PST

Oh, the benefits of incumbency.

Sodastream is a cool new company that allows consumers to make their own carbonated beverages at home. Given its popularity, largely due to its ease of use, SodaStream’s stock has been on a run the last few months. It also possesses the potential to disrupt to established beverage companies like Pepsi and Coke.

Not surprisingly, SodaStream would like to advertise this fact. In fact, it is so keen on advertising the relative benefits of its product over the more traditional route of buying pre-made soda from the store that the company ponied up for a Super Bowl commercial. Unfortunately for SodaStream, the ad was rejected by CBS, not because it was too risque, but because it “disparages” other major advertisers (which is apparently more objectionable than borderline softcore porn a la GoDaddy and Mercedes). As Ad Age reported:

The content of its planned commercial seemed to have concerned CBS because it was a direct hit at two other Super Bowl sponsors and heavy network TV advertisers: Coke and Pepsi.

We’ve discussed elsewhere CBS’s newfound affinity for the ban hammer, but this isn’t even the first time this has happened to SodaStream. British regulatory authorities yanked Sodastream’s first major advertising campaign for “being too disparaging towards soda manufacturers like Coke and Pepsi.”

How disparaging was SodaStream that its ads were pulled from television? Well, it simply pointed out that SodaStream was more environmentally friendly than drinking off-the-shelf sodas because, with SodaStream, “you could save more than 2,000 bottles a year.” Wow, that is incendiary. Not safe for public consumption!

It gets better. Clearcast, the NGO — funded by the British broadcasters — that pre-approves most advertisements for British television, reportedly offered this rationale for pulling the ad:

The majority decided that the ad could be seen to tell people not to go to supermarkets and buy soft drinks, [and] instead help to save the environment by buying a SodaStream. [SodaStream] was also told that it constituted denigration of the bottled-drinks market.

Hypocritically, U.S. broadcasters have allowed Pepsi to air Super Bowl ads that bashed Coke directly, as Ad Age also pointed out:

Interestingly enough, Pepsi has scored big points with viewers over the years by showing Super Bowl ads with Coke deliverymen abandoning their employer wholesale for a sip of a Pepsi drink.

Moral of this story: Pepsi and Coke can attack each other over trivial differences in their products, but don’t attack the business model of big incumbent advertisers.

Fortunately, there is an upside for SodaStream. All the controversy that these ads have stirred has generated a buzz around them. The SodaStream “banned Super Bowl ad” has already generated more than two million hits on YouTube in two days and generated a media buzz around the company itself. And that’s without having to splash $3.8 million worth of cash for a Super Bowl commercial. Another example of the Streisand Effect in action.

[SodaStream is running a commercial during the Super Bowl, but it was forced to replace Coke and Pepsi with fictional soda companies. However, that ad only has a little more than 17,000 YouTube views in the last two days.]

Cross posted from Project-Disco.

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DailyDirt: Advertising Mistakes; Hilarity Ensues

Michael Ho — Mon, 9 Jul 2012 17:00:00 PDT

Advertising is a tricky business. Not only do you not know where half your marketing budget goes, but it's possible to waste 100% of your advertising with an innocent mistake. It's tough to try to make funny and catchy ads, and not everyone has the same sense of humor. Here are just a few examples of some ads that have backfired.

Automatically serving ads without a human editor to judge the appropriateness of the content can be a really bad idea -- especially when placing ads on news items. Yahoo News recently inserted ads for Express clothing on a news photo -- unfortunately the photo pictured a distraught man who survived an attack by Taliban militants. [url]
KFC ran a commercial in the UK a few years ago that set a record for complaints -- because viewers thought it encouraged bad manners and mocked people with speech impediments. This commercial has held on to its record to this day, but there probably aren't many agencies vying for the title. [url]
Pizza Hut knows its customers love pizza, but does a love of pizza correlate with disliking math? This commercial needs to show its work on how it arrived at its conclusion. [url]
Kenneth Cole is trying to raise "awearness" with some edgy ad campaigns. But one of its billboards generated some backlash from teachers when it suggested that teachers' rights were at odds with student interests. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

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TV Networks File Legal Claims Saying Skipping Commercials Is Copyright Infringement

Mike Masnick — Fri, 25 May 2012 06:42:00 PDT

Okay, we had expected the TV networks to possibly take legal action against DISH Networks for its new Auto Hopper technology, which allows DISH subscribers who use the Hopper feature (which records all prime time shows from the four major networks) to autoskip commercials, if they watch shows in the days after they originally air. It wasn't a surprise that the TV networks didn't like this at all, but could they really make a legal argument that skipping commercials was against the law? We've all heard the story of former Turner Broadcasting exec Jamie Kellner claiming that not watching commercials was "theft," but do the networks actually think there's a legal basis for such claims?

It appears they do. Though, the legal arguments are insane.

As you may have heard by now, Fox, CBS and NBC Universal have all sued DISH in California. At about the same time, DISH itself filed for declaratory judgment in New York against those three, and ABC, who hasn't yet filed suit, but perhaps will shortly. I would imagine that all of the cases will be consolidated in one of the courts.

What's scary, however, is that the TV networks appear to be using this lawsuit to claim that skipping commercials is copyright infringement. ~~I haven't yet seen the NBC filing~~, but the Fox and CBS filings both make this same basic argument. Update: NBC filing is added below, and is nearly identical to the CBS filing, down to the very same lawyers. Fox first argues that merely recording the entire prime time lineup is making "bootleg" copies of the videos. That's a rather stunning claim, and a direct challenge to the Supreme Court's ruling in the Betamax case, which made it clear that time-shifting is legal. The networks are claiming that this is not the same thing, because the "copies" aren't being made by the user, but by DISH itself for use by the user. Beyond being a meaningless distinction, it's also not true. As the Cablevision case concerning a "remote DVR" offered by the service provider showed, if the actions are at the request of the consumer, then it's the consumer making the call. With the DISH offering, the subscriber is still the one pushing the button and asking the DVR to record the shows. Is it really that different that it takes one button rather than punching in a few shows? That would be extraordinary -- but these filings are full of such extraordinary claims.

Where the filings go really off the wall is in basically saying that skipping commercials is infringement. They do this in the sections on "inducement," wherein they suggest that, even if DISH doesn't directly infringe, it is is inducing infringement by offering the auto commercial skip feature to users. From the CBS filing:

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

But this makes no sense. Recording the show for later viewing is already deemed legal. So the only difference here is the intent of the user to watch later to skip commercials. Thus, CBS seems to be saying that merely wanting to avoid commercials is, itself, direct copyright infringement. And, given that Auto Hop doesn't work until the day after the shows air, does that mean that it's legal to record the shows if you intend to watch them the same day... but the second your intention is to watch them later, it's copyright infringement? That makes no sense and has absolutely no basis in the law. And, uh, what happens if you record it with the intent to watch the next day and skip commercials... but then watch it the same day with the commercials? The allegation above says merely recording the shows with intent to skip commercials is infringement, even if you don't actually skip the commercials! That makes no sense.

Fox's filing makes similar claims, insisting that DISH is inducing infringement because it "took active steps to encourage its subscribers to use Primetime Anytime to infringe FOX's copyrights." But that's flat out malarkey. It's legal for users to time shift shows. That's established. Yet, these filings seem to want to totally ignore that, and then assume that a user watching a DVR'd s how is automatically infringing on copyright because they might skip commercials.

The argument makes absolutely no sense at all. Effectively, the networks are trying to claim inducement to infringe... but do not (and, indeed, can not) show what or who is actually infringing. Time shifting is legal. Not watching commercials is legal. So, er, where's the copyright infringement, unless you completely throw out the Betamax ruling?

The filings also go down the path of explaining how this disrupts their business model. They honestly seem to be arguing for what some people have amusingly referred to as "felony interference with a business model." They list out all the different ways they get companies and users to pay multiple times for the same content, and use that to suggest this must be illegal, even though DISH has a retransmission license and all the individual parts are legal. I honestly don't understand this argument -- they're just claiming that because they don't like how end users engage with otherwise legal content, it must be illegal. Fox even uses this to claim that DISH's offering is not "enhancing consumer choice." Apparently, in the minds of TV network lawyers, what counts as "consumer choice" is limited to what the TV networks want to count as consumer choice... and any other choices are no choices at all. Or something.

There are a few slight differences in the lawsuits. For example, Fox brings up the fact that DISH also offers the Slingbox to allow users to not just time-shift but also place shift, though fails to explain why that's an issue at all. Fox also includes a breach of contract claim, which also may be difficult to support if all of the other actions prove to be legal.

DISH's declaratory filing gives you a pretty clear sense of that company's argument, pointing out that this is a nice feature that consumers want, that this kind of technology is already widely in use, and that it's not clear how any of this is infringement.

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH also points out that skipping commercials is not illegal:

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

I can't see how the networks' argument can stand very much legal scrutiny at all -- but stranger things have happened when copyright cases hit the court. Still, the arguments here are so bizarre, and so unsupportable, you have to believe a judge will reject them quickly.

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TV Network Execs Contemplate Going To Court To Say Skipping Commercials Is Illegal

Mike Masnick — Tue, 15 May 2012 12:56:00 PDT

Late last week Charlie Ergen and the folks at Dish Networks presented the TV networks with a bit of a conundrum. You see, the company decided to actually give consumers what they want: setting up a special DVR system, called Auto Hop, that would let viewers not just automatically DVR the entire primetime lineup of all the major networks with the single push of a button -- but also to automatically skip commercials when watching the playback, as long as it wasn't the same day the shows aired. This is something that consumers clearly want -- which Dish execs were pretty upfront about:

“Viewers love to skip commercials,” Vivek Khemka, vice president of DISH Product Management, said in a statement

But, of course, who is a consumer in this market gets complicated pretty fast. The TV networks, of course, make a fair bit of money from advertising on these shows, and they're not happy about any idea that means people might skip commercials. Those of you who have been around for a bit may recall a few relevant stories. First, there was Jamie Kellner, the former chair of Turner Broadcast Systems, who once claimed that walking away from your TV while commercials aired was a form of theft. Then, of course, there was the famous ReplayTV case. If you don't recall, ReplayTV was an early competitor to TiVo, and in many regards a better product. Among its features, it took an already considered legal feature from VCRs called "commercial skip" and added it to DVRs. The industry sued, in large part because of this feature, which they considered to be breaking the law.

Of course, the expense of the lawsuit resulted in Replay's parent company SonicBlue declaring bankruptcy. It then sold off the remains to D&M, who tried relaunching a version of the product without all the cool features people liked, and it went nowhere. Eventually, DirecTV bought the remnants. However, the basic lawsuit died out with the bankruptcy. A bunch of ReplayTV users, led by Craig Newmark from Craigslist, actually tried to continue the case on their own, to have those features declared legal, but after the networks promised not to sue those users for using the features, the judge tossed the case.

Left unresolved, of course, is whether or not features like commercial skip are actually legal.

As some are pointing out, the TV networks may have missed a golden opportunity by not continuing the fight against Craig and the other users, since they wouldn't be able to afford the bigtime lawyers that Ergen and Dish can easily toss out here. So the TV networks basically have to make the decision if this is really a battle worth fighting.

It does seem clear that the anti-consumer folks who run the TV networks would certainly like to slap Dish around for this move:

"I think this is an attack on our eco-system," said NBC Broadcasting chairman Ted Harbert on a conference call Monday. "I'm not for it."

Isn't it just like NBC to think that a tool that the public actually finds useful is an "attack" on their ecosystem? At some point, in the way, way distant future, perhaps we'll live in an age where companies like NBC Universal recognize that, when things are more efficient and easier for consumers, it is a good thing, rather than something to freak out about and declare evil?

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The NFL Issues Takedown For Chrysler Super Bowl Commercial

Mike Masnick — Mon, 6 Feb 2012 13:21:26 PST

Ah, the bogus takedown. The latest is that apparently the NFL somehow and for some reason took down Chrysler's Clint Eastwood Super Bowl commercial from YouTube. Pretty much every advertiser put up their commercials on YouTube, and it's unclear why or how the NFL might claim any sort of copyright on any of those ads. But, for some time that's exactly what happened, making Chrysler's own website promoting the ad look pretty silly: Considering how much Chrysler had to pay for that ad, you have to wonder if they now feel that the NFL owes them something for making it impossible for people to watch for a while...

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Crazy Coincidence, Plagiarism, Or An Obvious Idea For An Electric Car Ad?

Mike Masnick — Mon, 19 Sep 2011 15:00:23 PDT

David points us to this fantastic post by Ken Segall, entitled Creativity has many fathers, and analyzing the story of two car commercials that seem quite similar. The first, for the Nissan LEAF, is below: The second is from Renault, for the Z.E.: The two ads debuted within days of each other. You might note some similarities. Or, actually, a ton of similarities. My first response was to remember that Nissan and Renault are connected at the hip in a slightly odd non-merger alliance where each company owns a substantial stake in the other. However, the two companies are still mostly separate, and their marketing is apparently entirely separate. More specifically, the two ads were developed by two different ad agencies -- and apparently neither is particularly happy about this, with each suggesting the other "plagiarized" the ad. However, neither has been too vocal about this publicly, and no legal action has been threatened.

Segall digs up the possible reason why, in the form of one more ad... for the Mitsubishi i-Miev. This commercial came out way before the other two: Yeah, it's kind of tough to claim someone else plagiarized you, when your ad looks like a blatant copy of yet someone else's...

Perhaps the reality is that this idea was just so obvious that three different ad agencies came up with it. It's not hard to see how a brainstorming session might come up with exactly this concept pretty easily. Or perhaps there really was some copying. But, in the end, does it really matter? As Segall notes about all three ads, "Wow, what a fantastic concept."

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ABC Sports Threatens To Hit Tim Pawlenty With Copyright Infringement Claim Over Miracle On Ice Footage

Mike Masnick — Tue, 26 Jul 2011 19:09:00 PDT

Back in April, we noted that Canadian Prime Minister Stephen Harper had created a commercial that many people noted looked like a copy of a campaign ad for Tim Palwenty, just substituting Canadian scenery for American scenery. In that post, we also noted that Harper had apparently failed to properly license the hockey footage he used as a part of the commercial. Well, now it seems that Pawlenty is copying Harper... in choosing not to license hockey footage. Pickle Monger alerts us to the news that ABC Sports says it's going to send Pawlenty a cease & desist for using footage from the famous "Miracle on Ice" 1980 Olympics match in which the underdog Americans beat the Soviets. ABC says that the footage was not licensed -- especially the use of announcer Al Michaels -- and that they were considering sending a cease & desist. Of course, I'd still argue that this kind of usage should count as fair use, but for the most part, uses like this are not seen as fair use.

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What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials

Mike Masnick — Mon, 18 Jul 2011 11:26:31 PDT

Copyright law is supposed to have an idea/expression dichotomy, in which the copyright only covers the specific expression, and not the idea. We're often told this when we worry about the expansion of copyright law being used to block out ideas. And yet, as we've explained in the past, it's not clear there's any real idea/expression dichotomy when it comes to copyright. That's because, if a judge doesn't like something, he or she will often come up with some convoluted explanation for how the "expression" covers the basic idea.

And, of course, once people begin to realize that there's no real idea/expression dichotomy, lawsuits begin to show up pushing the boundaries even further. Take for example, this lawsuit, in which a novelty gift firm called Cellrderm has sued Microsoft and its ad agency, CP&B, for "copying" some of its commercials. You can see the four commercial below, showing the (terribly produced) Cellrderm commercials, followed by the supposedly "infringing" Microsoft version: Cellerdrm, Bedroom ad:

Microsoft, Bedroom ad:

Cellerdrm, Urinal ad:

Microsoft, Urinal ad:
If you watch the ads, they may have (sorta, kinda) similar ideas, but the expression is way, way different in both cases. And yet... Cellrderm is trying to claim that it actually copies the expression:

The Microsoft Commercials copy both the sequence of events and the character interplay found in the Cellrderm Commercials.... The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures, character appearance, camera angles, and other visual elements from the Cellrderm Commercials.

Yes, you read that right. They're complaining that the clothing and gestures in these commercials was copyrightable. One hopes that a judge will tell Cellrderm to stick to gag gifts, and get out of the gag lawsuit business.

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Smartphones Make People Ignore Commercials Way More Than DVRs

Mike Masnick — Fri, 27 May 2011 01:01:00 PDT

For years, the TV industry has been at war with the DVR, because of their fear that people would just use DVRs to skip over commercials. And, of course, there were the requisite reports about how DVRs were causing massive totally made up "losses." Except, the reality turned out to be completely different. Various studies found that DVRs changed watching habits in that they actually drove more TV watching, and actually increased retention of what was in the commercials viewers did see. Of course, the "fear" from TV folks was totally misplaced -- and they were going after the symptom, not the actual heart of the issue: which is that people don't want to watch TV commercials because the TV commercials suck.

TV commercials worked because people were a captive audience and had nowhere else to place their attention. Yet, when they have other options for their attention, they tend to take them. In fact, the latest study (sent over by Eric Goldman) shows that DVRs were never really a huge threat in terms of taking people's attention away from ads. Instead, it seems the real threat is that everyone has a smartphone now, and when commercials come on, they turn their attention to their smartphone, check their social network/email/etc.:

It was found that simply turning one's head to ignore video ads had far greater impact than DVR fast-forwarding is assumed to have. Magna Global estimates that 35% of U.S. households have DVRs and 10% of their total TV consumption is time shifted, within which 65% of ads are fast-forwarded, meaning 35% x 10% x 65% = 2% of total TV ad impressions are avoided through fast-forwarding. Our study found that 63% of TV impressions were avoided simply by not paying attention to the screen.

To be honest, that 2% number seems crazy low to me, and I wonder how accurate it really is. However, even if it's noticeably higher, it appears that smartphones and other distractions are definitely taking people's attention away. In fact, even when people do fast-forward ads (as we noted in that study years ago) they still seem to see the ads:

When participants did use the DVR to fast-forward TV ads, nearly half of them paid full attention to the screen during that process. Fast-forwarded ads had 12% more attention levels than non-fast-forwarded ads.

Though, this study contradicts the other one from a few years ago concerning retention: saying people don't retain quite as much from fast-forwarded ads.

Of course, you can debate the statistics all you want, the basics are pretty obvious: if your method of advertising relies on a captive audience, and that audience is no longer captive, then you're going to have problems. TV execs were wrong to worry about DVRs, because they didn't really take people's attention away from the TV, and had the other side effect of making people watch more TV. However, there may actually be an issue with things like smartphones, because if people don't like what's on the TV (i.e., the ads suck) they now have a much more entertaining option right in their pocket. The captive audience is dead. Of course, that doesn't mean that there's nothing the TV guys can do. They could start making the ads more compelling such that people actually want to watch them, but I guess that probably sounds like "work."

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Why Would The NFL Force Toyota To Pull An Ad About Protecting Players From Concussions?

Mike Masnick — Mon, 24 Jan 2011 10:01:33 PST

Copycense points us to the news that the NFL apparently freaked out and pressured Toyota to edit a TV ad it was running during football games -- a move many people noted was "unusual." Apparently, the ad discusses how Toyota is using some of their research and technology in car safety for other fields -- such as helping to prevent concussions for football players. You can see the ad here, with the "offending" part at around 17 seconds: I'm trying to figure out what the NFL was upset about. Here's a story of how efforts are being made to make the game even safer. That seems like a good thing -- the kind of thing that the NFL should be celebrating. Does it think that, if it hides the image of helmets colliding, people will magically think people don't get hurt playing football? And, of course, in pressuring Toyota to remove this commercial, all its done is draw a lot more attention to it. Toyota's response was apparently not to remove the ad entirely, but to just edit out that helmet-to-helmet crash. Well, phew, now football feels safe again, right?

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Celebrity Endorsement Deals Almost Always A Bad Deal For Brands

Mike Masnick — Mon, 17 Jan 2011 22:07:00 PST

A new research report claims that celebrity endorsements in the form of TV commercials are almost always a bad deal for the brand. The study covered every nationally televised ad in the first 11 months of 2010 -- and saw that ones with celebrities underperformed other types of ads, often drastically. On average, celebrity ads had a negative "lift," while non-celebrity ads did much better. Of course, you can hide a lot of details in aggregate numbers, and part of it might just be that the celebrity ads were done poorly. It's possible that a good celebrity ad can still be effective, but what seems clear is that "just add a celebrity" does not help at all. The study's authors posit that consumers don't care as much about celebrity endorsements in these social networking days:

Today's consumer is a totally different animal than the consumer of even five years ago, meaning that what was effective and influential five years ago is not necessarily so today, as today's consumer is more likely to be influenced by someone in their social network than a weak celebrity connection. Today's consumer is informed, time-compressed, and difficult to impress, and they are only influenced by ads that are relevant and provide information. They don't want to have products pushed at them, even from a celebrity. In fact, the data show that relevance and information attributes were key missing ingredients from most celebrity ads.

I'm not sure I completely buy that. After all, celebrities are some of the most popular people to follow or friend on social networks. I think it may be more a case of poor utilization of celebrities, where the endorsements are seen (reasonably and accurately) as being fake, rather than sincere. I think when a celebrity really does like a product and then also agrees to do an endorsement, those can be effective. But a pure "let's put this celebrity with this product" sort of thing is quickly dismissed as inauthentic.

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Senate Passes Bill To Try To Quiet TV Commercials

Mike Masnick — Fri, 1 Oct 2010 16:33:24 PDT

While it's been talked about for ages, the Senate has now passed a bill that attempts to force TV commercials to be at a similar volume to the shows that they're paired with. As many people have complained over the years, it often feels that the commercials are set to a much higher volume to gain attention. Of course, in reality, this tends to annoy more than anything else. The so-called CALM Act (Commercial Advertisement Loudness Mitigation -- we really need to stop cutesy naming of bills) gives the FCC the mandate to make sure commercials are at a reasonable volume. The House has passed a similar bill, and once the two are aligned, it's likely this will become law.

However, as John Abell points out at the Wired link above, this probably won't matter too much. Fewer and fewer people seem to actually watch TV commercials these days, and more TV viewing is shifting to the internet (where these rules won't apply). And, while I agree that louder commercials can be annoying, is this really the sort of thing that needs to involve the federal government?

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Beer Pong Players Upset Their Beer Commercial Has Gone Viral... Sue Over Inclusion In World's Funniest Commercials

Mike Masnick — Fri, 16 Jul 2010 09:33:58 PDT

Oh boy! Where to start on this one. Normally, when you have a commercial on TV, you would like it to go viral so more people see it. We've certainly seen some companies use this to their advantage. But what if the actors in those commercials don't want it to go viral? What if they happen to be (or hope to be) upstanding professionals, and the commercial involves them participating in frat-boyish fun, such as playing beer pong, which they hoped would only be seen in a tiny country on the other side of the globe? Well, that seems to be exactly what happened to a pair of unfortunate (but quite talented) beer pong players, who have now sued the producers of "The World's Funniest Commercials," TBS and Carlsberg beer.

You see, Scott Tipton and Christopher Kolb are really good at beer pong. So good, that Carlsberg hired them (and a few others) to perform in this commercial: However, one of the guys was in law school at the time, and didn't want his future career prospects diminished by his beer pong prowess. Why? Because, as the complaint explains, "the plaintiffs' difficult trick-shots indicate substantial experience playing Beer-Pong, i.e., substantial experience drinking substantial quantities of beer -- a less than desirable image...." (emphasis in the original). He also did not want his (apparently beer pong ignorant) parents and grandparents to know of his amazing skills at the "most remarkable trick-shot, ricocheting the ping-pong ball four times off of uneven, angled surfaces, and into the beer cup with back-spin, after which both Tipton and Kolb celebrate exuberantly" (emphasis in the original). Because of this, he made sure that the agreement had geographic restrictions, such that it only showed in Denmark. The other guy was an actor, who claims he agreed to a "below standard" rate, knowing that the commercial was only for the Danish market.

But, of course, the video got some attention, and the producers of The World's Funniest Commercials decided to include it in their show (with Carlsberg's blessing) which aired in the US on TBS. Even worse, the producers used a clip from the commercial in their own commercial for the show. The guys then try to make the case that the TBS promo was the key reason why people watched the show, and their clip in the promo was the key part, and thus, they deserve 50% of all of TBS's advertising from the show. Good luck with that.

The lawsuit itself involves California's popular publicity rights law (that we've been talking about a lot lately) as well as a variety of other claims. However, in an age when we're already pointing out that geographic restrictions are obsolete, does it seem even remotely reasonable that the commercial would never be seen outside of Denmark?

And yes, the legal complaint makes sure to explain just what beer pong is, in case the court is unfamiliar with the... um... sport:

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Old Spice Man Is Horsing Around On Social Media

Dennis Yang — Wed, 14 Jul 2010 06:17:05 PDT

When we last saw the Old Spice man, he was on a horse, and demonstrated how a brilliantly clever ad could attract its own viewers, instead of trying to divert attention with an annoying or distracting ad. In the five months since the ad first aired, the ad has collected nearly 13 million views on YouTube and was also awarded the Grand Prix for film at this year's Cannes Lions International Advertising Festival.

The Old Spice man is back, and once again, showing that he truly gets how to engage with his audience. Starting Monday, he began posting video responses to various Twitter, Facebook, and other social media commentary, oftentimes resulting in hilarity. Most of the over one hundred responses have been posted within a few hours of a tweet or comment, which is a blistering pace for an ad campaign with a traditional CPG company. My favorites are his response to Alyssa Milano and the one where Twitter user jsbeals asks Old Spice man to propose to his girlfriend for him:

Ad agency Wieden + Kennedy hit it out of the park again with this ad -- they were able to craft an infectiously viral ad campaign, while at the same time incorporating the brand as a key part of the message. After all, he's not "I'm on a horse" man, he's the Old Spice man. That said, while such a campaign may definitely drive awareness, awareness may not necessarily result in sales: according to SymphonyIRI, sales of Old Spice Red Zone (the product featured in the ad) actually dropped 7 percent.

Then again, surely jsbeals will be buying a few cases of Red Zone in appreciation of the help from Old Spice man (his girlfriend accepted the proposal).

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Advertising Is Content, Content Is Advertising, I'm On A Horse

Dennis Yang — Mon, 22 Feb 2010 15:08:40 PST

For anyone watching the Olympics lately (despite the efforts of NBC -- really, NBC? Why air one of the most anticipated events of the games on MSNBC?! ), you may have seen this engaging Old Spice commercial where a man is magically transported from his bathroom, to a boat, and finally to a horse. The commercial was actually interesting enough for me to stop my TiVo and replay it twice when I first saw it.

The commercial itself has garnered over 2.5 million views on YouTube -- and that's just for the "official" version, there are many other accounts that have uploaded the commercial, which Old Spice has wisely not asked to be taken down (yet?). This serves as a fantastic reminder of a point that we've illustrated here before: advertising is content, and content is advertising. When you make a fantastic commercial like Old Spice did, not only do people actually seek out your commercial to see it, but they discuss it as well. I know personally that I have had no less than 10 discussions amongst my friends about the commercial. In fact, Leo Laporte's video, where he interviews the creators of the commercial about how it was done, has gotten over 100k views.

The big question is, however, how effective this ad was for actually increasing the sales of Old Spice.

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Pepsi Drops Super Bowl Ads... Goes With Online Promotions Instead

Mike Masnick — Thu, 24 Dec 2009 05:30:00 PST

Earlier this year, I randomly ended up in a fascinating conversation with a marketing guy from Pepsi, who was telling me about some of the online marketing efforts the company ran during the 2009 Super Bowl, saying that they got the same "response" as the multi-million dollar Super Bowl commercials got, but only cost in the tens of thousands of dollars, rather than millions. Based on that I have to admit I'm not all that surprised to find out (via The Infamous Joe) that Pepsi has decided not to buy any Super Bowl ads for the 2010 game, but will be investing a ton in some online promotions. This is after 23 straight years of Super Bowl ads by Pepsi, costing the company hundreds of millions of dollars. I'm sure that the Super Bowl will be just fine (it claims it's sold out 90% of its ads already, though the prices did drop a bit this year, apparently), but it does suggest that some may be realizing that there are better ways to get your message out than spending a ridiculous sum for a single commercial spot.

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There's An Apology For That: AT&T Dismisses Its Pointless Lawsuit Against Verizon Over Ads

Mike Masnick — Wed, 2 Dec 2009 16:40:32 PST

We still don't understand why AT&T called so much more attention to Verizon's ads that highlight AT&T's weak 3G network coverage by suing over the ads. Things were made worse when a judge refused to block the ads from airing. Perhaps finally realizing that all this was doing was creating free advertising for Verizon -- and more attention on the quality of AT&T's network -- the company has decided to drop the lawsuit. Apparently, instead, it's going to focus on its own misleading ad campaign.

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Content Is Advertising: Free Local Commercials, Sponsored By Another Company

Mike Masnick — Thu, 5 Nov 2009 11:33:43 PST

Via Adam Savage, I heard about a fun project that highlights the advertising is content, content is advertising concept in multiple ways. It's a site called ILoveLocalCommercials.com, which features two filmmakers going around the country making (free -- and awesome) TV commercials for local businesses that are nominated on the site. As mentioned, the commercials are really quite impressive, such as the "brutally honest" commercial for Cullman Liquidation ("get yourself a home, or don't, I don't care") or for Ray's Midbell Music that involves a rap about how being in the school band is cool:

The commercials are really entertaining in their own way, and have garnered hundreds of thousands of views -- again, demonstrating how good advertising is content. The guys making the videos also put up a short "behind the scenes" version of each video as well, to explain the backstory a bit more. The backstory on Cullman Liquidation is pretty entertaining as well.

But why are these guys doing this? Well, the whole thing is actually part of a promotion from another company, MicroBilt, that's trying to promote its own line of small business services. So it's paying for the whole thing -- showing how content is advertising. None of the videos are actually about MicroBilt, but in sponsoring the entire site and the whole process, it's helping to get its name out there in a fun (non-intrusive, non-annoying, non-sneaky) manner. It's not about product placement or trying to "sneak" a brand into something. Everything's totally upfront. But it's a fun project, with highly entertaining content that shows both how advertising is content and how content is advertising.

Oh yeah, and it appears that Cullman Liquidation has also picked up on the whole "looooooooooots of t-shirts" concept. On the Cullman Liquidation website, the company is selling t-shirts based on the commercial...

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Once Again: DVRs Not Killing TV, But Helping It

Mike Masnick — Mon, 2 Nov 2009 11:55:00 PST

It's becoming almost comical how often this happens: a new technology comes along for consuming/watching/listening/distributing some sort of entertainment content, and the industry freaks out. The technology is going to destroy the industry, and laws must be put in place, royalties must be paid, technology must be crippled, etc. And yet... the impending doomsday scenario never shows up. The player piano did not kill the sheet music market. The gramophone did not kill live concerts. The VCR did not kill the movie industry. And, here we are, with TV folks finally realizing that the DVR is not killing TV, but actually helping it. Basically, lots of people still watch ads, even if they're watching a time-delayed program. What's funny is that throughout the article you have execs insisting that this was a shock to everyone and no one could have predicted it. Except, of course, we wrote about the same basic thing three and a half years ago. But no one listens to us.

The article doesn't even mention the biggest benefit to DVRs -- even beyond the fact that people watching them still watch commercials: that it allows people to become more connected to certain shows, since they're less likely to ever miss an episode. That makes them more likely to watch those shows regularly (with or without the commercials). If someone can't keep up otherwise, they'll just let the show go entirely.

The other amusing finding in the article is that NBC's attempt to "DVR-proof" itself by moving Jay Leno to 10pm (on the theory that more people would watch it live when they couldn't fast forward through the ads) has totally backfired. That's because it also means that if people miss the show, they don't go back and watch it days later (who wants to watch stale jokes?) -- so fewer ads get watched in the long run (compared to a show that would be recorded and watched later). Oops. In the meantime, can we go back to those TV execs who were threatening to sue TiVo just a few years ago, and ask for an apology for wasting everyone's time?

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Mattel Now Using Song In Commercial... Which It Once Sued Over Copyright Infringement

Mike Masnick — Fri, 23 Oct 2009 11:33:23 PDT

Back in 1997, the band Aqua released a song called "Barbie Girl," that was actually somewhat critical of "Barbie doll" culture. Mattel, famous for its rather aggressive intellectual property stance, wasted little time in suing the band, claiming the song infringed on the company's rights. In 2002, everyone's favorite appeals court judge (seriously, the guy never fails to entertain) Alex Kozinski told Mattel too bad, parody songs are a part of what you get for being a cultural icon -- and included the classic line: "The parties are advised to chill."

It took seven years since that decision, but apparently Mattel had decided to heed Judge Kozinski's suggestion. Reader Sallo alerts us to the news that Mattel has actually licensed the song for a commercial -- though, they "adjusted" some of the lyrics to make it a little more pro-Barbie, rather than mocking-Barbie. Still, that's quite a jump: from suing the band for infringement to actually licensing and using the song in just a few years.

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Nigeria Demands Apology From Sony For Mentioning Nigerian Fraud In A Commercial?

Mike Masnick — Mon, 21 Sep 2009 12:18:00 PDT

I have to admit that this story seems so bizarre that I'm not quite sure I believe it. A bunch of folks have been submitting the news that the Nigerian government is apparently so upset by a Sony Playstation commercial that it's demanding an apology from Sony for allegedly "portraying Nigeria as a home of fraud where its citizens hardly do genuine business." Must be quite a commercial right? The only problem is that the commercial does no such thing: It just mentions, in passing, as a part of the joke of the commercial that "You can't believe everything you read on the Internet. Otherwise I'd be a Nigerian millionaire by now." I don't quite see how that implies that Nigerian citizens hardly do genuine business. It just suggests that there are Nigerian scammers out there -- which is hardly something the government can credibly deny. Hell, there are popular songs in Nigeria all about fleecing dumb Americans in online scams. Honestly, the whole complaint from the Nigerian gov't seems so odd, that it feels like part of Sony's marketing campaign...

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John McCain Settles Jackson Browne Lawsuit Over Song Use

Mike Masnick — Tue, 21 Jul 2009 21:21:00 PDT

Last year, during the presidential campaign, singer Jackson Browne sued John McCain for using one of his songs in an ad. There were a few questionable aspects to the lawsuit. First, the ad wasn't actually from the McCain campaign. There were also some questions about whether or not this was fair use since it was ostensibly used for "political speech," but so far the court didn't seem too amenable to that. And so, McCain has settled the lawsuit and publicly apologized to Browne, who claims this wasn't a partisan issue (yeah, right), but about the rights of musicians. This actually would have been an interesting fair use battle, so it's a little disappointing that it's ended, but the argument over "musicians' rights" strikes me as a bit silly, too. McCain could have easily used the same song live at a campaign stop, assuming the venue paid a compulsory performance license. And someone in the McCain camp could have legally covered the song, paying the correct compulsory license as well -- and then potentially used that version in a commercial. Basically, all this really did was highlight how convoluted and often arbitrary copyright laws are in many cases. But, rather than learning a useful lesson on the mess that is today's copyright law, it looks like McCain has taken the easy way out.

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15 Years Of Anti-Piracy Commercials...

Mike Masnick — Thu, 9 Apr 2009 06:33:00 PDT

John was the first of a few to send in a collection of 15 years worth of "anti-piracy commercials" that run at the beginning of films, put in place by the movie industry, who has only just realized that perhaps they should offer up a more positive message to customers who just paid good money to watch a movie, rather than accusing them all of being criminals. Most of these commercials are so over the top as to be hilarious. "The pirates are out to get you. Don't let them brand you with their mark. Piracy funds organized crime... piracy funds terrorism... and will destroy... your future enjoyment." It makes you wonder if the folks making these commercials actually thought they'd be effective.

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Kraft Gets Into The Music Business

Mike Masnick — Thu, 12 Mar 2009 03:01:31 PDT

We're seeing more and more consumer brands getting involved in the music business. In parts of Asia this sort of thing has become a lot more common, but we're seeing it more and more in the west as well, such as when Tag body spray started its own record label, or when Groove Armada signed with Bacardi, rather than a record label. Now, Raimund Ostrowski points us to this story about Kraft Canada, which, in an attempt to revive the Triscuits brand, had a musician in Toronto write a 30-second song for a commercial. The commission was then expanded into a full 3 minute song which is getting airplay on the radio and can even be bought at iTunes. While (understandably!) some may not like this sort of commercialization of music, it does show yet again the many other business models that can show up to help pay for the creation of music.

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