Duets Blog : Creativity and the Law: DuetsBlog

by Jodi Petrich, Senior Director at Fast Horse

More brands are turning to social media to engage consumers. Social media are a great tool for launching new products or services, sharing promotional offers, hosting contests or simply connecting with loyal fans.

One big challenge is that the approval process in many companies doesn’t lend itself well to social media. For example, consider the process involved in the development of a print or TV ad. A strategy is created and a creative brief is written; creative teams develop concepts; concepts and copy are routed to clients and legal; clients and legal provide input; and the concepts are revised and approved.

It’s a process that (perhaps) works when creating an ad, but it lessens the opportunity for impact when applied to social media. The intent of social media is to be interactive, to share news in a timely fashion, to be authentic and relevant, and to allow for instantaneous or even spontaneous connectivity. Processes of the past simply aren’t nimble enough to allow companies to take full advantage of all that social media offers.

But what is the right process for new media? Take this tale of two brands on Facebook.

• Brand A is mired in heavy process. Anyone who wishes to post content on the page must fill out and submit a request form a minimum of five days in advance of when the post will run. There are only five posts allowed per day, and only one per region, which can post on select days. The brand has a great following, but users are the recipients of very calculated messages.
• Brand B has no process. In turn, many of its individual properties have created their own Facebook pages and post content freely. There isn’t a consistent brand presence, there are no standards in place to guide postings, and postings are often completely irrelevant to the business (actual Tweet example from a franchisee: “I got to work today and have on two different shoes. LOL!”).

On the one end, the five-day process ensures that messages are appropriate and approved by everyone, but it doesn’t allow the opportunity to react or respond to news or announcements that might help the brand be more relevant.

On the other end, the lack of process allows freedom and flexibility but creates the risk of ultimately hurting the brand’s reputation.

Social media can be a powerful tool for brands when used appropriately and timely. Doing so requires a level of flexibility and the ability to let go of processes of the past. Should brands have a social media strategy? Absolutely. Should there be a process in place to ensure messages and content are brand appropriate? 100% yes. Should the social media content that brands produce be held to the same standards as traditional marketing? Even more so. Should every Tweet and Facebook post be routed for approval? That’s where things get sticky.

Every brand needs to develop its own comfort level, and the keys are trust and education. You trust your employees to represent your brand everyday, why shouldn’t you when it comes to social media? Consider taking the time to educate your team on the essential brand messages and character you wish to convey. Draft up some key brand attributes and circulate them widely. Let people know how you want your company or brand to be perceived. Then trust them to deliver the messages, just as they do every day in the off-line world.

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by Mark Prus of NameFlash^SM

Some of my name development clients are fans of long, keyword-rich names. Obviously the appeal of a search engine spotting your website is driving this approach.

Some of my naming clients are fans of short names that can be easily shared on Twitter.

Which approach is better?

I will confess I am a fan of short, memorable names. Steve Baird would agree. As Steve so eloquently puts it, “we live in a sound bite world.”

But I strongly believe that picking a name because it would be more attractive to search engines or because it is short enough to Tweet is a huge mistake. Any time you allow tactics to drive your strategy, you are heading down the road to ruin.

A far better approach is to hone your brand’s strategy and test it with consumers until you find the positioning that is going to make all the difference in your business, then develop a name. David Ogilvy once said "The results of your campaign depend less on how we write your advertising than on how your product is positioned." The same is true for your name. Spend time developing a positioning that rings the bell with consumers and then go find the perfect name that brings that positioning to life.

Sound like a difficult thing to do? Not really. I know I am biased by my 25+ years of experience in building great consumer brands, but this task is not difficult. Time consuming? Yes. At times painful? Yes. Expensive? Could be. But in the end, the process of honing the brand positioning and using that as a basis for name development will pay dividends for years to come.

If the name you choose ends up short enough to Twitter, then you may wish to include that tactic in your arsenal. If your name includes relevant keywords, so much the better! But please, don’t pick names because they work better with tactic A or Tactic B!

Your thoughts?

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The Super Bowl is much more than a football game to determine a champion; it is a cultural phenomenon. One of the most important elements of Super Bowl Sunday isn’t the on the field action; it is the commercials on television during the breaks in the action. For companies that want to advertise during the game, it is quite costly to partake in this action. A 30 second spot during Super Bowl XLIV will cost $2.5-2.8 million. That figure only includes paying the television network for the time. It doesn’t include costs to produce the ad. The final cost for a 30 second Super Bowl ad could easily run $4 million +. With this in mind, there’s one glaring question. Is Super Bowl advertising worth the cost?

The answer to this question isn’t a simple and definitive yes or no. Advertising during the Super Bowl can raise brand awareness. It also can be used simply to remind a target market of the importance of a brand within a product category. Using an ad in this manner would reinforce existing brand beliefs and hopefully induce a desire to purchase. However, a Super Bowl advertisement can affect a company negatively if not executed correctly. The effectiveness of Super Bowl advertising depends on the perspective of the advertiser, a brand’s strategic objectives and other marketing mix elements.

One of the appealing elements of advertising during the Super Bowl is the fact that it consistently draws a significant audience. More than 90 million people in the United States have watched each of the last 4 Super Bowls. Every Super Bowl since Super Bowl XXVII in January 1993 has drawn at least 80 million viewers. This is noteworthy because television audiences have become far more fragmented over time. The proliferation of television networks with cable/satellite TV, video entertainment options such as video games and DVDs and the vast array of Internet content have been the primary causes of audience fragmentation. The Super Bowl has been one of the few television programs that has been relatively unscathed by audience fragmentation. As a result, the network broadcasting the game (CBS this year) can charge premium pricing for advertising.

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If you travel by air at all, I suspect that Southwest Airlines' "Bags Fly Free" campaign resonates a bit:

This is but one of many examples of Southwest Airlines' marketing and business savvy.  By all appearances, this is a company that exudes a love for its business, which necessarily requires a love for its customers.  It meets its customers where they are:  blogging, on YouTube, on Facebook, on Twitter, on TV, in print . . . you get the idea.  They are well known for using humor both in advertising and in providing services.  It is a company that is meeting its mission. 

Here's to more fun in 2010!

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Social media has become the must-have tool for every marketer and this tool is gaining popularity with every industry. For example, the insurance industry is typically known for more low-key advertising and marketing channels. However, companies like HCC Medical Services, LLC and Blue Cross Blue Shield have jumped on the social media band wagon. HCC Medical Services has redesigned its Web site to include a social media tool and a blog, and Blue Cross Blue Shield actively appears on Twitter and Facebook.

Social media allows nontraditional marketing innovators to get in front of an entirely new set of customers as well as a younger demographic. It can be difficult to measure the results of social media, but the fact that companies can attract followers on Twitter or fans on Facebook is impressive. On the other hand, sometimes the impact of social media is more clear. Some followers or fans will comment that the social media was a factor in their decision to purchase services or goods from the company. Additionally, some posts will comment on what the company is doing well and what it can improve.

However, to succeed with social media, companies need to have a plan for their social media tool. It is not enough to just be visible. Companies need to actively engage their followers and fans rather than use social media as a means to issue press releases.

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This post is not about candy bars or thoughts about whether the cross-section of a candy bar may function as a trademark, for that, see here.

This brief post is about a 100 Grand Super Size thank you to all of our readers, those who submit comments, those who offer suggestions, those who follow us on Twitter, our guest bloggers, and especially, all of you who spread the word about DuetsBlog in so many ways.

Our inaugural post on DuetsBlog was a short nine months ago, on March 5, 2009, when we introduced you to a fellow named Dr. No, and we noted his or her fascination with The Parade of Horribles.

Four months later, we celebrated our 10,000th unique visitor on DuetsBlog, here.

It is with great thanks to you, that nine months after launch, we are here to celebrate our 100,000th unique visitor on DuetsBlog.

Any predictions on when we might reach our 1,000,000th unique visitor?

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Friendster, the pioneer of social networking, was recently acquired by the Malaysian company MOL Global Pte, which is an affiliate of MOL AccessPortal Berhad, a company that operates and develops payment systems in Asia, for $1.8 billion. I assume at this price the return on investment was pretty nice for the founders of Friendster, but the price for Friendster reveals much more. The use of social networking as a marketing tool continues to grow and so does its importance.

More and more companies are developing or using social networking Web sites to connect with their customers to create brand loyalty and otherwise connect with their customers. For example, Kodak published Social Media Tips to help any business integrate social networking into their marketing plans. Some companies have created social networking Web sites for specific products. And it’s important for companies to consider developing social networking Web sites because it has become the norm for consumers to consult some form of social media before purchasing any product or service. 

But why should a company develop its own social networking Web site? For starters, control. As the owner of the Web site, you control the content and overall image the Web site conveys to consumers. A company does not want to exercise too much control over the content because it is important to create a space where consumers are free to speak, but some control is necessary to comply with certain legal protections afforded to Web site owners like the Digital Millennium Copyright Act and the Communications Decency Act. 

Additionally, the development and maintenance of a Web site can be inexpensive. However, do net let the low price tag trick you into believing development of a Web site is simple. There are a host of legal issues that can trip up even the most sophisticated business. And because there are many companies that provide marketing automation software products and services, it is important to be aware of the legal issues facing both the software developer and end users so that the two can form the most productive relationship.

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We all would agree that “As Seen on TV” is one of the great brands of all time. The brilliant marketeers behind it recognized the extraordinary power of television – people believe as true what they see on TV.

Why that is I’m sure has been the subject of enumerable studies; after all it defines who we are as consumers and sets the stage for a marketplace where the phrase “targeted consumer” takes on real meaning. Between infomercials laden with celebrity endorsement, a tried and (sometimes) true tactic for moving people closer to their wallets coupled with compelling “just like my neighbor” testimonials, and home shopping networks with live celebrities and testimonials whose “it has to be true” quality rings true for millions of people, consumers are drawn to purchase like moths to a light.

The online world has taken this phenomenon and cranked it up a notch. The more modern version of “As Seen on TV”, its sister brand “As Seen on the Internet” – is an even more powerful lure. It is extraordinary how so many people believe that the “default” for the Internet is Truth, as if there were a mysterious group of censors and law enforcement officials who were reading everything found on the Internet to ensure that anything false or fraudulent automatically was removed. If only that were so.

Social networking has taken this propensity to believe anything electronically delivered to an even higher level. People tend to believe as true what others in their electronic neighborhoods say. This tends to be the case whatever the form of visual channel, from “expert” blogs in About.com, to the thousands of pseudo-news blogs, closed social environments like Facebook or MySpace, or in some form of IM (Include Twitter here). The stories of fraudulent promotion on Twitter already are legion. Add to this the hundreds, perhaps thousands of for-hire bloggers who will supply testimonials for a fee, and the potential for online, “As Seen on the Internet” consumer deception increases dramatically.

It was inevitable that at some point the FTC would have to step in. The Federal Trade Commission historically has taken consumer fraud seriously, but the massive amounts of online fraud, ranging from paid for false testimonials to the most severe forms of identity theft , have created a new vigor in that agency.

On December 1, 2009, new Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), with heightened requirements for bloggers to disclose affiliations with sponsors of those endorsements, go into effect.  See FTC Press Release dated October 5, 2009, here.  The text of the Guides, 16 CFR Part 235, is available, here.  Although these Guides are advisory in nature and do not expand the scope of liability under Section 5, they are intended to provide guidance as to how the FTC would apply governing law to various fact patterns.

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Professors at the University of Pennsylvania and at UC Berkeley School of Law released a study this week conclusively titled "Americans Reject Tailored Advertising," suggesting that there is high resistance among individuals to tailored advertising on the Internet.  (Press release from Penn here, NYT coverage here.)  Although I have been unable to download a copy of the study, it apparently suggests that there is a desire for legislation in this area.  From the Penn press release:

The Berkeley-Annenberg team found that 92 percent of those polled agree there should be a law that requires websites and advertising companies to delete all stored information about an individual, if requested to do so.  Sixty-three percent believe advertisers should be legally required to delete information about their internet activity immediately, whether requested or not.

Apparently, these findings are not without controversy.  In March, a company called TRUSTe, a self-proclaimed "leading internet privacy services provider," released survey results suggesting that people are increasingly comfortable with being tracked on the Internet, and that they are really more annoyed by advertising that is irrelevant to their needs and wants. 

I have not had the chance to wade through both studies, each of which is based upon its own survey of about 1,000 individuals, but it seems to me simply from reading the press releases related to each that both studies suffer from problems of bias.  In addition, I ran across a headline this week that sales of Internet advertising are outpacing sales of TV advertising in the U.K.  I understand that this statistic is not directly on point:  it is U.K. data, not U.S. data, and it does not distinguish targeted ads from non-targeted ads.  Even so, it seems to me that whatever the studies and surveys supposedly say, or are designed to convey, there seems to be a rather robust market for advertising on the Internet.

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For the last month or so I've been following the antics of Twitter as they attempt to assert rights to the word "tweet". Based on their completely inconsistent—one might even say schizophrenic approach, I feel justified in using the word "antics".

Until very recently, Twitter didn't seem to care much about what third-party apps were named. In fact, in a blog post from July 2009, founder Biz Stone said, "Regarding the use of the word Twitter in projects, we are a bit more wary although there are some exceptions here as well. After all, Twitter is the name of our service and our company so the potential for confusion is much higher. When folks ask us about naming their application with "Twitter" we generally respond by suggesting more original branding for their project. This avoids potential confusion down the line."

Note the phrasing: “suggesting more original branding”. What happens if the developers don’t take the suggestion? By allowing so many third party apps to use the name already, they’ve tacitly given permission for others to infringe on their trademark. If they then try to defend their trademark against the new filers, what can they say?

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So what is viral marketing? The simple answer is: a marketing strategy that encourages people to pass along a marketing message. Some will argue it’s a fancy word for word-of-mouth marketing. Others insist it has to take place online—through blogs, Twitter and such. But no matter how you define it, the beauty of a well thought out and executed viral marketing campaign can help make a mountain out of a molehill. Or a beloved local icon out of a fiberglass sculpture—as was the case when the Lake Creature arrived in Minneapolis.

When the Lake Creature appeared in the waters of Lake Harriet, we knew it would cause a ripple among folks in the area. But it was the strategic viral marketing campaign that turned it from a ripple to a tidal wave among greater Minneapolis residents and area visitors.   As visitors to Lake Harriet took in the creature’s beauty, their imaginations ran wild: Who brought it here? And what it was doing in the community? For the first week, the only clue was a sign at the lake with the address to a non-branded micro site where, upon logging in, residents could continue the fun by helping build the mystical creature’s lore.

That same week, the chatter on Twitter proved people were taking their conversations about the creature from the shoreline to online. “There’s a creature in Minneapolis,” they said. “Lake Harriet has its very own Nessy.” Some passed along the microsite address, others just speculated as to what the creature was doing in the Cities and why. Within minutes of posting their tweets, the powerful influencers would receive a message from the Lake Creature inviting them to follow her on Twitter and help direct people to the microsite to submit photos and stories. 

So when the Minneapolis Parks Foundation stepped forward in mid-July to announce it was behind the project and hoped the creature’s presence would help enhance the lives of residents and bring awareness to Minneapolis’ beautiful parks, most would say “mission accomplished.” In the first week alone the Lake Creature gained more than 150 followers on Twitter; nearly 7,000 people visited her site and the effort generated more than 3 million media impressions. She even has her own Facebook fan page. Some would say that’s a viral marketing fairy tale—and we won’t disagree.

—Allison Checco, Fast Horse

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The premise of this blog, Duets, suggests a certain harmony results when law and marketing play together. Is the same true for the law and public relations, a discipline that is part marketing and part business management? 

It brings to mind vintage perceptions of lawyers providing counsel as media swarm people exiting a courthouse. Classic Perry Mason, the attorney and client dismiss the reporters with the familiar, “No comment.” 

This simple statement technically says nothing but really says everything. 

With that perspective, some might think that attorneys and public relations practitioners are at odds. The legal point of view: Say as little as possible. The PR recommendation: Communicate openly and frequently with everyone in every possible way.

At the heart of public relations, it’s about building trust through action and communication. What an organization or person does and how much is or isn’t said as well as the sincerity, context and credibility of the messenger all contribute to the perception of truth and reputation.

On one level it’s simple: say what you mean and do what you say. Yet we know it’s far more challenging than that, especially today with an overwhelming number of online and offline connections. 

Today, it’s not just relationships between people, but relationships with brands and with ideas. Amazon’s Kindle has tens of thousands of followers on Twitter and even community initiatives such as www.stopthedrinktax.com have nearly 7,000 fans on Facebook. 

Heck, I have enough trouble communicating and showing my interest and concern for the people I care about without worrying about the followers of my company and its brand on Twitter! Yet, I do – in business, we have to -- take these brand relationships seriously and work to nurture trust and mutually beneficial interactions. 

It would be easy to say “no comment” or simply post nothing, yet there is an expectation and obligation to act and communicate. What did commentary by Bernie Madoff or Michael Jackson make you think? How did it impact your perceptions of them, their businesses and industries?

As we build and represent brands, there is an increasing need to protect these brands – legally via trademarks and copyright – and equally important, an increasing need to build brand trust through communication. That’s the potentially beautiful duet that can play when legal and PR counsel work in harmony to comment or not to comment as the situation dictates.

—Rose McKinney, Risdall McKinney Public Relations

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What does Twitter have in common with Kool-Aid, Mickey Mouse, and Spam? Maybe nothing, at least yet, but I predict that it will soon, unless Twitter retains some talented PR help in a hurry. Why?

The Kool-Aid, Mickey Mouse, and Spam brands all have spawned secondary or alternate and negative non-trademark meanings that have become part of the English language, meanings in each case that lack positive brand associations, to say the least. If Twitter is not careful it will find itself "following" the likes of Kool-Aid, Mickey Mouse, and Spam, and be in the similar undesirable position of tolerating language changes that distract from their brands and favorable brand messages, to be left watching others make generic use of their brand names to communicate a variety of ideas and meanings that are neither flattering nor brand building.

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Hot on the heels of Dan Kelly's prediction of the eventual fall of social networking sites, it seems that Facebook has embroiled itself in another controversy.  The upshot of the most recent story is that Facebook is essentially using its power of cyber eminent domain to sieze and use photos posted by users for advertisements unless they change their privacy settings.

For me, this raises two questions:  The first is, whether or not Facebook users might have an action under right of publicity laws.  Generally, a right of publicity claim requires the plaintiff prove that somebody (1) appropriated plaintiff’s name and likeness to their advantage, (2) without plaintiff's consent; and (3) resulting injury to the plaintiff.  Typically, these claims are limited to celebrities because non-famous people usually don't have value in their name and likeness that the misappropriation injures.  However, its not unthinkable to believe that there is a conceivable theory of injury for Facebook users to pursue these claims.  (On a side note, I'm sure Facebook's terms of use give them some level of authorization to use photos, so that would be a likely hurdle as well.)  

The second question is, does Facebook really need this revenue?  It seems like the outcry from users would be pretty predictable.  Although the public expects and accepts a certain level of encroachment by advertisement, there's a line.  If you cross that line, you risk alienating a substantial portion of your audience.  The stakes are even higher when the people you are alienating are responsible for the content on the site.  If Facebook really has to go this far, it would seem that social networking sites are doomed to fail.

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I just did a Google search of myself. Save one entry, the entire first page of results, including my website, blog, LinkedIn profile, FaceBook page and other information was content created and controlled by me. Had you done that search before I set up various social networking pages a year ago, you would have found the amusing photo of me in the early 90s with a lot of blond hair, still hosted on a website of a friend in St. Cloud.

While that photo is not exactly baring it all in Cancun, it is also not what I want to show to anyone looking to hire me. Jumping into social networking has many potential pitfalls but it gives you the opportunity to control more of the early-page search results for yourself and your company. While I agree with Dan Kelly’s earlier post (The Rise and Fall of Social Networks?) that social networking sites are “clunky, inefficient and inhospitable,” they are one of the most critical spaces to take control of our reputations and brands.

Setting up a firm page on FaceBook or a LinkedIn profile takes control of your personal or business brand. Establishing social networking policies (among my advice is never FaceBook or Twitter after even one martini) addresses the privacy and discretion gap that is a big part of inter-generational issues. Boomers and above tend to think sharing pictures of themselves on the information highway is similar to putting their personal details on a billboard. They have a “what happens in Vegas, stays in Vegas” mentality. Millennials will happily share photos of themselves at the proverbial slots, whooping it up.

Hoping social networking will go away while letting your unhappy staff or customers control the cyber reputation conversation is naïve. Take control of your personal brand through social networking and hide in plain sight.

— Wendy Nemitz, Principal, Ingenuity Marketing Group

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