Under the Influence with Terry O'Reilly - S8E09 - Unwitting Endorsers

Episode Date: February 28, 2019

This week, we explore the world of unwitting endorsers. Sometimes a celebrity is featured in an advertising campaign without his or her knowledge or permission. There’s no denying the pull of celebrity, but a brand is a legal property. And if you trespass, you risk trouble. Hosted on Acast. See acast.com/privacy for more information.

Hi, it's Terry O'Reilly. As you may know, we've been producing a lot of bonus episodes while under the influences on hiatus. They're called the Beatleology Interviews, where I talk to people who knew the Beatles, work with them, love them, and the authors who write about them. Well, the Beatleology Interviews have become a hit, so we are spinning it out to be a standalone podcast series. You've already heard conversations with people like actors Mark Hamill, Malcolm McDowell, and Beatles confidant Astrid Kershaw. But coming up, I talk to May Pang, who dated John Lennon in the mid-70s. I talk to double fantasy guitarist Earl Slick, Apple Records creative director John Kosh. I'll be talking to Jan Hayworth,

who designed the Sgt. Pepper album cover. Very cool. And I'll talk to singer Dion, who is one of only five people still alive who were on the Sgt. Pepper cover. And two of those people were Beatles. The stories they tell are amazing. So thank you for making this series such a success. And please, do me a favor, follow the Beatleology interviews on your podcast app. You don't even have to be a huge Beatles fan, you just have to love storytelling. Subscribe now and don't miss a single beat. BetMGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with the sportsbook Born in Vegas. That's a feeling you can only get with BetMGM.

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about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. From the Under the Influence digital box set, this episode is from Season 8, 2019. You're under the influence with Terry O'Reilly.

When Donald Trump raised the glass to make a toast to world leaders at the United Nations recently, his glass was not filled with wine. It was a Diet Coke. Trump doesn't drink alcohol, but he's a super fan of Diet Coke, so the United Nations had to make sure the president's favorite beverage was on hand that day. It has been reported that Donald Trump drinks 12 cans of Diet Coke per day, or roughly 360 cans per month. The New York Times reported that 12 cans a day

is just two cans short of the daily adult human limit for caffeine. As Advertising Age magazine recently put it, Donald Trump doesn't just have a Diet Coke problem, Diet Coke has a Donald Trump problem. Historically, the Coca-Cola corporation prospers under Democratic

administrations, while PepsiCo thrives under Republican rule. The pattern was established when Democratic President Franklin D. Roosevelt asked his postmaster general, who was a Coke executive, to supply Cokes to American troops. Soon, Coke had bottling facilities around the world. The Cold War gave Pepsi a shot at the White House when Republican Vice President Richard Nixon convinced Nikita Khrushchev to toast with a Pepsi

at the American National Exhibition in Moscow in 1959, paving the way for Pepsi to be sold in the Soviet Union. When Nixon lost the presidential election to Kennedy in 1960, he went back to practicing law and was an attorney for PepsiCo. As a matter of fact, Nixon was in Dallas the morning of Kennedy's assassination. He was

attending a Pepsi convention. So, historically speaking, Republican Trump is bucking the cola trend. Or is he? Diet Coke sales have been trending down since the year 2006, and Coca-Cola has been pouring marketing money into reviving its image. The main strategy is to appeal to a younger, diverse millennial audience.

So, Trump's Diet Coke obsession is not exactly helping the brand. He's a polarizing 72-year-old grandfather, and his approval rating with diverse young people aged 18 to 29 is not exactly stellar. The problem is that Trump drags the brand into a much older demographic, clashing with Koch's marketing goals at every step. Not only that, he's putting the brand right into the middle of endless controversies by association.

When Coke's worries went public, the president responded in his usual Trumpian way by tweeting, The Coca-Cola company is not happy with me. That's okay. I'll still keep drinking that garbage. So, if you look at it through a marketing lens, Trump is an unwelcome coke endorser, meaning Pepsi may be thriving under a Republican administration after all. In the world of marketing, there are unwelcome endorsers and then there are unwitting endorsers.

That's when a celebrity is featured in an advertising campaign without their knowledge or approval. You would think in this litigious day and age that no marketer would dare use a celebrity's image without legal permission. Well, you'd be wrong. The list of unwitting endorsers is long and very current. But as marketers soon discover, you can't beat the real thing. You're under the influence. When I was starting out in the ad industry, there was a fantastic advertising agency located in, of all places, Minneapolis, Minnesota. It was called Fallon McGilligit Rice.

It was a small regional agency trying to attract the attention of big brands. That agency greatly influenced me because I loved their bold writing. It was sassy, it was smart. And that little ad agency in the snowy hinterland, a thousand miles from the big advertising centers of New York and Toronto, had a strategy of trying to attract big brands by doing highly

creative work for small ones. One of the early Fallon McElligot Rice campaigns was for a barber shop called 7 South 8th for Hair. The ad showed famous people that were known for having odd hairstyles. One ad showed a big photo of Richard Nixon with the headline,

You can't cover up a bad haircut. Another showed a big photo of Albert Einstein with the line, A bad haircut can make anyone look dumb. Beyond the cheeky headlines, I was amazed to see celebrities in that campaign. Because there was no way Nixon's family or Einstein's estate would have agreed to those ads with those headlines. They were unwitting endorsers. But that feisty little ad agency took a gamble the humor of the ads would keep them out of trouble.

And it seems it did. The history of unwilling and unwitting endorsers in the advertising industry is an amusing one. Back in 1989, the advertising agency that handled Stroh's Light Beer was trying to come up with a new TV campaign. They needed an idea to break through the clutter. They wanted to use celebrities, but there was just one problem. They couldn't afford them.

That was when one of the ad writers, or copywriters as they're called in the ad biz, saw an old Woody Allen movie called What's Up Tiger Lily. It was a cheesy Japanese spy movie that Woody had completely rewritten and dubbed to turn it into a comedy. So the ad agency researched old stock newsreel footage of various political leaders and specifically chose ones they knew they wouldn't have to pay. They settled on three people, or three communist leaders to be precise, Nikita Khrushchev, Daniel Ortega, and Fidel Castro. Then they took the footage and dubbed the audio

to make it appear the leaders were complaining that Stroh's wasn't available in their countries. In the Khrushchev commercial, for example, the Russian leader is dubbed to say, Stroh's Light is even better than vodka. In the Fidel Castro ad, the Cuban leader says, I don't know what to do. What would you do if you were me? America's got this beer. It's called Stroh's Light, and it's fire and brood. It's not like any other beer. So I called the State Department and said, let's make a trade. Are cigars for your Stroh's Light? They say, Fidel, you're going to have to forget about it. As the campaign rolled out across Chicago, Pittsburgh, and Minneapolis,

the TV audience caught on and looked forward to seeing which country and which leader would love Stroh's next. Pittsburgh, and Minneapolis, the TV audience caught on and looked forward to seeing which country and which leader would love Stroh's next. While most TV commercials cost over $300,000 to produce back in 1989, the entire Stroh's campaign, on the other hand, cost just $30,000 total. The campaign contained another great irony. The three communist leaders featured in the commercials walked away with the premier prize in capitalism, the 1990 Clio Award for Best Television Campaign. And they probably never knew.

The video game was named Call of Duty Black Ops 2. It was a big hit. But not with former Panamanian dictator Manuel Noriega. As it turns out, Noriega was made aware that Call of Duty used his image and likeness when his grandchildren were playing the game and asked why their target was to capture Grandpa. Noriega then filed a lawsuit in Los Angeles Superior Court, stating the game portrayed him as, quote, the culprit of numerous fictitional heinous crimes.

Activision, the game publisher, hired lawyer Rudolph Giuliani to put forth a special motion to strike the lawsuit, stating Noriega's claims threatened to give historical figures veto rights over constitutionally protected works, and would affect everything from Saturday Night Live to Forrest Gump to Bill and Ted's Excellent Adventure. Furthermore, Activision claimed the Noriega character played a minor role in the game. Noriega's lawyer, on the other hand, argued the former dictator was the key factor in the game.

In an interesting and somewhat amusing move, Noriega cited case law that involved the Three Stooges. In that case, an artist had drawn charcoal pictures of the Three Stooges, then transferred those images to t-shirts, which he then sold. The estate of the Three Stooges sued. The court

ruled in favor of the estate, saying the artist was within his rights to draw pictures of the Three Stooges and sell them, but once he transferred the pictures to T-shirts, he had entered into commercial exploitation, and for that he needed permission. Noriega made the same claim, stating the video game had violated his publicity rights and reputation. On October 28, 2014, a Los Angeles Superior Court judge dismissed the case,

ruling that even though the dictator was an unwitting character in the fictitious game, the inclusion of the character was protected under free speech laws, and that video games had the same protection as books, movies, and TV shows. One footnote to this story. Noriega was in prison when he filed the lawsuit. Kanye, Rihanna, Beyonce, Jay-Z and Pharrell. These five music superstars who do not require last names, got together to sue one clothing company recently.

The company was a Paris-based retailer called Eleven Paris. The celebs filed a lawsuit in New York federal court saying Eleven Paris was brazenly selling clothing and accessories featuring their likenesses without their approval. The retailer had been warned before, and the lawsuit accused Eleven Paris of being a, quote, habitual, willful, intellectual property infringer. Products included items that featured the celebrities' faces, along with such phrases as Kanye is my homie.

Other items featured Beyoncé and Rihanna's song lyrics. The retailer was also accused of naming products in ways that were nearly identical to those of the celebrities, like its Kayoncé line. The five celebrities sought to recoup profits and triple damages because the knockoffs also created confusion in the marketplace, because each of the celebrities have their own clothing lines. Eleven Paris Apparel is sold in more than 800 stores in 25 countries, including a store

in New York City. In the 96-page filing, over 60 violations were cited. And in a strange plot twist, Beyoncé's sister appeared in Eleven Paris' ad campaign that very year. Eventually, the singer settled the lawsuit out of court in 2015. Eleven Paris had to pay a hefty monetary sum to the plaintiffs and agreed to permanently stop manufacturing and selling the infringing products. Proving, if you want to feature celebs in your marketing, you gotta put a ring on it. Recently, a Supreme Court justice in Canada

discovered that a piece of lingerie had been named after her. As it turns out, Quebec-based retailer La Maison Simons had launched a line of bras named after famous Canadian women. The Beverly was a $29 bralette named after Supreme Court Justice Beverly McLaughlin. McLaughlin had spent 28 years on the Supreme Court of Canada, including 18 as Chief Justice. When Ms. McLaughlin learned of the bra named in her honor,

she contacted her lawyer. With the assistance and through her legal counsel, Chief Justice McLaughlin's lawyer contacted Simon's counsel and insisted a public apology be published in all the major newspapers, that all marketing materials be removed, and all product be taken off the shelf. The president, Peter Simons, offered that apology and did not minimize the concern or make excuses.

He released a statement saying he was taking full responsibility and that it was a lack of judgment on his part. He said that the line was meant to honor women who made historic contributions to Canada, and he sincerely regretted that Ms. McLaughlin was neither informed nor asked for approval on the products bearing her name. Along with the apology, Simons agreed to a further demand from Justice McLaughlin. To get involved with a fundraising campaign for the Cornerstone Housing for Women Emergency Shelter Organization in Ottawa.

The lingerie line also featured a bra named after the late Cabinet Minister Flora MacDonald, a plunge bra named after author Gabrielle Waugh, and bras named after Clara Brett Martin, Canada's first female lawyer, and Nellie McClung, the famous suffragette responsible for the legal case that saw women established as legal persons under Canadian law. The pushback from the public was loud and immediate. As one person said, Let's erect a monument to these women, not a line of bras.

All the lingerie in question was taken off the shelves and removed from the store's website. By the way, not all unwitting endorsers are famous. And we'll be right back after this message. If you're looking for flexible workouts, Peloton's got you covered. Summer runs or playoff season meditations, whatever your vibe, Peloton has thousands of classes built to push you. We know how life goes. New father, new routines, new locations. What matters is that you have something there to adapt with you,

whether you need a challenge or rest. And Peloton has everything you need, whenever you need it. Find your push. Find your power. Peloton. Visit Peloton at onepeloton.ca. In 2017, a North Carolina woman named Kayla Kraft discovered a Facebook photo of her self-drinking beer was used in an advertising campaign by Anheuser-Busch. Kraft filed a federal lawsuit claiming copyright infringement,

invasion of privacy by misappropriation, and violation of the Right of Publicity. She wanted Anheuser-Busch to stop publishing the photograph and pay her punitive damages. It was an interesting case. According to the lawsuit, Kraft was at a bar having drinks with friends in 2013 when she put on a fake mustache and drank from a bottle of natural light beer, brewed by Anheuser-Busch. Later, she posted that photo to Facebook. Kraft claimed that Anheuser-Busch began a marketing campaign called

Every Natty Has a Story to promote the beer. Natty was a nickname for natural light. As part of the campaign, the brewery distributed promotional items and printed materials, which included coasters and posters of ordinary people having good times while drinking Natty Light. Some of those posters and coasters included the photo of Kraft drinking the beer and were displayed in bars, restaurants, and retail outlets. Here's the important part.

Kraft claimed Anheuser-Busch had misappropriated her likeness by producing and distributing the posters without her knowledge or consent and without compensation. However, the brewery insisted it was in the right. The photo in question had been submitted by someone to Natural Light's Facebook page. It was part of a promotion that offered rewards to people for submitting photos of themselves enjoying natural light. Moreover, the promotion stated that entrants granted Anheuser-Busch

a broad license to use their photos in any media for commercial purposes. It appears no one knew who submitted the photo. Or maybe it was a stolen photo. Either way, there was no paperwork. Just an online boilerplate click-through agreement that said if you submit, you are granting permission for the photo to be used. The decision in this case would prove to have wide implications. But just two months after filing the lawsuit,

Kayla Craft filed a Notice of Voluntary Dismissal, and the case was suddenly terminated. No reason was given. User-generated content is a brave new frontier in the 21st century. It suggests that companies have to look

over their online agreements more carefully and the public has to read the fine print. It also highlights the fact that non-celebs have rights too and people don't relinquish their rights by posting on social media. There is another kind of unwitting endorser out there these days. Celebrity scam ads. Several Canadian talk show hosts, all female by the way, were the victims of online scams recently.

One of those was Marilyn Dennis, host of a very popular daytime talk show that attracts a big audience. Ads started popping up online with scandalous headlines. One said, Marilyn slip up on air. Others said, Marilyn Dennis axed from show. When people clicked on the sensational ads, they said Marilyn Dennis had been fired, but that she was leaving to start an exciting new skincare business. People were then encouraged to fill out a form to buy a sample product.

Of course, the ads were all scams. Marilyn Dennis was not leaving her show, nor was she endorsing skincare products. When people gave their credit card numbers, they found themselves sucked into what's called a negative option billing scheme, where you sign up to purchase a non-existent product, then you discover you're being billed $90 or $100 every month

and it can only be stopped if you call to cancel. And these online scam companies make it virtually impossible to contact them. So the billing just continues. In 2009, Oprah and Dr. Oz filed a trademark infringement complaint against 40 internet companies. One of the biggest was based in Alberta. These scam marketers were using their names

without permission to promote weight loss supplements and other products. As Dr. Oz said, people were walking up to him on the street and saying, shame on you, I trusted you, how could you do this to me? At first, he didn't know what they were talking about until he discovered the scam.

The court sided with Oprah and Dr. Oz and the scam companies were ordered to permanently stop using the names, pictures, voices, identities, likenesses, and images of both Oprah and Dr. Oz. But the Internet is still the Wild West, and it's very difficult to police. While Oprah and Dr. Oz got some satisfaction from the courts, the Canadian talk show hosts say that very little is being done about the scams in Canada. If you're looking for flexible workouts,

Peloton's got you covered. Summer runs or playoff season meditations, whatever your vibe, Peloton has thousands of classes built to push you. We know how life goes. New father, new routines, new locations. What matters is that you have something there to adapt with you, whether you need a challenge or rest.

And Peloton has everything you need, whenever you need it. Find your push. Find your power. Peloton. Visit Peloton at onepeloton.ca. In November of 2017, I happened to see a tweet from actor William Shatner that was a little unusual. It said, Mr. at Brad J. Lamb, it has come to my attention you are using my name and caricature likeness in your brochures to sell real estate. I do not recall giving you permission to use my name or likeness. Now, Brad J. Lamb is a very successful condo developer and realtor in southern Ontario.

Lamb is developing a property in downtown Hamilton. It is a $360 million mixed retail and residential project featuring two towers and 618 units. Occupancy date, 2022. He named the development Television City because the site is being built on the land surrounding the former historical head office of CHCH TV, which had been there since its inception in 1954. Because of the television connection, Lamb wanted to name the units after his favorite TV personalities he watched and loved growing up. Attached to Shatner's tweet was the condo price list

that went from $234,000 to over $600,000. There was the Bob Barker condo, the Johnny Carson, the Lucille Ball, the Jerry Seinfeld, the Carol Burnett, and the Jay Leno, to name a few. And there were also four expensive penthouse suites available The Don Johnson, the Mr. T, the Andy Griffith and the William Shatner which was selling for $1.6 million Brad Lamb responded to Shatner on Twitter saying his intention was to honor the stars while playing into the theme of the television property.

But after receiving William Shatner's tweet, he would remove all references to the celebrities from the promotional materials and website at warp speed. Then the captain of the Starship Enterprise responded by tweeting the following. Removing my name doesn't exonerate you for damages for using my brand in a commercial venture. I understand you are a kind gentleman.

Let's settle this like gentlemen. I have a charity. I would like you to give a nice big donation in lieu of having to talk to my lawyers. Deal? Lamb responded to that by saying his company contributes to multiple charities and would be happy to discuss Shatner's charity

and to please contact Lamb any time through his office. Then the issue moved offline. Like with Justice McLaughlin, the issue was resolved with a contribution to charity. But it was a lesson in the pitfalls of misappropriating someone's name and likeness. Be careful when you boldly go where no brand has gone before. There is no denying the pull of celebrity. We live in a celebrity-driven culture. The leader of the free world is a reality TV star.

And no one understands the power and value of the celebrity brand like Mr. Trump. That's why it is so dangerous when marketers use celebrity imagery in their marketing without permissions or approvals. Especially in a world of split-second social media. William Shatner actually used social media to leverage his situation when he called the condo developer out on Twitter. By taking the issue public, Shatner didn't have to go to his lawyers. He just had to shine a spotlight on the transgression.

In the condo and lingerie stories today, both companies named their products after famous people as a tribute. But a brand is a legal property, and if you trespass, you risk trouble. That is, unless you are Manuel Noriega, or a communist leader, or an unwitting celebrity being used in scam ads that poach on the trust of their fans. Online buyer beware. It's also interesting to note you don't have to be a celebrity or a famous politician to be an unwitting endorser. Everybody has publicity rights.

Which is easy to forget when you're under the influence. I'm Terry O'Reilly. This episode was recorded in the Terrestrial. Producer, Debbie O'Reilly. Sound engineer, Keith Oman. Theme music by Ari Posner and Ian Lefevre. Research, Abby Forsythe. Co-writer, Sydney O'Reilly.

For a master list of all our episodes, go to terryoreilly.ca. See you next week. Under the influence. Because we do what you do before you do it. By the way, I know you've been dreaming of wearing an Under the Influence t-shirt. Or maybe I was dreaming that. But anyway, we have them for sale on our shop page. And if you listen to the show while sipping a tea or a coffee, have we got the mug for you.

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