Amy Solava Media Law Dr.

Kailing November 23, 2010 Integrative Paper: Advertising Law

Advertising and the First Amendment interlock and while they seem to be a good match for each other, they are often problems that arise within the law aspect. And while technology advances, there is a whole list of other problems that take place. Virtual Advertising is a major issue for advertising law right now, and stealing has become a natural idea for advertisers. Advertising and the First Amendment seem to go hand in hand, but it wasnt until 1975 that the U.S. Supreme Court first explicitly held that commercial advertising enjoys a degree of First Amendment protection (Pember 550). Since Bigelow v. Virginia, the court has created a commercial speech doctrine. This speech doctrine says that advertising is a form of protected speech. The speech is protected unless it is false or misleading, not legal, or by the Central Hudson Test. It is hard to differentiate political speech from commercial speech. Commercial speech is easier to regulate because of the Central Hudson Test, while it is hard to regulate political speech because of the strict scrutiny standard. In order to better identify these two types of speech, there are three factors: whether the expression is an advertisement, whether it refers to a specific product, and whether the speaker has an economic motivation for speaking (Pember 552). Even if the advertisement is truthful, it still has to be regulated. There are certain restrictions to advertising, though. Tobacco companies have several restrictions on the advertising of tobacco products. These include:

Tobacco companies cannot use cartoon characters, such as Joe Camel, to advertise their products Tobacco companies cannot target youth in the advertising, promotion or marketing of tobacco products Tobacco companies cannot sponsor concerts or other events with significant youth audiences, including team sporting events, such as football games Tobacco brand names cannot be advertised at stadiums and arenas (Hudson). There are also restrictions for news racks, gambling ads, billboards, attorney ads, FDA labeling, and telemarketing. While technology keeps improving and people gain impressive skills, advertising seems easier than ever to accomplish. While advertisers think of new ways to get the point across, is stealing other companies ad space a good idea?

Virtual Advertising is becoming popular, especially with television shows and movies. While

watching an episode of a show I like, the soda machine may be different each time I watch it. "Virtual

advertising generally refers to the insertion of computer-generated images, such as products, logos,

brand names, and animation into live or previously recorded television or movies, Courtland L.

Reichman and David S. Moreland wrote in The Reality of Virtual Advertising: Legal Issues Abound

as Technology Advances. Reichman and Moreland gave the example of watching a MLB game on

TV. While I watch it in the comfort of my home, I see advertisements from the broadcast company.

Meanwhile, the audience at the baseball stadium sees a green screen.

While this seems like a great idea, there are several legal issues that arise. With the technology

that is available today, a broadcasting company could definitely cover up a different advertisement that

was already there. So instead of a green screen in a stadium, imagine an advertisement. The station

hosting the game would be eliminating the original ad to replace it with their own.

This actually did happen in 2000 during the New Years celebration in Times Square. CBS

replaced Budweiser and NBC advertisements for their own. OTS Signs, a company that owns and

sells the affected billboard space in Times Square (for as much as $1 million per billboard) sued CBS

following the event for effectively stealing the advertisement space, Reichman and Moreland

mentioned. The case was never tried and it was later settled for an unidentified amount in 2001.

In 2002, another case involving OTS Signs occurred. In the movie Spider-Man, the plaintiff

replaced a huge Samsung advertisement with a USA Today billboard. They also erased a 45 by 40 foot

Samsung billboard and replaced it with a Cingular Wireless ad. They also blurred out a sign advertising

NBC on Broadway.

When taken to court, the court said that the case presented an unsettled question of New York

state law, to wit, whether a trespass is committed under New York law when a partys physical contact

with another partys personal property diminishes the value of that property without damaging the

property (Reichman and Moreland).

I personally think that virtual advertising is a dangerous thing to do. I dont think it is ethical to

purposefully cover up someone elses ad. In the example above, CBS stole ad space that they did not

pay for. I think for this reason alone, virtual advertising of this nature should not be allowed. I do think

virtual advertising is ok if they paid for the ad and inserted it so it showed up on the television screen

(like in the baseball game green screen example).

Advertising is something that companies have to be careful with. While technology keeps

advancing, advertisers also need to maintain fresh ideas. With companies getting in trouble for stealing

ad space, one would think there is a better way to accomplish the task of promoting their business.

Companies need to remember the first amendment and know what that entitles them.

Works Cited: Hudson Jr., David L. "Tobacco Ads." First Amendment Center. Web. 21 Nov. 2010. <http://www.firstamendmentcenter.org/Speech/advertising/topic.aspx?topic=t obacco_alcohol>. Pember, Don R., and Clay Calvert. Mass Media Law. New York: McGraw-Hill, 2011. Print. Reichman, Courtland L., and David S. Moreland. "The Reality Of Virtual Advertising: Legal Issues Abound As Technology Advances." The Metropolitan Corporate Counsel. 1 Feb. 2006. Web. 21 Nov. 2010. <http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=No vember&artYear=2010&EntryNo=4218>.