02/20/99

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01/10/99

What does copyright mean?

Advertising Legal Smarts
Any strategy that gives you a commercial advantage leaves you prey to competitors. Some will try to use the legal system to gain an advantage. Here are some guidelines to launching an ad campaign that keeps you well within the limits of the law.

Comparing Yourself to a Competitor
The first question to ask yourself is whether your comparative advertising makes specific claims that the consumer assumes can be measured or proven, says Richard A. Kurnit, an attorney with Frankfurt, Garbus, Klein & Selz in New York City. Examples: "These pickles are more sour than brand X;" "We send more travelers annually to Borneo than any other U.S. tour operator;" or "Our lawnmower is easier to push than company B's." All of these claims can be verified by objective criteria, such as scientific tests, surveys, or demonstrations. Federal regulations require you to have proof that the advertising is true (called "substantiation") before you make the claim.

At the other end of the spectrum are claims that are pure puffery-things that can't be proven or disproven because they're "too general, hyperbolic, or humorous," Kurnit says. Since such claims cannot be substantiated, federal rules requiring you to have proof on hand before advertising do not apply. For example, a court found that the claim, "Our debt collection service is comparable to those of attorneys," was puffery because it could not be proven. The same reasoning would apply to "try it, you'll like it."

Mentioning Another Company's Name
Unless you're trying to show why your product (or service) is better or more economical, it's risky to mention another company's name in your ads without getting an okay first. That's true whether or not the other company is your competitor, says Lewis Rose, an advertising and marketing law specialist with Arent Fox Kintner Plotkin & Kahn in Washington, D.C.

In particular, the law prohibits you from using others' intellectual property to confuse prospective purchasers-for instance by making them think you're somehow associated or by mixing up two brands. A key question is what your action does to the market for the other company's product or services, Rose says. Courts will look closely at the use of another company's name that could boost your profits at their expense.

One time you're usually on safe ground naming names: if the company you're mentioning carries your products-as when a store stocks your widgets and your ad tells potential customers where to buy them.

TIP
Be especially careful when doing business on the Internet. Unauthorized hyperlinks to other companies' sites could get you in trouble, as could putting up pictures or text that violate someone else's copyright.

False and Misleading Advertising
Federal rules, and those of many states, require that advertising be truthful, accurate, and that you have substantiation for any claims you make. Otherwise you may be subject to suits by the Federal Trade Commission (the primary U.S. government agency that regulates advertising), state attorneys general, and your competitors.

Watch out for advertising that is literally true but misleading, warns Jeffrey Edelstein, a lawyer with Hall Dickler Kent Friedman & Wood in New York City. For instance, an ad for an aspirin product that says four out of five doctors recommend it implies that you took a sizable survey. If you only talked to five doctors, the ad would be misleading.

As with comparative advertising, you must be able to support any objective claim that can be verified. It's best to have this documentation on file before placing the ad.

Other Legal Pitfalls
There are some dos and dont's to consider as you think of ways to promote your product or service:

Don't imply that someone is sponsoring your product when they're not.

Don't offer a product that's so much like your competitor's (or has such a similar name) that consumers could confuse the two.

Don't use a person's name or picture without their written permission. Whether or not a person is famous, if they're recognizable in the ad you might run afoul of state privacy laws, says Edelstein. If you're using the name or picture of a celebrity who's died, state law may require permission from that person's estate.

Do read the fine print on invoices from any stock photo houses. Have a lawyer review the terms if you're uneasy about them: often they disclaim any privacy or publicity rights, says Edelstein. That means, for example, you may have bought the photographer's permission to use the picture but still need a release from the people shown in the photo.

Do make sure you have all the rights you need to use copyrighted material in your ads. Whenever you purchase material (such as photographs or text) from an outside source (for instance, from a stock photo house or freelancer) get a warranty that it's original, that the person or company you're buying it from owns all the rights you want to buy, and that they will indemnify you for any legal problems that might arise (for instance, suits for copyright infringement by someone else who claims to own the work).

At a minimum, you'll want an assignment or license giving you permission to use the work for a particular purpose. Be sure to specify what that purpose is. For example, if your contract with a stock photo house says you can use a picture in national advertising, you don't automatically have the right to put it on your site, which is accessible worldwide, Edelstein warns.

Do make sure your advertising is not even "substantially similar" to that of another company. If it is, you might be accused of copyright infringement.

Do watch out for the many types of advertising that are highly regulated by federal and state agencies. Examples are: ads targeted at children and those for sweepstakes, contests, automobiles, financial services, food, drugs, and health-related items (like weight-loss products). You'll want a lawyer knowledgeable about the particular rules to review each of these types of advertising.

Do play fair. You'll decrease the likelihood of getting sued and increase the chances of getting the case quickly dismissed if you are. FYI: Free information about advertising and marketing law is available on the Advertising Law Internet Site, maintained by Arent Fox Kintner Plotkin & Kahn, the Washington, D.C., law firm. The address for the site is http://www.webcom.com/~lewrose/home.html.

From: Small Business Legal Smarts, by Deborah L. Jacobs.
- 1998 by Deborah L. Jacobs.

12/20/99

The President Should Do The Right Thing And Commit Ritual Hari-Kiri

      In the years since my death in 1989, I have observed many political upheavals in the Realm of the Living. Yet, in all this time, I have never seen such a shameful display as what is currently unfolding in your nation's capital. President Clinton's conduct has been base and without honor, but the humiliation of a public Trial of Impeachment is an insult without measure. If your leader has any sense of duty, he will spare his country the dishonor of this vulgar and embarrassing spectacle, and redeem himself by committing ritual hari-kiri. It is the only honorable course of action left to him.

      The one called Clinton has shamed his House, his family and his ancestors. He has divided the nation and heaped indignities upon the highest office of the land. He has brought dishonor to his people and to his position. There is only one way for him to step down with dignity, set an example for the children, restore his people's faith in the presidency, and heal this nation's wounds. He must submit to seppuku, ritual suicide, and disembowel himself with a ceremonial short sword, driving the blade into the left side of his abdomen and then drawing it rightward across his stomach, before turning the blade upward, toward his heart.

      How else can Clinton regain face before the American people? He has clearly violated the Bushido code of conduct prized by all honorable men, behaving without dignity, honesty, loyalty or courage. Even before the scandal, he behaved more like a common Hohei of the lowest rank than in a manner befitting a Daimyo nobleman. When campaigning for president in 1996, did he take care to avoid contact with truck drivers, auto workers and other persons of low social bearing? Sadly, no. And, when in public, does his wife remain a respectful several paces behind him at all times as simple decency demands? She does not. These insults are bad enough. But now, hiding behind words and a cowardly legalistic defense of his dishonorable actions, he has disgraced himself to the utmost.

      He has become more of a dog than a man.

      Throughout the entire crisis, Clinton has done only one honorable thing, and that is to declare war. However, even in this he has displayed cowardice, striking at Iraqi military targets with computer-controlled air-to-surface guided missiles instead of giving the young men of his nation the privilege of sacrificing themselves in the Divine Wind of the kamikaze. His wife and child have not even hurled themselves into the sea to regain face for their lineage and family name. Before long, Kenneth Starr and the Republicans will carry the head of their enemy through the streets in a kubibukuro bag, delivering it to their Lords and Masters singing songs of triumph!

      Your leader's duty is clear. He should make a pilgrimage to the temples and shrines of his native Arkansas prefecture, and there offer gifts and tributes of rice, fruit and prayers, beseeching his ancestors for their blessing and strength in what he must do. Then he should return to Washington, kneel upon a traditional tatami straw mat and, in absolute silence, plunge the blade into his torso.

      In committing this act--preferably on national television, so that his calm and self-control while performing this slowest and most painful form of suicide can be admired by millions--it is most important that Clinton choose wisely in selecting his kaishaku-nin, the man who will be his second and stand behind him to deliver the final jumonji death-blow. My advice would be not to select the one called Gore. He seems a weak and ineffectual man, lacking the courage and strength of will to properly administer the final stroke, which will sever Clinton's head from his body and end his torment. But that is a matter that only Clinton can decide.

      Why am I saying all of this? Because I, like your President Clinton, once faced a similar situation and failed to do my duty. In life, I, like Clinton, embraced "progressive" ideals, seeking to modernize Japan and bring my nation into the 20th century. When Japan was defeated in World War II, I chose a course of compromise, accepting the Allied terms of surrender instead of dying honorably for my homeland, as the conservatives in my government demanded. After the war, I abolished the mandatory emperor-worship of State Shinto and publically repudiated my divinity. I even allowed my eldest son, the Crown Prince Akihito, to marry a commoner of ignoble birth, betraying 1,500 years of tradition!

      I, who could have died gloriously of hari-kiri rather than surrender to the hated gaijin, instead lived out my final years as a meaningless figurehead, devoting most of my hours to a trifling interest in oceanography! I brought shame and disgrace upon my ancestors and my nation! But now, condemned to walk the Earth for all eternity wrapped in chains and rags, I have learned the error of my ways. I now know that the conservatives were right all along. Hear me, Clinton! I, the ghost of Hirohito, Emperor Of All Japan, say to you this: Do not make the same mistake I did! Commit ritual hari-kiri now and restore honor to your race!

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