Category Archives: lawyers

Dear New York Times: We ripped off your photo to prove a viral point


This is a story about why we decided to steal from The New York Times: because we’re trying to further the original intent of copyrights, to spur the encouragement of learning.

Let’s turn the clock back to yesterday when we read a series of readers’ comments at FoxNews.com about swine flu that were so paranoid we had to say something. (Click here for the Fox News link, then click on “Join the Discussion” to see comments.) Not that the people responding are necessarily wrong; it is possible that the government is turning the flu into a hoax, that no one will die from a pandemic, and that flu hysteria is a communist plot to give government control over your money. Luckily we are wearing a tin-foil hat so the radio waves from the space aliens now managing our government will not corrupt our minds.




Based on such drivel, our initial blog thesis was to explain how all consumers, including us and you, start with biased points of view, that no one is right or wrong but simply viewing reality from different entry points of perception … and how marketers must take this into consideration as they craft their own messages. But as we researched photos for this post, we came across the one at top by The New York Times photographer James Estrin that stunned us into silence.

Copyrights were meant to teach, yet have led to ignorance.

The image is wonderful. It’s heartbreakingly real. It conjures pending loss, a parental figure (mother? off-duty nurse?) coaxing life back into a young child’s lungs, a cloak of leather hinting at darkness to come. Alas, the photo is also copyrighted by The New York Times and not available under Creative Commons license, meaning we shouldn’t be sharing it with you since no revenue passes from our blog directly to NYT. Most bloggers, including us, are careful to share only images marked under Creative Commons, in which the authors of the content allow it to be passed to others as long as we provide attribution. In contrast, copyright laws block the unasked-for retransmission of images, because they hearken back to a 1710 statute in Britain meant to help writers make a living. The original logic behind copyrights was that publishers were unfairly mining the works of authors without paying them, leading to their ruin. By “copyrighting” work and ensuring authors would get paid, humans would have an incentive to create new knowledge, more people would right, and both authors and publishers and readers would win in a cornucopia of intellectual prosperity. Protection of ideas and payment to creators would lead to the betterment of humankind. In an age where it cost money to print a book, the only way to encourage the hard risks of penning words and setting type was to make sure every individual got paid.

However, the world has turned a step beyond simple protection. Now, in this age of consumers sharing everything, copyrights kill viral transmission before it starts; and today, viral success is everything. If you don’t let the masses play with your ideas, your ideas will die in the cradle. Consider the above flu image: If we did not share this New York Times’ image with you, you wouldn’t be rethinking your lack of subscription to the paper. The few thousand readers of this blog might not consider signing up and driving revenue to NYT. Hundreds of people wouldn’t rebroadcast this message, and NYT and James Estrin miss the opportunity to be seen among the masses.

Such a dilemma. We could contact NYT, try to get permission, and perhaps spend a few hundred dollars for the privilege of sharing the photo. By the time we figured out the paperwork the flu issue would be over, and no one would care (or reshare the image). So we’re testing the concept by breaking the law. The NYT lawyers likely did not read our column in BusinessWeek arguing that all content already is free, and if you don’t admit it’s free, you’re walling yourself off from your own success.

All we can say is information wants to be free. Mr. Estrin, we apologize for taking your photo, but to argue the case that swine flu is in fact viral, we want to make sure your image goes viral too.

What everyone missed about the Facebook fiasco


There’s been lots of chatter since The Consumerist pointed out Facebook changed its terms of service so that its license doesn’t expire after users leave. Bloggers cried foul, thinking Facebook wanted to “own” their content forever even if they delete their Facebook accounts.

We told BusinessWeek yesterday that everyone is missing the point: It’s not about Facebook wanting your content. Facebook wants to keep you in a prospect database forever.

It’s simple, folks. Facebook, like Google and YouTube and MySpace and Twitter, is building an enormous data set of millions of consumers, their demographics, interests, and interpersonal connections. Facebook now has a list, if you will, of 175 million people, what they like, and who is just like them. This information is incredibly valuable to marketers.

Of course Facebook does not want to reduce that list. If 5% or 10% of Facebook users delete their accounts per year (as the social media site, like others before it, begins to crest and fade), Facebook would have to continuously update its prospect database. Since much of the value of that data lies in the connections between people — which allow marketers to perform lookalike modeling, proven in studies by AT&T to quintuple response rates to advertising — scrubbing the list of dead accounts would be a royal pain.

The real story here is Facebook is anticipating customer churn so has expanded its legal language as a preemptive strike to keep the data on your relationships, even after you leave. Perhaps Facebook’s execs realize that all social media sites have a limited window of popularity, so it’s best to lock in the customer database value while you’re at the top.

So stop worrying, people. As we told BusinessWeek, Facebook doesn’t want your baby photos. It wants you and the relationships you hold.

Photo: Marco Bellucci

Bloggers, now a word from Virgin America’s lawyers


Defamation, trademark infringement, false designation, and false and deceptive advertising are not words you want to hear from a lawyer, but that’s what the ad industry blog Adrants got after posting a spoof ad not created by Virgin America.

The airline’s demand for a jury trial seems overblown until you realize the growing power of blogs to persuade consumers. Traditional newspapers have whip-cracking editors to remove any whiff of libel or defamation. Adrants’ initial headline for the spoof review read “The Hudson Crash: Just One More Reason to Fly Virgin,” followed by the copy gaffe “so woot! slather your big reds all over those news shots, V!” suggesting Virgin America really was behind the ad. The grouchy editor we worked with 20 years ago would have whacked us with a red pencil.

We sympathize — cause we all move fast writing online, and Adrants has an immensely talented staff poking needed holes in the inflated egos of the ad industry — but it’s a cautionary tale that words on a screen are held by the same standard as ink on paper. Adrants traffic is up almost 25% this year to 130,000 unique visitors a month, and 1 in 4 of its readers makes more than $100k a year. Bloggers need to tread carefully as their subjects begin holding them accountable for content that could conceivably cause material damages among readers.

It will cast a chill over the blogosphere as reviewers with fast opinions begin thinking of every conceivable downside of a brand’s mention. Did we mention that Virgin America did not create this ad?

AdFreak, Cityfile and Make the Logo Bigger have details.

Plaid: Yes, lawyers, there is no Santa Claus


Scott Monty over at Ford shared a laugh. A leader at another organization called a lawyer. Which business would you rather brag about?

Our final holiday story revolves around Plaid, a Connecticut brand shop that created a mock video for Christmas in which you can insert anyone’s name into a “news report” that they’re having, ahem, scandalous intimacy with Santa or Mrs. Claus. Completely over the top. And completely safe for work — no nudity, no vulgarity, a few uses of the word “sex” as you’d find on the evening news. When Monty got the link at Ford, he forwarded the humor on to 6,600+ people who follow his thoughts on Twitter.

Unfortunately another organization who got the link, unlike Ford, didn’t get the joke. They sent Darryl Ohrt, principal of Plaid, a nasty note hinting that the online art was defamation. (We look forward to hearing of the alleged material damages to a person’s reputation resulting from a rumor that one slept with Santa Claus.)

The real story is not about appropriateness or monitoring employees’ use of the internet … but about the brand implications on both organizations. Ford comes off like a hip company that has a bit of fun (and we’re sure Ford has plenty of lawyers, too). But this other group, well, feels as grouchy as an HR executive pricked by a physician’s needle.

Is your organization loose enough to share a laugh with employees and customers? Or is your brand heart two sizes too small?