Are advertisers using unlicensed endorsements?

February 9, 2014 David Newhoff Tags: Damon facebook Jackman Penn Travolta unlicensed endorsements

Is any of this legal?

This has been chronic in the Facebook news feed lately. I’ve seen Hugh Jackman, Matt Damon, Sean Penn, and John Travolta featured so far in these ads for “men’s health products” all of which imply these movie stars are endorsing whatever secret ingredient or method is being pushed. Click on the link, and Facebook warns the user the page they’re headed to “might be SPAM.” Ya think? Are these apparent endorsements unlicensed? Probably.

I like this one in particular . . .

That’s not Travolta’s head Photoshopped onto another guy’s body?

Unless these movie stars really are endorsing these products on terms they’ve agreed to for use of their names and likenesses, I hope their lawyers do something about it. Because if millionaires who can afford to stop this kind of activity don’t defend their rights, what does that mean for us everyday folks when advertisers decide to use our personal images or names for unlicensed endorsements? We’ve already seen this happen in a limited way. My news feed has told me things like a friend who’s a vegetarian “Likes” McDonalds, which is a little bit amusing except that it isn’t. Now that advertising is embedded into the news feed, the line is a bit blurry between friends’ updates and paid sponsorships. When the ad is clearly an ad, I don’t think it’s a problem, but I do think the anything goes, free-for-all is a problem.

Assuming these examples are the kind of sleazy false advertising they appear to be, Facebook is not responsible for creating the ad or boosting the celebrity likenesses; but if these ads are misleading and/or violating the celebrities’ rights, they do violate at least a few sections of Facebook’s own terms for advertising on its pages. And if these ads do violate those terms, why are we seeing them?

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Tags: Damon facebook Jackman Penn Travolta unlicensed endorsements

David Newhoff

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David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

10 Comments

Sam Flintlock says:

February 9, 2014 at 10:46 am

Did you follow the link? Men’s Health seems to be an online magazine. Are you sure this is an advert and not a story?

Reply
- David Newhoff says:
  
  February 9, 2014 at 12:05 pm
  
  Mens Health is both an online and physical magazine. Even if it’s a “story,” I’m pretty sure it would be an “advertorial,” given the magic pill pitch; and I’ll be surprised if all or any of these actors have granted use of their names to endorse these health secrets. Not one of the actors used fits the typical profile of celebrities who tend to sell this kind of stuff. Usually, it’s some minor star who had a good run on TV for a few years and now doesn’t work so much as an actor. These guys are all A-listers and plenty busy.
  
  Reply
  - Sam Flintlock says:
    
    February 9, 2014 at 12:23 pm
    
    Sure, this isn’t an interesting or worthwhile story even if it is that. Mostly, I’m just wondering if this is just some kind of bodybuilder version of celebrity gossip journalism. If so, it’s obviously worthless, but not necessarily illegal. The use of celebrity names to sell weak stories is pretty standard in that field.
  - David Newhoff says:
    
    February 9, 2014 at 12:41 pm
    
    Actually, I pretty sure the celeb gossip garbage is actionable but not something celebrities typically bother with because they’d never stop suing those papers; and nobody they care about takes it seriously. Creating a false endorsement to sell a product, however, crosses a different line, and it will be interesting to see if celebrities take notice and/or take any action.
adamsmith2009 says:

February 9, 2014 at 11:44 am

They use the same tactics in the FB games, such as “so and so invited you to play space crash or whatever”. I started asking friends by private message if they invited me, they ALL said no. Before I knew this, i used to put a blanket status update requesting ‘please stop inviting me to play games’. Now I know it’s all FB’s doing. You may be on to something here.

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Faza (TCM) says:

February 9, 2014 at 12:07 pm

It seems to me that regardless of whether these ads violate the ToS they are ads. Outside of ads, Facebook doesn’t have a revenue model, which is why I believe that we’ll be seeing such ads for as long as Facebook exists.

(Lots of things that wind up on YouTube or Google’s search results – in prominent positions, no less – are also against Google’s ToS. Apparently, Google don’t give a toss.)

This actually raises an interesting issue with online advertising in general. The kind of data-slurping that Facebook et al. engage in is supposed to slot each and every one of us into an advertising target category. Unfortunately, it seems likely that:
a. the better such algorithms get, the easier it will be for the reputable advertisers to focus on not only just their absolute top-pick advertising targets, but also on that subset of it that is most likely to purchase (there are numerous metrics by which this can be guesstimated). This allows the advertisers to get more bang for their buck, but it does mean that those of us who don’t “make the cut” will drop into a “less-valued-customer” category – y’know, the kind of audience that folks who advertise in the cheap celebrity mags are looking at. Even a brief look at who’s advertising in those will reveal that it’s mostly the bottom feeders.
b. The more care we take to protect our data, the more likely that we will get slotted in the “other” category.

Assuming that advertisers are rational with their budgets, they will seek to maximise Facebook’s targetting capabilities and spend as little as possible. That, however, reduces Facebook’s revenue. How to make up the difference? By selling low-cost advertising, observing no standards whatsoever and steering clear of any discrimination with regards to what is being advertised. A scammer’s money jingles as nicely as a reputable producer’s. Plus, a bottom-feeding advertiser is much more likely to pay for other “services” that Facebook has to offer – like putting people’s likenesses in ads targetted at their friends.

Consider that as soon as people start raising a stink about something like that McDonalds “endorsement” by your vegetarian friend, David (which is bound to happen, sooner or later), any company that cares about its public image will withdraw from such practices. The only people still willing to engage in them will be those who are thoroughly disreputable to begin with.

Reply
- Sam Flintlock says:
  
  February 9, 2014 at 12:25 pm
  
  Quicker then that, more and more people will just switch to Firefox and use adblock. Which is problematic to an extent- it means that online advertising will become less of an option for reputable businesses as well.
  
  Reply
  - John Warr says:
    
    February 9, 2014 at 2:53 pm
    
    Ack I adblock by default, and white-list sites I like. More than that I take the white-list of advertisers supplied by adblocker (which are mostly from the Google doubleclick network) and apply them to the blacklist too.
- David Newhoff says:
  
  February 9, 2014 at 1:14 pm
  
  I’ve wondered, Faza, for a long time whether the dream of targeted advertising can ever really be achieved. For one thing, the more invasive your approach to me feels, the more I’m going to be creeped out and have a bad association with your brand. I think mainstream advertisers may be finding that a lot of old-school media buying rules still apply — target categories of consumers based on demographics and the kind of media they consume. It’s been interesting to see consumers accept standard commercials on websites without a lot of pushing back, and if you watch three segments on CNN.com right now, you’ll get a spot with each segment, probably from the same advertiser. Meanwhile, it seems the direct ads in places like the FB newsfeed are a mix of some mainstream brands, some small and interesting startups, and some real bottom-feeders. Lately, though, I feel like I see fewer traditional brands in the feed.
  
  Reply
  - James_J says:
    
    February 10, 2014 at 8:00 pm
    
    Ugg… “targeted ads”…
    They have made their way to my cable-box, these targeted ads… and they really piss me off.
    For one, it is usually shit i’ve already purchased… i don’t need to see an ad for that, as it won’t compel me to buy anything… either i like the product i’m holding or i don’t… I know it’s targeted because it’s always the very thing i bought last week, and that i’ve never ever in my [X] decades of living ever seen these things advertised, let alone the specific brand i bought….
    Two, after having some medical problems, the last damn thing i want to see is endless medical center and drug ads on TV…. i watch (when i do) to escape these things, not to be reminded constantly of them… I usually just turn the TV off or constantly ‘surf’ if these commercials come on…and it definitely has the opposite effect (at least on me) than the advertisers would want. Instead of putting me in the mood to buy something — it puts me in the mood to throw my television out the window and sell my possessions and move to BFE or a camp-ground somewhere..