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Advertising in the digital environment: when creativity faces legal boundaries

In today’s visual world, advertisement has become more powerful than before. Advertisement as a communication strategy aims to shape consumers’ actions and opinions about their desire of products or services. Most multinational companies hire advertising agencies to promote their products.

Advertisement per se may promote goods but may not influence their sale because of the competitive market. All companies need advertising to promote their products. Therefore, the job of advertising companies is not only to use it as a communication strategy, reach the target audience and deliver its message, but also to make the delivery of the message both creative and entertaining. Since the advertising market has become competitive, every advertising agency is willing to be more creative than the rest, which sometimes can challenge legal boundaries.

On 12 December 2014, we had the opportunity to attend the lecture entitled “Lie, Cheat and Steal- Confessions from the world of digital advertising” by Femke Schavemaker, within the series of expert lectures held in the IPKM programme. Femke is the co-author of the book “Brand Experiences”, was voted as one of the top ten Dutch ‘Powerwomen’ by Dutch Marie Claire in 2012 and has received several awards in the field.

The lecture began with Femke telling her journey from a graduate to an “advertising guru” and revealed several strategies used in advertising and challenges in this field. Femke spoke about the role of involvement in her work. She explained that in traditional advertising there is a promise communicated to consumers through the enlargement of a feature that draws the audience’s attention by means of an advertising campaign. In contrast, in interactive advertising, there is a concern to find a common ground between the brand and the consumer rather than focusing exclusively on the latter. In this context, Femke emphasised the importance of the involvement of consumers into the advertisement subject, so that the public understands the message and feels good about it.

Nowadays, outlining the practical features and benefits of a product is not enough for the consumer anymore. Consumers are guided by the symbolic values that a brand connects to its product and image. It is about “interpassivity”, a term suggested by the philosopher Slavoj Žižek to describe interactive communications in contemporary society, where emotional expressions of the consumer are delegated to a brand. If a brand can manage to effectively reach its customer by providing an experience through which consumers can satisfy their intangible, psychological needs, it can count on esteem and loyalty from them.

One of the most interesting aspects of the lecture was the approach to creativity and its meaning. Femke shared her view that as a matter cannot be created out of nothing and, as humans, we can only create something out of a previous something, creativity is a combination of matter and the free functioning of the mind. However, while the options of creation are immense, they are not unlimited because human minds think alike. To illustrate this idea, Femke presented a very interesting video that showed how minds work in a similar way and that we are all somehow naturally programmed to pick up little things from our daily lives and combine them into a creation. For this reason, a creative idea somehow always derives from a previous creation, and advertisers rely on their neighbours’ ideas to execute a certain creation. This idea-expression dichotomy prompted an interesting discussion with the audience concerning the fundamental distinction in copyright protection between ideas and their expression.

In fact, after Femke covered each of the three topics around which her presentation revolved – lie, cheat and steal – explaining how advertisers may take ideas from others and distort reality to achieve the goal of reaching the consumer and selling their product, the discussion centred around the most typical legal problems that may arise within the context of advertising, including the problem of “stealing others’ ideas”.

The discussion was very much based on the role of law in regulating the world of advertising and in providing some limits, in particular, the necessity to balance creativity with the protection of consumers from information distortions that can harm their ability to make rational choices.

Finally, it was quite interesting to see how the subject approached in this Expert Lecture, being at a first glance unrelated with the legal field, was in fact connected with intellectual property law and, in particular, with copyright and trade mark/unfair competition law. Indeed, the copyright “idea-expression” dichotomy was discussed intensively in the context of the advertising modus operandi of “stealing” ideas of neighbours. Moreover, within the same discussion of stealing/copying ideas, it was debated whether there could be a case of unfair competition when only the idea rather than its expression is “stolen” – thus there being no copyright infringement – and the “stealer” obtains an unfair advantage therefrom.

Therefore, from a legal point of view, ideas are free like air; only the expression of an idea is protected through copyright. In the advertising industry, professionals often rely on the copying of ideas but such practice, despite being “legal” (insofar as only the idea and not its expression is stolen), may damage the reputation of the concerned advertising company; in turn a damage to advertisers’ reputation can be very problematic as this is an industry substantially based on the grant of awards, because of the public’s recognition. In today’s online environment, advertisements do not simply associate a product with a company; creative advertisement builds a mental association with consumers, which may not be erased as easily. Thus, “stealing of ideas” may be useful in the short run for advertising companies, however, on the long run they should deliver creativity in theirs works.

Moreover, and despite such “theft of ideas” not being per se illegal, once an advertising company delivers a certain pitch (ideas and any presentations or products made to introduce the campaign to the client), the underlying idea can typically no longer be used because of exclusivity demanded by clients. The problem may even go further if the client decides, as it commonly happens, to order a pitch from a set of advertising companies and then select one of them to execute the campaign, it may be the case that the company which originally came up with the idea turns out not to execute the project (if it was not the selected one) and still can no longer use its idea.

In conclusion, the expert lecture by Femke Schavemaker made apparent that the world of advertising raises several legal questions related to intellectual property that legal practitioners should naturally be able to approach.

By Carolina Oliviera, Pratyush Nath Upreti, Alena Kapachova

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