FTC Issues New Guidance on Online Advertising Disclosures

On March 12, 2013, the Federal Trade Commission (FTC) released the long-awaited, updated version of its .com Disclosure guidance.  See Press Release, “FTC Staff Revises Online Advertising Disclosure Guidelines,” Mar. 12, 2013.  These guidelines were last issued in May 2000, although FTC staff has been working on modifications since May 2011.  FTC, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” at 1 (Mar. 2013).

The basic premise of the 2000 disclosure guidelines remains true today:  advertising laws apply to every advertisement – without regard to the form in which it is communicated (print, television, telephone, radio or online).  Id. at 2.  Specifically, the following principles govern:

1. Advertising must be truthful and not misleading;
2. Advertisers must have evidence to back up their claims (‘substantiation’); and
3. Advertisements cannot be unfair.

Id. at 4. However, as a result of three public comment periods and a public workshop over the past two years, the 2013 guidelines provide some additional recommendations dealing with advertisements made available through online media.  Id. at 1.  Specifically,

 

1. Online disclosures must be “clear and conspicuous.”  The 2000 guidelines recommended that the disclosures appear “nearby.”  The 2013 guidelines, however, suggest placing the disclosure “as close as possible to the claim they qualify.”  Id. at 6.  The new guidelines provide a lengthy discussion of what constitutes “clear and conspicuous,” and even provide visual examples of successful and unsuccessful disclosures in the Appendix.
2. Disclosures must be effective regardless of the type of device used to access the site.  Id. at 14.  Some browsers may display the text differently than others, and the disclosures must work regardless of the device used.  Id.  Similarly, some smartphones can only show a portion of a screen that is otherwise viewable in its entirety on a desktop PC.  Id. If the disclosure cannot be made effectively on a specific type of device, the advertisement should not be made available on that device, or it should be modified so that the disclosure is not required.  Id. at 6. 
3. Disclosures must be visible before the consumer makes the decision to purchase the product.  Id. at 14.  If the consumer may also purchase the product at a brick-and-mortar store, the disclosures must be included in the ad itself, and not merely on the ordering screen, which brick-and-mortar shoppers would not necessarily see.  Id. at 15.
4. Even “space-constrained” advertisements (such as through Twitter) must comply with the disclosure requirements.  Id. at 15.  Again, if “the disclosure needs to be in the ad itself but it does not fit, the ad should be modified so it does not require such a disclosure or, if that is not possible, that space-constrained ad should not be used.  Id. at 16; see also id. Ex. 15 (noting that in some cases “required disclosures can easily be incorporated into a space-constrained ad,” such as “Ad: Shooting movie beach scene.  Had to lose 30 lbs. in 6 wks.  Thanks Fat-away Pills for making it easy.  Typical los: 1 lbs/wk.”).

 Some other points of note:

• “A disclosure can only qualify or limit a claim to avoid a misleading impression.  It cannot cure a false claim.”  Id. at 5.
• “Simply making the disclosure available somewhere in the ad, where some consumers might find it, does not meet the clear and conspicuous standard.”  Id. at 6 (emphasis added).
• Don’t require consumers to scroll to see the disclosure:  “Advertisers should keep in mind that having to scroll increases the risk that a consumer will miss a disclosure.”  Id.; see also id. at 9  (“Scroll bars along the edges of a screen are not a sufficiently effective visual cue” to cause a consumer to look carefully for a disclosure.).
• Hyperlinks to disclosures are permitted, but the hyperlink itself must capture the consumer’s attention – don’t use “disclaimer” or “more information” or “terms and conditions” to indicate that the consumer should read the disclosure.  Instead use a phrase that will persuade the consumer that they need to read the linked text before making a purchase, e.g., “Service plan required” or “Restocking fee applies to all returns.”  Id. at 12 & Exs. 5, 6.
• On a related note, do not use hyperlinked disclosures where health or safety is involved – these types of disclosures should be included within the ad itself.  Id. Ex. 4. 
• Similarly, do not put disclosures in pop-up windows, since users can avoid them completely if their browsers use pop-up blocking software. Id. at 14.
• If you are using a multimedia advertisement, the disclosure should appear in the same medium as the ad itself – thus, if the advertisement is in audio form, the disclosure should also be.  Written advertisements should include written disclosures.  Visual advertisements (such as appended to an online video) should be displayed for a “sufficient duration” for the consumer to read both the ad and the disclosure.  Id. at 20.
• Avoid having visual distractions in the background that would prevent the consumer to be able to focus on the disclosure.  Id. at 19.  “On television, moving visuals behind a text message make the text hard to read and may distract consumers’ attention from the message. Using graphics online raises similar concerns: flashing images or animated graphics may reduce the prominence of a disclosure. Graphics on a webpage alone may not undermine the effectiveness of a disclosure. It is important, however, to consider all the elements in the ad, not just the text of the disclosure.”  Id.

The operative goal with these disclosures is that the consumer actually see them so that they are not confused or mislead about the promises contained in an advertisement.  It is not sufficient for the disclosure to be buried somewhere.  Instead, the disclosures have to be prominently and clearly made, in language that is easy enough for the reasonable consumer to understand.  See, e.g., id. at 6, 20-21.

Other Resources:

Lesley Fair, Fed. Trade Comm’n BCP Business Center, “FTC Reboots .com Disclosures: Four Key Points and One Possible Way to Bypass the Issue Altogether,” Mar. 12, 2013 (concluding that “Advertisers spend a lot of time and trouble dealing with disclosures.  Sometimes there may be no way around it.  But in many cases, the need for a disclosure is really a warning sign that the underlying ad claim may contain some element of deception.  Rather than focusing on fonts, hyperlinks, proximity, platforms, and the whole disclosures rigmarole, how about stepping back and reformulating the ad claim to get rid of the need for a disclosure in the first place?”).

Common Questions: Can I Copyright My ‘Knight in Shining Armor’ Story?

The short answer is – perhaps, at least parts of it.  Copyright law protects “original works of authorship fixed in a tangible medium of expression.”  17 U.S.C. § 102.  This protection attaches from the moment at which the expression is recorded – in other words, from the moment the pen hits the paper. 

While fictional stories can contain creative and innovative ways of expressing some common themes, the common themes themselves are not protectable.  These are standard story elements – such as a damsel in distress, who is later saved by the proverbial knight on a white horse (e.g., Rapunzel or Sleeping Beauty), the villain who seeks redemption (e.g., Star Wars), star-crossed lovers whose romance is tragic (e.g., Shakespeare’s Romeo and Juliet), an epic journey through which the hero has several adventures (e.g., The Iliad or the Odyssey), or corruption and betrayal by a close friend leading to a tragic downfall (e.g., Shakespeare’s Julius Caesar).  These story elements have existed for hundreds of years, and can be found even in Greek comedies and tragedies that we studied as students in literature classes or in theater programs. 

These basic story elements are not protected under the Copyright Act, because to prevent others from copying them would render storytelling completely impossible.  They are generic, standard building blocks in any story. 

Stories that include these elements, however, are not completely beyond the protection provided by the Copyright Act.  Instead, the way the story is told – the prose, the narrative, the alliterative descriptions that bring these story elements to life – are all the kinds of unique expression which the Copyright Act protects. 

If someone were to come along and copy verbatim several chapters of a book (or even a shorter amount), the author could still enforce his or her copyrights (subject to some defenses like fair use, expiration of copyright term or independent creation, joint ownership, etc., which are beyond the scope of this article) because of that exact duplication.  The author could not prevent other stories from being written that include a “damsel in distress” element or a “knight on a white horse” element – because those are the generic elements beyond the protection of the Copyright Act.  They can always pursue an action when exact copying of their original, creative text has occurred.

In a recent case, this dichotomy between the protection of the expression versus the lack of protection of an idea was explored further.  In Rucker v. Harlequin Enterprises Ltd., No. 4:12-cv-01135 (S.D. Tex. Feb. 26, 2013), the plaintiff – an author who had written (but not yet published) the first chapter of a romance novel – sued a book publisher for its publication of a full-length novel that allegedly copied her story about a “tall, dark and handsome,” wealthy and powerful male hero, and a beautiful red-haired heroine with green eyes, who was slender, young and strong-willed.  Rucker at 14-15.  She basically argued that the book publisher copied her idea (which she had submitted in a writing contest), put it into a full-length novel, and published it without her knowledge or consent. 

The author did not provide any evidence that the publisher had actually seen her submission, but the Court later concluded that because the works were not substantially similar, there was no need to determine whether the book publisher, in fact, had access to her work prior to its own publication.  Id. at 4 n. 2.   In her complaint, the author identified 40 instances of direct infringement in a summary form, but did not provide any specific examples of them.  Id. at 1.  Because the book publisher provided copies of both works in its motion to dismiss, the Court was able to compare both works side-by-side to determine whether a claim for infringement could survive.  Id. at 1-2.

After reviewing both works, the Court recognized that while there were some similarities between the two works, these similarities were “not in legally protected elements.”  Id. at 12.  The Court explained that “a theme or trope that has long existed is not ‘expression’ that the Copyright Act protects.  Rather, infringement requires copying of constituent elements of the work that are original.”  Id. at 13.  In addition, “material or themes commonly repeated in a certain genre are not protectable by copyright, nor are so-called scenes a faire.”  Id.  “Scenes a faire” are later defined as involving “incidents, characteristics or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic, what flows naturally from these basic plot premises.”  Id. (quoting Atari, Inc. v. N. Am. Philips Cons. Elec. Corp., 672 F.2d 607, 616 (7th Cir. 1982)). 

These elements “are not protected because they are strongly affiliated or connected with a common theme and thus are not creative.”  Id.  In other words, there are limited ways available in which these standard story elements can be described.  The Copyright Act does not preclude others from copying these same standard elements, because the ideas themselves are not copyrightable.  Id. at 9 (“Copyright law does not protect an idea, but only the expression of an idea.”) (citation omitted); see also Russ Berrie & Co. v. Jerry Elsner Co., Inc., 482 F. Supp. 980, 986 (S.D.N.Y. 1980) (“shared characteristics of both parties’ Santa toys of a ‘traditional red suit and floppy cap, trimmed in white, black boots and a white beard’ and ‘nose like a cherry’ [were] common to all Santas and not probative of copying.”) (as quoted by Rucker at 13).

Ultimately, the Rucker Court concluded that “[t]he similarities that [the author] asserts are either stock elements of romance novels or plot elements that naturally flow from the broad themes that the two works share with other works in the same genre.”  Id. at 14.  The Court held that there was no actionable similarity between the two works and dismissed the complaint.  Because the Court held that allowing the plaintiff to amend the complaint would be “futile,” the dismissal was made without leave to amend and with prejudice.

The take-away point from these cases is that unique ways of telling a story will garner protection under the Copyright Act, but one author cannot prevent others from telling stories using the same standard story elements, provided that the other authors tell the stories in their own ways and do not copy verbatim what the original author wrote.

More on the idea/expression dichotomy can also be found in these prior posts:  Common Questions: Can I Copyright My Idea?  and When is a Fictional Character Copyrightable? (and, as later updated).