Lord of the Rings. What do you think of when you hear that? A timeless book trilogy, a huge movie franchise? At Pfeiffer Law, we think of it as the reason for the last of 4 major FTC cases against brands. In late 2014, Warner Bros launched an online marketing campaign to promote their new game Middle Earth: Shadow of Mordor, which was based on the Lord of the Rings trilogy and The Hobbit.
They hired Plaid Social Labs, an ad agency, to help them get the word out about the game. They then, through Plaid Social, hired gamer influencers to create positive gameplay videos promoting Shadow of Mordor and post them on YouTube. They gave the influencers free pre-release versions of the games and paid them to create videos that met their requirements. But because Warner Bros didn’t read our other blog posts, their requirements communicated to the influencers did not include an instruction that sponsorship disclosure had to be clearly and conspicuously in the video and above the fold in the description box (so viewers don’t have to click “see more” to find the disclosure). Because of this, most of the influencers did not have any mention of sponsorship in their videos and put the disclosures below the fold (where people would have to click “see more” to find them – and really, does anyone do that?).
The FTC took issue with this because, while technically the disclosures were there, they didn’t do consumers any good because a lot of consumers didn't actually see them. So, in addition to the rules announced in Sony, Machinima, and Lord and Taylor, the FTC made a few more rules to make it clearer what disclosures should look like:
- If the endorsement is solely visual or solely audible, make the disclosure the same way the endorsement is presented (that means if people can hear the endorsement, they need to hear the disclosure)
- If the endorsement is both visual and audible, then make the disclosures simultaneously both visually and audibly
- If it’s a visual disclosure, make sure people could actually read it and that it stands out so consumers would actually notice it
- If it’s an audible disclosure, make sure that people could really hear it and understand it
- If an influencer makes an endorsement in multiple languages, then the disclosure should be made in each of those languages
- Also, if you hire another company to help you launch an influencer campaign (like an ad agency), make sure you monitor them for compliance too!
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation, and privacy.