Hello Patio, Hello Lawsuit: Mad Men & the Law

 Posted by on September 25, 2009 at 10:21 am  Season 3
Sep 252009
 

This is a cross-post from Void for Vagueness, the blog of francesk, who is both a Basketcase and a lawyer.

Hello Patio, Hello lawsuit?

For the sake of argument let’s say that the Patio executives really loved Sal’s Patio commercial.  They love it just the way it is. What it is is an exact frame by frame copy of the opening sequence to the 1963 film “Bye Bye Birdie.”  An Ann-Margret wannabe recreates the scene in the ad with “Bye Bye Birdie” changed to “Bye Bye Sugar.”

Let’s further assume that the British bean counters at  parent company Putnam, Powell and Lowe were willing to stick a crowbar in their wallets and pay the appropriate licensing fees (which would pre-empt any copyright issues for the film and the song, and could run anywhere from $10,000  to over $1 million in 2009 dollars. For the title song from one of 1963’s top grossing movies featuring one of the year’s hottest new stars, it could be closer to the top of the scale rather than the bottom.)

Let’s say it airs in prime time. Let’s say during “Bonanza.” Let’s say during “The Dick Van Dyke Show” and “American Bandstand.”  Let’s say Ann-Margret sees the ad and has the same reaction Peggy Olson had.

That is to say she hates it.

In this hypothetical situation, Ann-Margret not only hates the ad, but she has never heard of Patio and wouldn’t drink “dietetic” soda on a bet.  Did she have any legal recourse in 1963?

Well, everything is fine if  PepsiCo and Sterling Cooper asked her permission.

But what if they didn’t bother to ask? What if they didn’t think they needed to? If they didn’t get permission, Ann-Margret could sue for violation of the right of publicity.

Simply put, the right of publicity is the right to control one’s identity and how it’s used. If Ann-Margret did sue Sterling Cooper, she’d become famous for something other than her acting and singing. That’s because the  most significant suits involving recognizable images of pop culture figues such as Jacqueline Onassis, Frank Sinatra, Bette Midler and Tom Waits didn’t arise until the 1980s.

So, If Ann-Margaret sued Sterling Cooper in 1963, 20 years ahead of when the first suits were filed, hers would have been the first in a series of  important “impersonator” cases involving a celebrity asking for an injunction and/or monetary damages because their image was used in an advertisement without their permission. Ann-Margret Olsson v. Sterling Cooper would be a landmark right of publicity case that law students would still be studying 45 years later.

But suppose Sterling Cooper (wisely) decided to scrap the Patio ad, but decided to use the singer’s voice and the jingle with different visuals that didn’t include an Ann-Margret look-alike?  Based on the outcomes of existing case law, Ann-Margret would again be a legal trailblazer a good 25 years before Midler filed her famous lawsuit against Young & Rubicam. In Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989), Midler refused an offer to sing her hit song “Do You Wanna Dance” in an ad for the Mercury Sable. In a move that would make Bert Cooper proud, Y&R hired one of Midler’s back-up singers to perform the song in her stead.  Several years later, Waits refused a smilar offer from Frito-Lay and a “sound-alike” was found to mimic his  distinctive voice. (Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992).

Both artists won their suits on right of publicity claims. Midler was awarded $400,000 and Waits received $2,500,00 several years later. The Midler case turned on her claim that the impersonation featuring her distinctive vocals would lead viewers to think that she was singing the song and therefore endorsing the car. And Ann-Margret’s vocals are nothing if not distinctive.

If Ann-Margret decided to sue, it’s likely she’d  prevail in what could have been a multi-million dollar lawsuit (in today’s dollars) against Sterling Cooper, which could have been disastrous for the agency. And since series creator Matt Weiner has said he’d like to see the series move into the 1970s, it’s probably a good thing the Patio folks decided to pull the plug.

Another huge lawsuit going on right now is the class action against xarelto. Thousands of people have been effected by this drug.

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  27 Responses to “Hello Patio, Hello Lawsuit: Mad Men & the Law”

  1. This scenario differs from Midler's and Waits' in that Ann-Margaret was playing a character in a movie. It all depends on her contract, but I think the contract she signed in 1963 likely gave the studio full rights to use her likeness related to Birdie as they saw fit.

  2. I think the contract she signed in 1963 likely gave the studio full rights to use her likeness related to Birdie as they saw fit.

    Agree. Same is true even today for all but the top tier stars, I believe.

  3. We must keep in mind the Vanna White case in which a tv ad featured a robot with a blond wig who turned letters. This was seen as a violation of vanna white's "character." And then there are cases in which robots who look like Norm and the other guy on Cheers are manufactured to sit in a bar at airports. Here the characters are simply characters created by the writers. Still the court found that Norm and the other guy may have a right of action due to the use of their likenesses.

  4. This is so fascinating!

  5. Although I enjoyed the Ann Margeret/Patio story line, and I understand why it was so attractive to the Mad Man writers, it would have been unlikely to the point of improbable for the Patio people to suggest that commercial, and an ad agency to go along with the idea, in the early '60s.

    Yeah, I know about those identity cases — I met Wait's lawyer at a party back then, and remember discussing just that lawsuit, because it was such a relatively new idea then. (Also remember sharing his indignation at the noive of the commerical people, and agreeing with idea of the lawsuit.)

    But if Patio had ripped off Bye Bye Birdie, in 1963 an instantaneous lawsuit would have come from those who wrote the original musical and/or the movie studio.

    No less ASCAP, the songwriter's union: so vigilant an entity that when I worked in research at a national magazine back in the early '70s, I remember having to get written permission from ASCAP to quote in an article a very small portion of the lyrics of the 30 year-old song "As Time Goes By."

    And a charge was involved: over $100 for just two lines. That small a fee, only because qouting in print media was considered promotion and publicity — to exploit even a three-decade old song in a commercial, would have cost tens of thousands of dollars, or more, depending on the exposure.

    Forget getting permission to use the music from a song in an commercial the same year the movie was released. That just wasn't done in the early '60s.

    Although it's now common for currently popular songs to pop up in commercials — for those who created the song to give permission — that's a very recent phenomena.

    In recent memory, artists were accused of "selling out" by fans — back in the early '60s the movie studio or the artists of a current song would have considered it the debasing of their artistic work, and have refused permission.

    Which is one reason why commercials from that era usually used music in the public domain, or "jingles" written specifically for the product.

    Jingles specific to a product also reinforce that brand, rather than remind an audience of the another brand (musical, etc.)

    Which would have been another consideration for the Patio people, no less getting their asses sued off.

    Both an ad agency and a manufacturer of that period would have been well aware of the copyright problems in parodying a song from Bye Bye Birdie — and if they weren't, their lawyers would soon disabuse them of the notion.

  6. By the way, I meant I met Tom Waits' lawyer and discussed his case at a party twenty years ago or so, when the case had been recently settled, and made what was then sorta new law.

  7. freelancewoman, I think you skimmed, rather than actually read, francesk's article, which explicitly states that permission has already been sought as a precondition of the hypothetical.

    Check paragraph #3, beginning "Let's further assume."

  8. By the way, I meant I met Tom Waits' lawyer and discussed his case at a party in the early '90s, when the case had been recently settled, and made what was then sorta new law.

  9. "Mad Men Anachronism Denial Squad" was meant tongue-in-cheek, as a joke, but not to offend. (But apparently needed a smiley face to make that clear, so my writing was apparently not clear.)

    "Is ever vigilant" is a call-back to ASCAP being "ever vigilant" in the previous comment.

    It's probably more interesting for francesk as a lawyer to discuss the more recent Midler and Waitt's case law as a hypothetical, than the more established copyright laws.

    But having worked in the media and confronted just those issues, the Ann Margaret storyline did strike me as a big anachronism, when it came up — although I otherwise enjoyed the storyline so much, I never bothered to carp about it.

    Aw c'mon, does that mean I can never use the phrase Mad Men Anachronism Denial Squad again?

    (Even when they — in general, not always one of the lipps — do tend swoop in, to overexplain away an obvious time goof!)

  10. The definition of a joke is: if people laugh, it's funny.

    You didn't laugh, so apparently, my joke flopped, isn't a joke. Not well-written enuf — my fault, not yours.

    (But I reserve the right to bring back Mad Men Anachronism Denial Squad, if I can make it clear I'm having fun with it.)

  11. I agree with freelancewoman that this ad never would have been dreamed of. I really don't even think the idea would have occurred to them. Back then, music in ads was ALWAYS either jingles or production music, either created especially for the ad or pulled from a library of explicitly royalty-free music.

    Every ad agency would have had a vast quantity of library music. You can buy some of it today on "lounge" compilations like "Music for TV Dinners"; it's the same kind of stuff you would hear behind news programs and series themes. You still hear it today — that horrible caterwauling anonymous guitar rock that plays endlessly behind the soccer wrapups on Fox Soccer Channel comes to mind. Some of it's fantastic, though; Alan Hawkshaw, Keith Gregory, Alan Parker, Syd Dale…

    For a high-profile account like Patio, though, they absotively posilutely would have contracted for a jingle. There was a whole industry in New York doing these. If you watch old commercials, that's what you hear: custom jingles. Nowadays it's mostly car dealers and stuff, but back then, it was everybody. You couldn't get the rights to pop music; it wouldn't even have occurred to anyone.

  12. I'm a skeptic by nature, so I belong to the Mad Men Anachronism Exposure Squad, and the Mad Men Anachronism Denial Squad is our sworn enemy. I'm waiting for my costume to arrive. Something in gold tights, I hope.

    This is fifteen years later, but does anyone else remember Sammy Davis Jr.'s spectacular commercials for Alka-Seltzer, featuring "Plop! Plop! Fizz! Fizz!"? I have two versions ("big band" and "rock") on an LP of his. Party-killer, that one is.

  13. "If the Waits and Midler cases were making new law in the 70s and 80s, how would Sterling Cooper and Patio have been tripping over established law regarding this sort of thing in the 1960s?"

    That's one of the problems with using '90s copyright cases as a hypothetical example, when earlier, established copyright law in the '60s would have ALSO have prohibited the use of the Ann Margaret-clone ad.

    After the '90s, Ann Margaret herself could have additionally sued; before then, the songwriters and the movie studio would have sued.

    In each case, if they had not given permission, first.

    Mad Magazine won the lawsuits because it was a satire magazine, and satire, generally, is not considered a violation of copyright.

    However, a soft drink company is not in the business of satire, but would be perceived as ripping off the brand of the songwriters and movie studio, to try to enhance it's own brand.

    No ad agency in the civilized world would use copyrighted music, without gaining permission first. (Because they'd open their clients to a lawsuit.)

    And permission would not have been given in the 1960s for music from a recently released movie to be used in a commercial for another product (unless for a tie-in, of some sort. And even then, the songwriters would have been compensated muchly.)

    But it's unlikely the studio that released Bye Bye Birdie would have viewed that particular commercial as a legitimate tie-in. (For one, you didn't see that kind of irony in tie-in commercials back in the early '60s.)

    Ann Margaret, herself, would have been shit out of luck in the 1960s, if she felt that her image had been misappropriated. (Legally, she'd have no standing, back then.)

    But the songwriters and movie studio could have collected millions in the lawsuit, if their permission hadn't been sought and granted, first.

  14. Oh definitely, gold tights for our Mad Man Anachronism Exposure Team!

    (And, I want a Wonder Women tiara, while we're at it.)

    I live in hope that Janie Bryant will design the corset/swimsuit/whatever the hell that thing is superheroine's wear on their torso.

    Death to the Mad Man Anachronism Denial Squad! 🙂

  15. Is AMC/Lionsgate required to get permission from the trademark owners to use names like Maidenform, Lucky Strike, Maytag, John Deere, London Fog etc. in the scripts? I noticed on AMC's website that John Deere put up a disclaimer saying it was not involved in the development of last week's episode, so I am wondering if AMC/Lionsgate got into trouble for last week's episode?

  16. I don't know what the state of affairs is currently, but in the 1980s, most major movie studios had someone on staff to go through scripts, make a note of all the products/trademarked/copyrighted entities mentioned and get permission. Usually companies don't mind as long as their product is portrayed in a neutral or positive light. With the exception of John Deere, products on the show are usually portrayed in a positive light. While they probably have to clear the brand/company names, I can't imagine it's a major issue for "Mad Men".

  17. You can assume permission would have been given by either the movie studio or the song writers, if you like.

    But it’s unlikely to the point of improbable that permission would have been given by either in 1963, and even more unlikely (and improbable) that a manufacturer or ad agency would go ahead with even a test of such, which was a plot hole that bothered the hell out of me while I watched it.

    The Waits and Midler cases were making new law — Patio and Sterling Cooper would have been tripping over very established law, laws which they all would have been very aware, and respectful, of.

    But the Mad Men Anachronism Denial Squad is apparently ever vigilent!

    • But the Mad Men Anachronism Denial Squad is apparently ever vigilent!

      That’s rude. Please re-read the Comment Policy.

      I think it is fair to francesk to discuss the actual case she’s discussing, with the hypotheticals she offers, instead of arguing that her hypotheticals are implausible. That’s why they’re hypothetical, fercrissakes.

  18. Eh, I always thought they used the wrong Ann-Margret piece to promote Patio anyway.

    What they should have used is

    Hey — it’s from the same year and everything (and Fred and Barney even resemble cans of Patio soda).

    But seriously, I thought the ad was a parody. Can something be considered “commercial speech” and also a legitimate form of satire or parody at the same time?

  19. What's not positive about whacking that smug little ponce's foot off? 😉

  20. The Waits and Midler cases were making new law — Patio and Sterling Cooper would have been tripping over very established law, laws which they all would have been very aware, and respectful, of.

    I don’t think I understand this claim.

    If the Waits and Midler cases were making new law in the 70s and 80s, how would Sterling Cooper and Patio have been tripping over established law regarding this sort of thing in the 1960s? Was there even a precedent for this kind of case back then? I think we’ve only become more litigious in the last 20 or 25 years. I just don’t think people cared that much about this sort of thing back then.

    I’m also reminded of Mad Magazine, which was in its heyday in the 1960s. All they ever did was spoof TV, movies, commercials and pop culture, and they did it for a profit. People’s likenesses were used all the time. Movies and TV were made fun of, fake advertisements were made, songs based on existing songs were used in ways the authors never intended.

    In fact, in 1963, Irving Berlin, Cole Porter, and Richard Rogers tried to sue Mad over this very issue and lost.

  21. I'm really glad you posted this – the very first thing I thought when I saw that scene was the litigation implications!

  22. @Helen Bishop: Complicating things even further is the fact that some of the products/brands appearing on the show are part of promotional arrangements worked out by AMC and the producers with the companies whose products are involved. It hasn't been publicly revealed which companies are involved in this kind of product placement, but I would guess that last season's Heineken story was the most obvious example of it, as Heineken was one of the most prominent sponsors of the show then.

    Last week's John Deere reference, which figured in the kind of publicity a company would *not* want to be associated with (hey, this product could disfigure you!), most certainly had to be cleared for use first.

  23. "John Deere: we're still fighting the American Revolution!" or "John Deere: when these bloody Brits come around, it's time to put your foot down!". No?

  24. Very interesting comments from all. But now, once again, I have Bye Bye Birdie stuck in my head!

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