U.K. to Ban Gender Stereotypes in Ads
By Jeffrey S. Edelstein, Partner, Advertising, Marketing and Media
Gender stereotypes in advertising will be banned as a result of new guidelines that will be promulgated by the main advertising regulators in the United Kingdom and go into effect in 2018.
In April 2016, the U.K.’s Advertising Standards Authority and Committee of Advertising Practice initiated a project to determine whether existing advertising codes and enforcement took proper account of the relevant evidence regarding gender stereotypes. After analyzing existing literature about gender stereotyping in advertisements, holding seminars with a range of stakeholders and conducting new research into public opinion, the ASA and CAP published a report.
“Depictions, Perceptions and Harm: A report on gender stereotypes in advertising” identified six categories of gender stereotypes: roles (occupations or positions usually associated with a specific gender), characteristics (attributes or behaviors associated with a specific gender), stereotype nonconformity (mocking people for not conforming to stereotype), sexualization (portraying individuals in a highly sexualized manner), objectification (depicting individuals in a way that focuses on their bodies or body parts) and body image (depicting an unhealthy body image).
“Gender stereotypes have the potential to cause harm by inviting assumptions about adults and children that might negatively restrict how they see themselves and how others see them,” the report found. “To this end, ads that feature gender stereotypes have the power to cause harm by contributing to unequal gender outcomes, although advertising is understood to be only one of many different factors that contribute, to a greater or lesser extent, to unequal gender outcomes.”
The report noted earlier guidelines that banned ads that objectify or inappropriately sexualize women and girls, and ads that suggest it is acceptable for young women to be unhealthily thin. Nonetheless, it found that more needed to be done.
“However, the evidence suggests that a tougher line needs to be taken on ads that feature stereotypical gender roles or characteristics which, through their content and context, may be potentially harmful to people,” the CAP and ASA said. While the report acknowledged it would be “inappropriate and unrealistic” to prevent ads from depicting a woman cleaning, for example, “new standards on gender stereotypes might elaborate on the types of treatments that might be problematic.”
The report provided three examples of types of depictions that are likely to be problematic: an ad that depicts family members creating a mess, while a woman has sole responsibility for cleaning it up; an ad that suggests a specific activity is inappropriate for boys because it is stereotypically associated with girls, or vice versa; and an ad that features a man trying and failing to undertake simple parental or household tasks.
For the next step, the CAP and ASA said new regulations will be forthcoming. “CAP and the ASA consider the report provides an evidence-based case to strengthen their regulation on the use of gender stereotypes in ads which, through their content and context, might be potentially harmful to people.”
CAP intends to develop new standards, on which it will make public a progress report before the end of 2017. Training and advice on the new standards will be delivered “in good time” before the standards come into force, CAP added.
To read the report, click here.
Why it matters: The U.K. is not the first country to ban gender stereotypes in ads. The new standards will add the country to a list including Canada, Finland, France, Germany, India, Ireland, Italy, Norway, South Africa and Spain, among others, that prohibits such stereotyping. The United States has a limited restriction in place, with the Children’s Advertising Review Unit enforcing more general guidelines that “advertisers should avoid social stereotyping and appeals to prejudice.”
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Ninth Circuit Tosses Deception Challenge to Gerber’s Labels
By Jeffrey S. Edelstein, Partner, Advertising, Marketing and Media
The U.S. Court of Appeals, Ninth Circuit, reinstated the dismissal of most of a challenge to the labels on Gerber’s line of baby food.
Natalia Bruton filed suit in 2012, alleging that Gerber Products Co. deceived consumers with illegal nutrient content claims for its baby foods, such as “as healthy as fresh,” “natural,” and an “excellent source” of various vitamins and minerals. A California federal court judge dismissed the case in 2015 and the plaintiff appealed.
After a three-judge panel initially reversed dismissal in an April memorandum disposition, Gerber sought a rehearing and scored a partial victory when the court found there was no genuine dispute of material fact on Bruton’s claims that the labels were deceptive in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumer Legal Remedies Act (CLRA).
Bruton’s theory of deception did not rely on the literal falsity of Gerber’s labels, the court explained. Instead, she contended that the combination of Gerber’s product claims and the lack of claims on competitors’ products made Gerber’s labeling likely to mislead the public into believing that Gerber’s products were of a higher quality than its competitors’ products.
Although the plaintiff’s theory of deception may be viable, as California courts have held that even technically correct labels can be misleading, Bruton failed to make her case, the panel said. “[E]ven assuming the validity of Bruton’s theory, the record does not include sufficient evidence to create a genuine dispute of material fact for trial as to consumer deception under her theory,” the court wrote.
The labels on competitors’ products made many of the same claims as Gerber’s labels, the court noted. “A reasonable jury comparing the labels side by side could not rationally conclude that Gerber’s labels were likely to deceive members of the public into thinking that Gerber’s products were of a higher quality than its competitors’ products that made the same type of claims,” the panel said.
Further, Bruton’s testimony about being misled while shopping was “vague, uncorroborated and self-serving and does not tend to show that Gerber’s labels were misleading or deceptive,” the court added. “We hold that the record does not contain sufficient evidence to create a genuine dispute of material fact for trial as to the outcome under the reasonable consumer test.”
The Ninth Circuit affirmed summary judgment in favor of Gerber on Bruton’s claims the labels were deceptive in violation of the UCL, FAL and CLRA. However, the panel said other claims—unjust enrichment, unlawful labels under the UCL and plaintiff’s motion to certify the class—could move forward.
To read the order in Bruton v. Gerber Products Company, click here.
Why it matters: Although the Ninth Circuit agreed with Gerber that Bruton failed to state a claim that its labels were deceptive in violation of the UCL, FAL and CLRA, the panel did note that the plaintiff’s theory—that even technically correct labels can be misleading—is viable under California state law.
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Copyright Suit Requires Fair Use Analysis
By Jesse M. Brody, Partner, Advertising, Marketing and Media
A fair use analysis is required before a copyright suit against “appropriation artist” Richard Prince can be dismissed, a New York federal court judge decided this week, declining to grant a quick win.
The dispute is strikingly similar to prior litigation against Prince, who copies, reproduces and modifies existing works to create his own art. In the prior case, Prince used 35 photographs of Rastafarians without the photographer’s permission to create his own images by enlarging, tinting and coloring the photos. The photographer sued and in 2013, the U.S. Court of Appeals, Second Circuit, ruled that Prince’s use of the photographs was transformative and constituted fair use.
Prince’s latest collection is the subject of the current dispute. As a purported commentary on social media in the “New Portraits” exhibition, Prince took images from Instagram and added his own comments. In one instance, he took an image depicting a Rastafarian man standing shirtless against a white background, smoking a marijuana cigarette. Cropping the image slightly, Prince left the number of likes and comments on the Instagram post, and added his own: “Real Bongo Nyah man a real Congo Nyah [emoji of a raised fist].”
Dubbed “Untitled,” the image appeared among the dozens in the exhibit and on a billboard near a Manhattan highway promoting the gallery show. Prince also used the image as part of a Twitter compilation.
Professional photographer Donald Graham, who took the photograph in 1996 (but had not posted it to Instagram), sued Prince for copyright infringement. Relying on the Second Circuit opinion, Prince moved to dismiss based on a defense of fair use.
But U.S. District Court Judge Sidney H. Stein was unwilling to let Prince off the hook that easily. “Because the affirmative defense of fair use requires the Court to engage in a fact-sensitive inquiry that cannot be completed—in this case—on a motion to dismiss the complaint, defendants’ motion is denied,” the court said.
Courts generally do not address the fair use defense until the summary judgment phase, the court noted, and Prince could not establish that “Untitled” was transformative as a matter of law.
Reviewing the four-factor test of fair use, Judge Stein found that the purpose and character of Prince’s use did not demonstrate sufficient transformation to end the dispute.
“In this case, because Prince’s ‘Untitled’ does not make any substantial aesthetic alterations to [Graham’s photograph], a simple side-by-side comparison of the two works is insufficient to show that Prince made transformative use of Graham’s original as a matter of law,” the court said. “Viewing Graham’s [photograph] and Prince’s ‘Untitled’ side-by-side, it is evident that Prince’s work does not belong to a class of secondary works that are so aesthetically different from the originals that they can pass the Second Circuit’s ‘reasonable viewer’ test as a matter of law.”
“Untitled” simply reproduced the entirety of Graham’s photograph with some de minimis cropping in the frame of an Instagram post, along with a cryptic comment written by Prince, the court wrote. “Given Prince’s use of essentially the entirety of Graham’s photograph, defendants will not be able to establish that ‘Untitled’ is a transformative work without substantial evidentiary support.”
As for the other fair use factors, Judge Stein reiterated that more evidence was needed for the commercial use prong, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect on the potential market for the copyrighted work. Similarly, the court said it would be premature to dismiss the claims based on the billboard and Twitter post.
“To the extent that the Court is able to evaluate the statutory fair use factors on the basis of the facts alleged in the Complaint, the Court concludes that each of them weighs against a finding that Prince’s ‘Untitled’ makes fair use of [Graham’s photograph],” the court wrote.
To read the opinion and order in Graham v. Prince, click here.
Why it matters: In a reversal of his previous success with a fair use defense, Prince was denied a motion to dismiss and appears to face an uphill battle in convincing the court that his use was transformative.
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Ohio State Football Player Files Lanham Act Suit
By Richard P. Lawson, Partner, Consumer Protection
In the latest attempt by student athletes to gain compensation for use of their images, an Ohio State University alumnus has sued the school for using his likeness, long after he graduated, without providing compensation or obtaining consent.
Former linebacker Charles C. Spielman played on the school’s football team from 1984 through 1987 and holds the school’s record for solo tackles. He followed his college career with 12 years in the National Football League. Filing suit on behalf of himself as well as current and former Buckeyes football players, Spielman also named IMG College as a defendant and added the school’s corporate partners Honda and Nike as co-conspirators.
“While OSU and its for-profit business partners reap millions of dollars from revenue streams including television contracts, rebroadcasts of ‘classic’ games, DVD game and highlight film sales and rentals, ‘stock footage’ sales to corporate advertisers and others, photograph sales, and jersey and other apparel sales, former student-athletes in the Class whose likenesses are utilized to generate those profit-centers receive no compensation whatsoever,” according to the complaint.
For some players, the violations continue in perpetuity, as the use of their images continues long after they stop attending the school or participating in the football program, Spielman said. As part of a licensing deal with Honda, for example, Ohio State displays banners around its stadium featuring the images of former players (including Spielman), while Nike has a licensing deal with the school to sell “Legends of the Scarlet and gray” vintage Ohio State jerseys.
In addition to running afoul of the Lanham Act, the actions of the defendants violate the Sherman Act “by engaging in a price-fixing conspiracy and a group boycott/refusal to deal that has unlawfully foreclosed class members from receiving compensation in connection with the commercial exploitation of their images following the cessation of intercollegiate athletic competition,” the lawsuit claimed.
Spielman requested an injunction halting the use of the plaintiffs’ images without compensation or consent, as well as monetary damages (trebled under the federal antitrust laws), disgorgement and restitution.
To read the complaint in Spielman v. IMG College, LLC, click here.
Why it matters: The defendant’s continued use of the images of Spielman and his fellow football players long after they graduate or stop playing football “wipes out” their future ownership interest in their own images, the suit alleges, and creates a “perpetual system of unjust usage and restriction.” The complaint notes that all the major professional sports have identified and utilized group licensing methods to share revenues among teams and players, which demonstrates that less restrictive alternatives than the current model do exist. The complaint is the latest effort by college athletes to obtain compensation for use of their images. They have sought recovery under copyright law and sought damages from video game manufacturers over realistic avatars.
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