2013 ANA Advertising Law & Public Policy Conference

Opening Remarks

Senator Mark Pryor (D-AR)

Chairman, Communications, Technology & The Internet Subcommittee Commerce, Science and Transportation Committee, United States Senate

Ten Minute Solutions to Five of Your Biggest Problems

There’s a lot that keeps corporate counsel responsible for their company’s advertising and brand management awake at night. Every year seems to bring more problems from every corner, whether it’s the result of overly restrictive regulators, confusing technology, irate consumers, pernicious suppliers, or zealous (and sometimes jealous) competitors. Need some answers or, better yet, solutions? This session will feature five of the leading lawyers in the business – Rick Kurnit, Ron Urbach, Larry Weinstein, John Hendrickson and Felix Hofer – who will, in just ten minutes, give you the solutions they think you need, even though some may raise a few eyebrows! Find out how to pay ad agencies for their IP when they just won’t let it go, what your immediate response needs to be when attacked on social media, how to prevent algorithms from running (or ruining) your marketing, and more. In a lively sixty minutes, you’ll walk away with new ideas on how to get a good night’s sleep.

Felix Hofer

Founding Partner Hofer Lösch Torricelli

What will the Obama Administration and Congress do to Advertising and Marketing?

The 113th Congress has opened with another can kicked down the road with an agreement on new revenues from tax increases but no agreement on long-term spending and revenue issues. Driving the debate will be the potential confrontation over whether to raise the nation’s debt limit, the demand from the business community to lower business tax rates, and a long overdue restructuring of the federal Tax Code. Rep. Kenny Hulshof (R-MO) served for 12 years on the powerful House Ways and Means Committee, which has jurisdiction over the Tax Code. Hulshof was one of the authors of the 2001 and 2003 Bush tax cuts. Rep. Martin Frost (D-TX), former Senior Democrat on the House Rules Committee, helped manage the floor consideration of the 1986 Tax Reform Act and also served on the House Budget Committee and as Chairman of the House Democratic Caucus. These veteran legislators know all of the key Senators and Representatives who will be managing this debate. They will offer their insights into how tax reform, and the forthcoming debate over spending reductions is likely to evolve and impact advertising.

Martin Frost

Shareholder Polsinelli Shughart PC

Living Beyond the Edge - A Report from Washington

Washington is back at work after a grueling $6 billion election in which President Obama was reelected and the Democrats made modest gains in Congress. Now, there are real issues to be dealt with. Dan Jaffe from ANA’s Washington office will provide a very timely update on where things stand in regard to tax reform (the tax deduction for advertising may be threatened), food advertising, advertising to children, privacy self-regulation, online piracy, the tobacco court cases, and more.

Dan Jaffe

Group Executive Vice President, Government Relations ANA

Keynote Address

Doug Gansler is the Attorney General of Maryland and the current President of the National Association of Attorneys General (NAAG).  As President of NAAG, he has made “Privacy in the Digital Age” his presidential initiative. Learn how this initiative is exploring the best ways to manage privacy risks - from geo-location tracking to data collection and data breaches – and how it’s balancing the need to protect online privacy and provide consumers with control while continuing to enhance our lives and our economy.

Doug Gansler

Attorney General, State of Maryland President, National Association of Attorneys General

Have Women in Advertising Really Come a Long Way, Baby?

Despite increasing cracks in the glass ceiling in Washington and in boardrooms across the globe, the images of women in advertising have not exactly "come a long way, baby." Idealized images help sell products, of course, but everywhere you look women appear Photoshopped and in demeaning or even degraded representations. These trends have even accelerated in new media which too often lack the gatekeeper controls of major networks and publishing houses. Are these issues simply matters of good taste and decency better left to the market to regulate through self-regulation? Or is there something deceptive or unfair about showing perfect airbrushed beauties or emaciated female models in demeaning positions that should make it an enforcement issue for the government? This panel will tackle these issues from a global perspective for a thought-provoking and eye-opening discussion.

Moderator: Amy Mudge

Partner Venable LLP

A: Buying the Bridge: Beating Patent Trolls at Their Own Game

Non-Practicing Entities (NPEs), sometimes referred to in the pejorative as “patent trolls,” execute an arbitrage by buying patent assets in a context of low value, usually from an owner that lacks the resources to enforce the patents. The NPE then extracts fees from industry participants by leveraging the high cost of defending patent assertions. The NPE revenue model relies on the availability of inexpensive patents on the open market. This panel will discuss how the advertising industry can become a player in the patent marketplace to reduce the ability of NPEs to arbitrage patents that could be asserted against advertisers and agencies.

Moderator: Marc Kaufman

Partner Reed Smith LLP

B: Private AND Secure: New Expectations for Marketers and Their Counsel

Data privacy, a perennial topic on marketers’ agenda, has been joined by a new focus on digital security. On both sides of the Atlantic, corporate board members and general counsel now rank data protection at the top of their list of concerns, and government officials from Brussels to Baltimore have never been as active in proposing and enforcing data security obligations.

Learn the latest from this panel of leaders: What’s behind the media coverage of cyber-attacks?  What are the key policy proposals  to tighten up data security standards, and how will such proposals affect digital and traditional marketing strategies? What is the outlook for enforcement in 2013 and beyond? And what should marketers and their lawyers – as stewards of corporate reputation and increasing amounts of data – be doing now to meet the heightened security expectations of their companies’ investors, policymakers, regulators, and consumers?

Harriet Pearson

Partner Hogan Lovells U.S. LLP

SAG-AFTRA: One Union, One Industry

2013 is the year in which the ANA-4A’s Joint Policy Committee for Broadcast Talent Relations will negotiate a new collective bargaining agreement with SAG-AFTRA, now a united union. As the digital revolution sweeps through video production, the challenges in negotiating the $3 billion Commercials Contract, the largest collective bargaining agreement in the entertainment industry, are daunting. The negotiations end on March 31, 2013, just twelve days after the conference begins, so this session could not be timelier. Hear an update from the industry’s lead labor negotiator, ANA General Counsel, and Reed Smith partner Doug Wood, that may change the future in commercial production.

Doug Wood

Partner Reed Smith LLP

Address Collection, Data Protection and Advertising (Global Advertising Lawyers Alliance Panel)

As the European Union is working on a replacement of the 1995 EU Data Protection Directive and other countries are enacting and enforcing data protection and privacy regulations this panel from four different jurisdictions (Australia, Canada, Germany and Peru) will provide a short overview of the different legal challenges you might face when using personal data for advertising purposes.

You will hear about the legal traps (and consequences) you face when using personal data in advertising. This is not only about the form of advertising (we all know that unsolicited emails or other means of electronic advertising is illegal in many countries) but also on the requirements of the use of personal data for advertising in general. The panel will also cover the prerequisites for a valid consent for the use of personal data for advertising purposes in general and as far as special means of advertising are concerned. At the end the panel will point out where non-compliance with the data protection and privacy regulations can resolve in serious fines and/or court actions (preliminary injunctions).

Moderator: Søren Pietzcker

Partner Heuking Kühn Lüer Wojtek

Welcome

Gail Murray

Senior Business Affairs Manager Extreme Reach

COPPA: What the Newly Revised Rule will Mean for Kids Marketing and Beyond

The FTC recently announced the most significant changes to the Children's Online Privacy Protection Act (COPPA) Rule in a decade. This session will address seven of the most salient changes to the Rule - the new strict liability standard for operators, the new notice provisions, the revised treatment of cookies and other “persistent identifiers,” new categories of “personal information,” and the implications for behavioral marketing, even beyond the kids space. The session will also focus on the ways in which the safe harbor provisions strengthen the role of self-regulation or weaken it, how the FTC’s privacy principles have been “baked into” the revised Rule and may require modifications to existing corporate policies, and how companies can take actions that minimize the risk that they will be targets of FTC enforcement actions.

Moderator: John Feldman

Partner Reed Smith, LLP

Keynote Address

Julie Brill has been a leader on issues of critical importance to today’s consumers – from consumer privacy and encouraging appropriate ad substantiation to protecting consumers from financial fraud.  Hear what the FTC’s plans are for 2013 in areas such as mobile privacy, data collection and consumer protection. 

Julie Brill

Commissioner Federal Trade Commission

A: Addressing Ad-Supported Online Piracy: The ANA/4A's Best Practices (Almost) One Year Later

In May 2012, the ANA and 4A’s issued a Joint Statement of Best Practices regarding affirmative steps advertisers and agencies should take to avoid inadvertent ad support for internet sites that are primarily engaged in facilitating intellectual property theft. How have marketers and agencies implemented these Best Practices?  What has been the impact on contracts and compliance? What are the practical challenges? What tools are available now, or on the horizon, to meet them? How are leading ad networks (and technology platforms) stepping up to the problem?  What are the next steps? 

Moderator: Steve Metalitz

Partner Mitchell Silberberg & Knupp LLP

B: Bridging the Legal Communication Gap

In the world of creative development - and at advertising agencies in particular - “legal” is often considered a dirty word. But as we quickly learned at The Martin Agency, legal claims do happen. Whether it be from a misunderstanding by the creative talent as to what is and isn’t permissible, a lack of effective communication between creative and legal - or both. In this session we will review and discuss examples of "what shouldn't have been done" and one agency’s efforts to bridge the legal education and communication gap through a very powerful tool - creativity.

Christine Branin

Senior Vice President, Talent and Traffic The Martin Agency

The Wide World of Sports Sponsorship and Brand Promotion

Interested in brand promotion and protection in major sporting events such as the World Cup, Olympic Games, and the Super Bowl? Up for consideration in this session are the competing perspectives of sponsored and non-sponsored companies in access to ticket holders and nearby consumers, the legal implications of clean zones, limited duration licenses and other cooperative arrangements between host and organizing committees, law enforcement, venue organizations and featured businesses, and protections and policies afforded by trademark, anti-counterfeiting and consumer protection laws. These topics will be explored in domestic, international, and comparative law contexts.

Moderator: Professor Michael McCann

Director, Sports & Entertainment Law Institute University of New Hampshire School of Law

Luncheon Keynote

Fadi Chehadé

President & Chief Executive Officer ICANN

Legal Issues of Social Media - Case Studies from the World of Cinema

This panel will use examples taken from mobile and social media campaigns for the tentpole United States theatrical releases of “The Hunger Games,” “The Twilight Saga” franchise and other films released by Lionsgate and Summit Entertainment to illustrate the key legal issues that affect how these campaigns are structured and activated by the studios and their stable of promotional partner brands across various media channels.

Rachel Kimbrough

Vice President, Business & Legal Affairs Lionsgate

A: Intellectual Property Rights in the Digital Age

Does social media facilitate infringement? Many social platforms permit companies and individuals to link to, post, and share content they do not own. Respected pundits claim much of this activity infringes third party copyrights and other intellectual property rights. Do we really live under a legal regime that labels the majority of social media users lawbreakers? How is the law evolving to keep up with social media? How are advertisers supposed to make sense of any of this?

This presentation will explore the legal and business risks when companies use social media. Topics include social media architecture (how do API's and inline links work? Do they implicate the reproduction, display, performance and other exclusive rights of copyright owners?), permissions (what sharing is authorized by content owners - and social media platforms - and what are the limits?), "side loading” and safe harbors (does the DMCA protect platforms like Pinterest?), rights of publicity (are brands precluded from doing what everyone else can do with tweets and posts?) and fair use, revisited (has the fair use analysis changed in the age of social media? Should it change?)

Brian Murphy

Partner Frankfurt Kurnit Klein & Selz PC

B: ICANN Top Level Domains

New top level domains (TLDs) from ICANN’s vast expansion of the TLD program are expected to be active in just a few short months. Groups such as ANA and others in the business and association communities have been pushing for additional protections for brand names and trademarks. These additional protections are vital to protect consumers online. Meanwhile, ICANN is still working within the multi-stakeholder system to determine when and how to deploy new gTLDs. Hear the latest on the attempt to protect your brand names from the people who have been leading the charge.

Amy Mushahwar

Of Counsel Ballard Spahr LLP

The Future of Claim Substantiation After Pom Wonderful

In its most important decision on the substantiation doctrine in years, a unanimous FTC dealt a harsh blow to an advertiser and disappointed an enforcement staff that wanted tougher rules. In the same decision, POM Wonderful, a divided FTC argued over whether and how well the advertiser tailored its claims to match the evidence it had. Did the FTC finally settle the long simmering debates on the amount of evidence an advertiser must have to support a claim? Did the FTC make new law? How will the decision affect ongoing investigations and private litigation? Will it survive appeal? A former Director of the Bureau of Consumer Protection and an ANA member will discuss these questions and give both encouraging and discouraging news about the future of advertising law at the FTC.

Bill MacLeod

Partner Kelley Drye & Warren LLP