Product placements are sore spot
EmptySome entertainment labor attorneys warned Monday that the spread of product integration in television programming brings with it a number of legal questions but few clear answers.
"This whole issue may go the way of Y2K and avian flu, but I don't think so," said Michael Mallow, a partner with the Loeb & Loeb law firm in Century City. "There is growing concern in this area."
Shows weaving product endorsement into story lines and dialogue might come under increased scrutiny from regulators, with SAG representatives already in discussions with officials of the Federal Trade Commission over some guild concerns, Mallow said. SAG has complained that members are being asked to offer product endorsements with no additional compensation, and the WGA has cited concerns over creative control of script content.
Speaking at an entertainment labor seminar hosted by his firm, Mallow said the FTC and potentially judges might address three broader areas of concern arising from the spread of product integration:
The accuracy of what is represented;
"Material connections" between what is being pitched and who may be getting compensated for doing so; and
Liability questions related to those who endorse the products embedded in such entertainment.
Ivy Kagan Bierman, another Loeb & Loeb partner who conducted the seminar, also addressed some other new legal questions arising from the commercials production arena.
Among them was the recent SAG form letter suggesting that commercial signatories must use only guild talent in all spot productions. But signatories actually must do so only in U.S. productions, she said, and the rule doesn't apply to international productions, like commercials made in Latin America for Hispanic markets in the U.S.
Contacted for comment, a SAG spokesman said it should also be noted that talent engaged in such foreign shoots can't be engaged in the U.S. without triggering the contract. Producers also can't be found to be shooting internationally just to save money on talent, the spokesman said.
Bierman said many new clients need help understanding whether they should become guild signatories in the first place.
"Some people think that a production has to be all one or the other, (but) that's not really the way it works," she said. A DGA commercials director often will be used in combination with nonguild writers or even nonguild actors, she said.
Bierman added that she generally advises individual advertisers to avoid becoming direct guild signatories and defer that role to the production company. Production companies' parent companies also should avoid a signatory role, she added.