Uploading TV commercials to the Web has been a legal quagmire for ad agencies and marketers alike. But one company may be giving the letter of the law the biggest test yet.
Photoscape, a company that helps link commercial photographers and agency creatives, has posted on its site five commercials that appeared during the Super Bowl--Nissan Motor Corp. USA's pigeons spot, Anheuser-Busch's hamsters ad, Nike's latest Li'l Penny spot, Holiday Inn Worldwide's sex-change operation spot and Pepsi-Cola Co.'s "Star Wars" tie-in. The company taped the spots, converted them to QuickTime movies and is making them available to anyone who wants to download them and vote on the best ad in the site's poll.
While some marketers such as Miller Brewing Co. are posting copies of their TV spots on their Web sites, others have steered clear because the legal situation surrounding the Internet is cloudy. Legal experts warn that the Photoscape site represents only the latest example of how Internet companies are testing existing copyright and trademark laws, as well as rules governing the use of actors and music in environments outside those for which they were commissioned.
Photoscape says it hasn't contacted any of the advertisers to get their permission to post the ads and that "we're simply picking the ads that merit review," said Linda Watson, the site's director. Such review and criticism can be covered under fair use statutes, which usually allow media entities to publish images in conjunction with a story or review.
"If it's a purely editorial site and its real purpose is to truly criticize and review other works, then they would have a good basis for fair use," said Linda Goldstein, partner in Hall Dickler Kent Friedman & Wood, a New York law firm. "But if in fact [the site has a commercial purpose], they could very well lose that exemption."
Because the company derives income from photographers who pay it to post their work online, it could be classified as a commercial company. But even there, the issue gets cloudy. Photoscape regularly posts reviews of commercials; the reviews are written by Dan Barron, former publisher of Art Direction magazine.
Most of the Super Bowl advertisers contacted by Advertising Age declined to comment on the site until they've had a chance to review it. But a spokeswoman for Holiday Inn Worldwide said the company plans to bring the Photoscape site to the attention of its legal department.
"I don't think we're stepping out of bounds," said Photoscape's Ms. Watson. "We have considered the potential feedback we might get, but this is a time for testing the Web."
Copyright January 1997, Crain Communications Inc.