Nicki Minaj vs. Taylor Swift? Dangers when Real Time Marketing Meets Social Media

It all started with a tweet. Nicki Minaj, despite her music video Anaconda breaking the VEVO record for most views and working its way into mainstream culture through memes and body positivity think pieces, was not nominated for Video of the Year at the MTV Video Music Awards. Minaj tweeted about the snub in an attempt to highlight the undercurrents of racism and sexism in the pop music awards, pointing out that music videos with similar track records by Caucasian artists (with Caucasian beauty ideals) have nearly always been nominated. Her larger point was that the artistic achievements of black people are frequently coopted and commodified by white culture, with the white celebrity praised as edgy or groundbreaking (Elvis is a classic example). However, it’s difficult to have a meaningful discussion when you’re limited to 60-character chunks, so it was almost inevitable that someone would misunderstand what Minaj was getting at. That someone happened to be Taylor Swift, who thought Minaj was taking a shot at her Bad Blood video that was nominated. It wasn’t long before the media dramatized the “feud,” even though Swift quickly realized that she misunderstood the message and apologized to Minaj, who accepted and reiterated how much she respects Swift.

They say there is no such as thing bad publicity, and maybe in the 1940s that was true, but in the era of social media and real time marketing it doesn’t seem that way anymore. Minaj and Swift could have both hurt their personal brands through careless use of Twitter, and the same lesson goes for businesses and people: think before you tweet (or Facebook, Tumblr, reddit, etc.).

Besties!

Swift (Left), Minaj (Right) | Courtesy of Swiftipedia, http://taylorswift.wikia.com/wiki/Nicki_Minaj

Real Time Marketing is marketing performed concurrently with events and interactions with consumers. Rather than relying on a specific marketing plan and executing it according to a schedule, real time marketing focuses on current trends and immediate interactions with clients. Ideally, it connects consumers with the relevant goods or services they desire within moments of their communicating it. It is a type of inbound marketing that connects the best offer for a given sales opportunity, rather than traditional outbound marketing, which aims to acquire the best customers for a pre-defined offer. This dynamic decision-making attempts to exploit a consumer interaction defined by web-site clicks or other interactions.

Too real?

Olive Garden using the “breadsticks” meme.

Social media has transformed real time marketing from an afterthought to a necessity. Businesses can now gather up-to-the-minute information about their target audiences wants, thoughts, and needs. This also allows businesses to more quickly recognized opportunities and tailor their marketing to their customers even as the customers express their wants. Taking advantage of the latest trends and memes allows businesses to strategically structure their advertisements to reflect whatever development is the most popular at that moment, improving the appeal of their goods and services. The theory goes that tailoring the relevant ad to consumers based on current trends and events will increase the likelihood of a sale because the consumer will recognize the immediate value and utility they can receive.

So what do businesses need to be aware of when using social media to market their products? There are four main things: (1) truthful advertising claims; (2) right of publicity issues; (3) FTC endorsement regulations; and (4) social media policies.

Truthful Advertising Claims

Even when using social media, advertisements must meet certain standards. For example, they cannot misrepresent what the product is to the consumer, or the company risks litigation. One of the purposes of trademark law is to protect the public from deception in the marketplace. False advertising (§ 43(a) of the Lanham Act) prohibits misleading descriptions and representations of facts in commercial advertising. If there are misrepresentations as to the nature, characteristics, qualities, or geographic origin of the goods or services then there “shall” be liability in a civil action by any person who believes they are damaged or likely to be damaged. Claims are more than what the average layperson would think of as a claim. They are any statement in an ad that may be subject to proof. Misrepresentations do not have to be intentional or literally false—they just have to convey a false impression to consumers. In fact, as of 2014 the Supreme Court of the United States clarified that corporate entities can bring these claims on behalf of consumers in Lexmark Int’l v. Static Control Components.

Not all is lost though, because generally, as long as there is a reasonable interpretation of the claim, a false advertising suit is unlikely to be successful. Puffery in advertising is still allowed, commonly defined as “publicity or acclaim that is full of undue or exaggerated praise.” The thought is that no “reasonable person” would take the claim literally, so it is not misleading. Puffery is characterized by subjective opinion rather than fact, and often uses hyperbole (i.e., “the best a man can get,”) to get its point across. So, businesses can still hype up their product while maintaining credible claims. Ask yourself this before using social media to market your business:

  • what claims does the ad make;
  • are they true and not misleading; and
  • can the claims be adequately proven?

Right of Publicity Issues

Interaction with consumers is one of the keys of real time marketing, but it can cause issues especially when dealing with celebrities. The right of publicity is an individual’s right to control the commercial use of their identity. It protects against the unauthorized commercial exploitation of a person’s likeness, including their name, picture, and voice, among other things, and is governed by state law. It can become a much larger issue on social media more quickly than you would think. For example, if a celebrity visits your business in their spare time and someone takes a picture and puts it on twitter, and then you re-tweet it on your business’ page, that celebrity could have a viable cause of action against you. The claim would be that you used their right of publicity to create an unauthorized celebrity endorsement. And while all people have a right of publicity, your average person is unlikely to bring such a claim because their “endorsement” is much less valuable. So it is important to consider the type of person you retweet and know whether certain celebrities are viewed as litigious or not.

FTC Endorsement Regulations

The FTC requires that “material connections” between endorsers and businesses be disclosed in advertisements. The FTC guidelines emphasize that advertisers may be liable for false statements made through endorsements, and that the endorsers themselves may be liable too. Thus, it is important to disclose when somebody is paid to endorse your product, especially on social media where it is easy to believe somebody, even a celebrity, may be spontaneously saying how great something is. So, unless a celebrity truly does love your product and wants to say so for free, paid endorsements on social media should include a hashtag such as #ad, #sponsored, or even a link to your website clearly stating that they are a paid endorser. The important thing is to be truthful; there is nothing wrong with capitalizing on a celebrity who is enthusiastic about your product in their spare time.

It is also smart to keep in mind, that when interacting with consumers or celebrities on social media, that you cannot control where the conversation goes. You should be mindful of who is responding to these things, how they will respond, how quickly, and what risk there is depending on the topic of discussion. Therefore, while it is smart to interact with your consumers, a calculated delay is not necessarily a bad thing.

Social Media Policy

Lastly, it is imperative that your company have a social media policy for your employees and that your website includes a privacy policy, terms of service, and a Digital Millennium Copyright Act (DMCA) takedown policy. The privacy policy should address, at minimum, (1) notice; (2) purpose and choice; (3) access to information; (4) security; and (5) enforcement. The policy should provide notice that information is being collected, how it will be used, when it may be disclosed to third parties, and the consequences of refusing to share information. The purpose for the information collection should be disclosed, as well as whether it may be used beyond the original purpose, and an opt-in or opt-out measure. Consumers should be able to access the information collected on them, and have means for correcting inaccuracies. Your privacy policy should also include security measures to protect the information and to ensure its accuracy. Lastly, it must be enforceable. The policy should include procedures to address infractions, and you should pay special attention to ensure that your website complies with your policy.

The terms of service are the “rules” that your website users agree to follow in order to use your site; they should prohibit certain user and competitor activities as needed, and include user rights and responsibilities. It should also have a disclaimer to limit liability for damages incurred by users, and possibly include a mandatory arbitration clause on an individual basis. Like your privacy policy, there should be notice when the terms of service change. Your DMCA takedown policy (§ 512 of the Copyright Act) allows you to partake in the safe harbor provisions of the DMCA if your website contains material copyrighted by another. The DMCA requires that you have a designated DMCA agent who receives take down notices and must “expeditiously” remove the material. The notice must be in writing, identify the claimed infringed, identify the material to be removed, and include a statement that the complaining party has a good faith belief that the use of the protected work is not authorized. It must also be signed by the owner of the copyright or their authorized agent and include a statement that the information in the notice is accurate. It must also state, under penalty of perjury, the notice writer is authorized to act on behalf of the copyright owner. Your DMCA agent information must be available through your website and provided to the federal Copyright Office.

Your social media policy should be given to all your employees and cover use of your company systems, personal use, intellectual property and confidential information, professional networking, and emphasize that your employees are not spokespeople (depending on their position) and that they should be clear about this when discussing the business. It may also include a right to discipline depending on context. For marketing purposes, it’s best to designate an official representative or two and then create guidelines for what they can and cannot say and how your brand may be used.

Even though this time around T-Swift and Nicki Minaj escaped unscathed, both have huge social media presences that allow them to interact with their fans in real time and bolster their images (or stain them). Businesses can do the same, they just need to be a little more wary to ensure they avoid any “bad blood.”

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