As SHOOT celebrates a milestone, its 65th year of publication, we continue a recently launched series of interviews and features that will run throughout the summer on SHOOTonline and in SHOOT‘s newsletters and special PDF Issue with digital distribution in which industry executives, creatives and artists reflect on the changes they’ve seen over the decades, as well as essential dynamics that have endured. These folks–from different sectors of the business–will also share their visions and aspirations for the future.
Perhaps most importantly, this special SHOOT coverage enables us to look back on the industry’s history, learn from it, and plum relevant lessons that will help us now and beyond. Mark Twain once famously said, “History doesn’t repeat itself but it often rhymes.” Twain’s insight underscores the importance of the past and its role in helping us better shape today and tomorrow.
Such perspectives are invaluable yet sadly often not properly considered as society’s tendency at times is to overlook history and its significance. Additionally, the new generation navigating our industry sometimes isn’t aware of the relevant history, having not experienced it firsthand. Hopefully helping to close those gaps will be SHOOT’s 65th Anniversary coverage which seeks to provide historical context and to benefit from its relevance to the present and what may lie ahead.
This week we connect with preeminent advertising industry lawyer Jeffrey A. Greenbaum, managing partner at Frankfurt Kurnit Klein + Selz (FKKS), to gain context on where we’ve been, where we are, and where we’re going. SHOOT reaching out to Greenbaum for his legal expertise is nothing new. Greenbaum has been a regular panelist over the years at SHOOT’s annual New Directors Showcase Event at the DGA Theatre in NYC, He and his colleagues at FKKS have also authored assorted informative, insightful installments of the “Legalease” column for SHOOT.
Greenbaum has extensive experience representing advertisers, ad agencies and media companies on advertising, branded entertainment, and intellectual property matters. He advises clients on a wide variety of advertising-related matters, including advertising regulation, rights clearance, social media, promotions, SAG-AFTRA and other union issues, network clearance, and global clearance. He helps clients negotiate virtually any type of advertising-related agreement, including ad agency agreements, production-related agreements, talent contracts, intellectual property licenses, and sponsorship deals. He also regularly represents advertisers in connection with advertising litigation, including federal, state and local regulatory investigations. FKKS represents many of the leading ad agencies, commercial production companies, and corporate brands, as well as some of the world’s foremost publishers, producers, directors, distributors, actors, celebrities, models, writers, financiers, charitable organizations, and online content and service providers.
Here are reflections and observations from Greenbaum in response to several questions posed by SHOOT:
SHOOT: What have been the most significant legal cases, developments and/or precedents in the commercialmaking/advertising business during your industry tenure? What lessons learned from those milestones can be applied or are relevant to today’s legal issues?
GREENBAUM: I’ve been an advertising lawyer for nearly 30 years–and I’ve seen dramatic changes in the legal landscape affecting brands, advertising agencies, and production companies during that time. While there’s no way I can highlight all of the most important legal changes that impacted the ad business, here are a few highlights.
In the ‘90s, federal and state regulators brought enforcement actions against big car companies–and their advertising agencies–alleging that they engaged in false advertising. It was a big wake-up call to agencies, and others working in advertising, that it’s not just the brands who are responsible for ensuring that their advertising is truthful and not misleading. Agencies, production companies, endorsers, and others who are playing a role in promoting a brand have their own obligations to ensure that the advertising they are helping to create tells the truth.
Not long after that, with the explosion of online marketing, one of the key issues that regulators focused on was the concept of “transparency.” Although marketers have the ability to create content that looks like editorial or entertainment content, and can engage influencers to promote their products in social media, and can create new types of ad placements that don’t actually appear to be advertising, regulators have sent a clear message to marketers: consumers have the right to know when they are being advertised to.
More recently, regulators in the United States and around the world have been raising hard questions about whether online marketers are engaging in “dark patterns”–which are essentially online design choices that manipulate users into taking actions that they might not otherwise take. Think of that countdown clock that pushes consumers to make a purchase faster. Or that second pop-up that tells you what a big mistake you are making by not choosing to buy that add-on. Or that opt-out screen that doesn’t really give you the ability to definitely opt-out (“yes” or “ask me later”). While at first glance this might just sound like effective advertising, regulators are saying loud and clear that marketers need to consider not only whether they’re telling the truth to consumers, but whether they are treating them fairly.
SHOOT: What are the most pressing legal issues for the commercial production community today and looking towards the future?
GREENBAUM: For the commercial production community–and for the advertising industry as a whole–the use of generative AI is raising fundamental–and, as yet, unresolved–legal issues. For example, is the content that is created by a generative AI tool producing material that is infringing third party rights? Is the content that is being created original and unique–or is some other production company that uses similar prompts going to end up producing content that looks just like yours? How are you going to ensure that the content you produce through generative AI tools–which may have limited copyright protection–doesn’t get copied and used by others? When you use a generative AI tool to show your client’s product in action, how are you going to substantiate that you’re showing performance that reflects the generally expected performance of the product? And what are you going to do about the fact that so many of the contracts that so many companies are using don’t take into account that generative AI content is different than other content and presents different challenges and risks?
Another important issue that the commercial production community urgently faces–along with the rest of the advertising industry–is how do you demonstrate the value that you’re contributing to a client’s advertising? If advertising can be crowdsourced, if a commercial can be shot on a mobile phone, if a generative AI tool can produce a new campaign almost instantly, and if it can all be shared organically in social, brands are going to continue to ask hard questions about what role agencies and production companies are playing today and how to value that contribution.
SHOOT: In a SHOOT NDS/Directors-Producers Forum Event session a couple of years ago, you made an observation that resonated with us. You described legal expertise as “an enabler” when it comes to the world of content. Some may worry that legal considerations prevent one from diving into a still yet to be fully defined realm. But the reality is that once you know the legal framework, rules, roadblocks and areas of liability, you then have the ability to intelligently proceed, no longer encumbered by the fear of the unknown. Could you expound upon that observation in terms of how that dynamic has applied to you and your clients in the brave new content world?
GREENBAUM: Providing a “no” is easy. Getting to a “yes, we can produce that” is often a lot more difficult. When marketers, ad agencies, and production companies develop a deeper understanding of truth-in-advertising rules, and the laws governing intellectual property, this knowledge becomes a powerful tool that they can use to produce effective advertising using the newest technology, while taking reasonable risk. There’s never been a problem I couldn’t solve when a chief marketing officer or a creative director decides to call me directly to think through a problem. When you’ve got a clear understanding of the rules that apply–and you’re not just dealing with people’s fears about what could possibly go wrong–you have the ability to get past that “no.”
SHOOT: What do you look back on as among your most significant accomplishments professionally?
GREENBAUM: Over the years, there have been plenty of big deals, big wins, and big problems solved–and big problems avoided. For me, though, what I’ve found most gratifying–and what keeps me going after all of these years–is the relationships. Clients come to me because they need help with something and they trust that I can help them. Whether it’s helping a brand or an agency negotiate with an A-list celebrity for a new campaign, or dealing with a serious false advertising or infringement issue, or helping a director think through a move to a new production company, or just working on the day-to-day advertising issues that brands, ad agencies, and commercial production companies face, it’s all about helping the clients. I love being able to help clients achieve what they want to achieve and solve the problems that they need help solving. And one of the most gratifying things is those relationships that continue for decades.
SHOOT: When did you start reading SHOOT and what were you doing then? How has SHOOT been useful to you?
GREENBAUM: I joined Frankfurt Kurnit in 1997 in order to become an “advertising lawyer.” Shortly after I arrived at the firm, our firm’s founder, Mike Frankfurt, told me that, as part of being an advertising lawyer, I was going to represent commercial production companies, directors, and others working in the commercial production industry. I started reading SHOOT soon after that. And, I loved when SHOOT arrived in the (physical!) mail every week and I could read about all of the great that work our clients were doing. It was obvious to me back then (as it is today) how essential SHOOT was in keeping the community connected and informed. And when the opportunity came up for me to write the “Legalease” column for SHOOT, I jumped at it.
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Publisher’s note: Thank you to Jeffrey A. Greenbaum for contributing to our series of 65th Anniversary articles which you will see over the next few months.
Here’s a fun look back at some of the content and Ads relating to our 50th & 40th Anniversaries.
Click Here to see a series we published in the months leading up to our 50th Anniversary Issue which includes
interviews with Lee Clow, Robert Greenberg, Bob Giraldi, Larry Bridges, Rich Silverstein, Stephen Dickstein, Phil Geier, Joe Pytka, Bryan Buckley, Joe Sedelmaier, Dan Weiden, Susan Credle, Noam Murro, Tony Granger, Kevin Roddy, Kristi VandenBosch, David Lubars, Jon Kamen, Stefan Sonnenfeld, Tom Kuntz and Lance Accord.
Click Here to see the Ads leading up to the 40th Anniversary Issue. A big hit at the time, they are still fun to look at. The Ads featured Cheryl Berman, Alex Bogusky, Texas East, Nitza From, Llye Greenfield, Matt Miller, Tom Mooney, Barbara Mullins, David Perry, Joe Pytka, and Scott Ross.
If you’d like links to some of the other great content from our 40th and 50th Anniversary Issues and to receive SHOOT’s special 65th Anniversary SHOOTonline and SHOOT Magazine “Retro Ad Rates,” please contact SHOOT publisher Roberta Griefer at rgriefer@shootonline.com
