advertising sweepstakes and contests for social media for 2014 and beyond live webcast

Speaker Firms and Organization:

Gray Reed & McGraw, PCTravis Crabtree

Member

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Presented By:

July 23, 2014

1

Partner Firms:

Brownstein Hyatt Farber Schreck, LLP Kate C. Lowenhar-Fisher

Shareholder

Greenberg Traurig, LLPEd Chansky Shareholder

July 23, 2014

2

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Partner Firms:

July 23, 2014

6

Founded in 1968, Brownstein Hyatt Farber Schreck practices in the areas of real estate, natural resources, public policy, corporate and litigation. With more than 250 attorneys and legislative consultants in offices across the western U.S. and in Washington, D.C., and Atlantic City, the firm works in industries ranging from health care, real estate, hospitality, private equity and telecommunications, to technology, construction, energy, banking and finance, water and gaming. For more information about Brownstein Hyatt Farber Schreck, visit www.bhfs.com.

Founded in 1985, Gray Reed & McGraw is a full-service, Texas based law firm with more than 120 lawyers practicing in Dallas, Houston and Tyler. Gray Reed & McGraw offers a wide range of legal services including business litigation, corporate transactions, oil & gas, tax planning and litigation, real estate, healthcare, trusts and estates, labor and employment law, family law, intellectual property and bankruptcy. For more information, visit http://www.www.grayreed.com.

http://www.bhfs.com/

http://theknowledgegroup.org/%22http:/www.www.grayreed.com/%22

Partner Firm:

July 23, 2014

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Greenberg Traurig is an international law firm with approximately 1750 attorneys and governmental affairs professionals. The firm offers clients local resources and capabilities in 36 financial, business and government centers, including more U.S. locations than any other Top 10 law firm on The National Law Journal’s 2013 NLJ 250. Greenberg Traurig provides integrated legal services for clients worldwide. The firm offers multidisciplinary teams that include senior lawyers who have been the chief legal officers at major multinational companies and have spent years solving real-world problems in the business, political and legal arenas. Teams are built around client needs, ensuring lean staffing, front-end planning and flexible billing, where appropriate. Experience in multiple practice areas and a network of resources and contacts position the firm to help clients address their objectives.Greenberg Traurig serves clients from locations in Albany, NY; Amsterdam, The Netherlands; Atlanta, GA; Austin, TX; Boca Raton, FL; Boston, MA; Chicago, IL; Dallas, TX; Denver, CO; Fort Lauderdale, FL; Houston, TX; Las Vegas, NV; London, UK; Los Angeles, CA; Mexico City, Mexico; Miami, FL; Morristown, NJ; New York, NY; Orange County, CA; Orlando, FL; Philadelphia, PA; Phoenix, AZ; Sacramento, CA; San Francisco, CA; Shanghai, China; Seoul, South Korea; Silicon Valley, CA; Tallahassee, FL; Tampa, FL; Tel Aviv, Israel; Tysons Corner, VA; Warsaw, Poland; Washington, D.C.; West Palm Beach, FL; White Plains, NY; and Wilmington, DE. Additionally, the firm has established a strategic alliance with the independent law firm Studio Santa Maria in Milan and Rome.

Brief Speaker Bios:

July 23, 2014

8

Kate C. Lowenhar-Fisher

Kate counsels many of the world's premier gaming companies on regulatory issues in connection with mergers and acquisitions, corporate restructuring, reorganizations and financings. She also advises many of the firm's clients on issues related to Internet gaming, social gaming, sweepstakes, contests and promotions. In addition to her gaming work, Kate is the Pro Bono Coordinator for Brownstein’s Las Vegas office. In recognition of her pro bono contributions, ABA Journal Magazine featured Kate in its February 2013 cover story regarding lawyers who are deeply committed to providing pro bono legal services. Kate is a member of the International Association of Gaming Advisors and International Masters of Gaming Law. She received her J.D. from Emory University School of Law and her B.A. in International Relations from Stanford University.

Travis Crabtree

Travis Crabtree left a television news career after graduating from the University of Missouri School of Journalism to assist creative people embarking on innovative online endeavors. While his original legal intentions were to represent newspapers on First Amendment cases in front of the Supreme Court, the Internet is the new medium for emerging legal issues that allows him to follow those same passions for Gray Reed & McGraw, P.C.’s clients. Like journalism itself, Mr. Crabtree’s practice is evolving to stay ahead of online trends before they become expensive legal issues. He writes about those issues on his blog www.emedilaw.com.

http://theknowledgegroup.org/%22http:/www.grayreed.com/TravisCrabtree/%22

http://theknowledgegroup.org/%22http:/www.emedilaw.com/%22

Brief Speaker Bios:

July 23, 2014

9

► For more information about the speakers, you can visit: http://theknowledgegroup.org/event_name/advertising-sweepstakes-and-contests-in-social-media-for-2014-and-beyond-live-webcast/

Ed Chansky

Edward B. Chansky is a Shareholder in Greenberg Traurig’s Global Intellectual Property & Technology Practice Group. He practices in the areas of e-commerce, internet, sweepstakes, promotions, advertising, intellectual property, and trade regulation law. A trusted advisor to many national companies, he is also a frequent speaker at seminars and conferences on advertising and promotion law topics, including Advergaming, social media, social gaming, sweepstakes, privacy, gift cards, coupon and rebate offers, and charitable promotions. He is a co-author of the legal chapter in the Sales Promotion Handbook (Dartnell, 8th Ed. 1994), and a contributor to the ABA Section of Antitrust Law’s, Consumer Protection Law Developments (2009), as well as to Ian Ballon’s multi-volume eCommerce and Internet Law: Treatise With Forms, Thomson West, 3d, 2012. He has served on the Board of Directors of the Promotion Marketing Association (now Brand Activation Association), and is a former chair of the Intellectual Property Law Section of the Connecticut Bar Association. Ed graduated from Yale University (summa cum laude and phi beta kappa) in 1982, and from Harvard Law School (cum laude) in 1987. He served as a law clerk for Associate Justice Ruth I. Abrams of the Massachusetts Judicial Court.

http://theknowledgegroup.org/event_name/advertising-sweepstakes-and-contests-in-social-media-for-2014-and-beyond-live-webcast/

http://theknowledgegroup.org/event_name/advertising-sweepstakes-and-contests-in-social-media-for-2014-and-beyond-live-webcast/

In a two hour live webcast, a panel of thought leaders and practitioners assembled by The Knowledge

Group will discuss the significant issues and latest insights on how to strengthen your understanding of

Sweepstakes and Contests Advertising in Social Media for this year and beyond.

Key topics include:

• Advertising sweepstakes and contests in social media 2014: an overview

• Dos and don’ts when doing online contests advertisement

• Practical tips for a successful online sweepstakes and contests advertising

• Issues surrounding online sweepstakes and contests advertising

• Up-to-minute regulatory updates

July 23, 2014

10

Featured Speakers:

July 23, 2014

11

Travis CrabtreeMemberGray Reed & McGraw, PC

Segment 2:

Ed Chansky Shareholder Greenberg Traurig, LLP

Segment 3:

Kate C. Lowenhar-FisherShareholder Brownstein Hyatt Farber Schreck, LLP

Segment 1:

Introduction

Kate counsels many of the world's premier gaming companies on regulatory issues in connection with mergers and

acquisitions, corporate restructuring, reorganizations and financings. She also advises many of the firm's clients on issues

related to Internet gaming, social gaming, sweepstakes, contests and promotions. In addition to her gaming work, Kate is

the Pro Bono Coordinator for Brownstein’s Las Vegas office. In recognition of her pro bono contributions, ABA Journal

Magazine featured Kate in its February 2013 cover story regarding lawyers who are deeply committed to providing pro

bono legal services. Kate is a member of the International Association of Gaming Advisors and International Masters

of Gaming Law. She received her J.D. from Emory University School of Law and her B.A. in International Relations from

Stanford University.

July 23, 2014

12


Segment 1:

What Is Gambling?

• NRS 463.01962 “Wager” defined. “Wager” means a sum of money or representative of value that is

risked on an occurrence for which the outcome is uncertain.

• NRS 462.105 “Lottery” defined. “Lottery” means any scheme for the disposal or distribution of

property, by chance, among persons who have paid or promised to pay any valuable consideration for

the chance of obtaining that property, or a portion of it, or for any share or interest in that property upon

any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance,

whether called a lottery, raffle or gift enterprise, or by whatever name it may be known.

July 23, 2014

13


Segment 1:

In a nutshell…

Although state law varies, generally speaking…

• Gambling = Consideration/Risk/Stake + Chance + Win/Loss

• Lottery = Consideration + Chance + Prize

July 23, 2014

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Segment 1:

What Isn’t Gambling?

• Eliminate one of the three elements!

• Chance + Prize = Sweepstakes

• Consideration + Skill + Prize = Contest

• Consideration + Chance = No Fun

July 23, 2014

15


Segment 1:

Sweepstakes: NO PURCHASE NECESSARY

When paid consideration or non-monetary consideration is present, you must have an AMOE

• “Equal Dignity” rule

• Promotion is a marketing tool ancillary to primary business

• Draft dynamite official rules

• Consumer protection

• Avoid fine print.

July 23, 2014

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Segment 1:

Non-Monetary Consideration

• Substantial degree of effort that directly benefits the sponsor

• Fact-specific inquiry and inconsistent court opinions

• When in doubt, offer an AMOE

July 23, 2014

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Segment 1:

Contests: GAMES OF SKILL

• State law varies widely – Whether an activity is a skill game depends on where you’re playing

• Predominance/Predominant Factor Test

• Material Element Test

• Any Element of Chance Test

• Who the Heck Can Predict What That State Might Do Test

July 23, 2014

18


Segment 1:

Apologies to poker players…

• NRS 463.0152 “Game” and “gambling game” defined. “Game” or “gambling game” means any

game played with cards, dice, equipment or any mechanical, electromechanical or electronic device or

machine for money, property, checks, credit or any representative of value, including, without limiting

the generality of the foregoing, faro, monte, roulette, keno, bingo, fan-tan, twenty-one, blackjack,

seven-and-a-half, big injun, klondike, craps, poker, chuck-a-luck, Chinese chuck-a-luck (dai shu),

wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panguingui, slot machine, any

banking or percentage game or any other game or device approved by the Commission, but does not

include games played with cards in private homes or residences in which no person makes money for

operating the game, except as a player, or games operated by charitable or educational organizations

which are approved by the Board pursuant to the provisions of NRS 463.409.

July 23, 2014

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Segment 1:

State Regulation of Contests

• Some states prohibit entry fees

• Advertising restrictions

• Draft dynamite official rules

• Consumer Protection

July 23, 2014

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Segment 1:

Other Considerations…

• Federal Trade Commission

• Deceptive Mail Prevention & Enforcement Act of 1999 (Publishers Clearing House)

• CAN-SPAM Act

• COPPA

• “Do Not Call” list

• Sponsor’s Privacy Policy

• User-Generated Content

• Social Media Platform Guidelines

• Conducting Promotions Outside of the U.S.

July 23, 2014

21


Segment 1:

Introduction

Travis Crabtree left a television news career after graduating from the University of Missouri School of Journalism to assist

creative people embarking on innovative online endeavors. While his original legal intentions were to represent newspapers

on First Amendment cases in front of the Supreme Court, the Internet is the new medium for emerging legal issues that

allows him to follow those same passions for Gray Reed & McGraw, P.C.’s clients. Like journalism itself, Mr. Crabtree’s

practice is evolving to stay ahead of online trends before they become expensive legal issues. He writes about those

issues on his blog www.emedilaw.com.

July 23, 2014

22


Segment 2:

http://theknowledgegroup.org/%22http:/www.grayreed.com/TravisCrabtree/%22

http://theknowledgegroup.org/%22http:/www.emedilaw.com/%22

User Generated Content

July 23, 2014

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Segment 2:

User Generated Content

• Defamation –

1. publication of a statement;

2. that was defamatory concerning the plaintiff;

3. with the requisite degree of fault.

July 23, 2014

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Segment 2:

The Communications Decency Act

Section 230

• No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

July 23, 2014

25


Segment 2:


• Immune?

• Provider of interactive computer service

• Content provided by another

• Plaintiff seeks to treat defendant as publisher

July 23, 2014

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Segment 2:


July 23, 2014

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Segment 2:

The DMCA

Safe Harbor

• notice of policy;

• follow proper notice and takedown procedures;

• designate a copyright agent with the U.S. Copyright Office;

• no knowledge of infringement

July 23, 2014

28


Segment 2:

Sweepstakes, Contests and Lotteries

Contest, Lottery or Sweepstakes

The DTPA

The FTC – ad is deceptive if it contains a statement, omits information:

- that is “likely to mislead consumers acting reasonably under the circumstances”; and

- is “’material’ to a consumer’s decision to buy or use the product.”

An ad is unfair if –

“it causes or is likely to cause substantial consumer injury which a consumer could not reasonably avoid and it is not outweighed by the benefit to consumers.”

July 23, 2014

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Segment 2:


• Contest, Lottery or Sweepstakes

• Texas Laws

• Chapter 621- Only applies to getting someone to a sales presentation

• Chapter 622 – Only applies to sweepstakes through the mail with prizes valued at over $50,000

July 23, 2014

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Segment 2:


Contest, Lottery or Sweepstakes – Florida

• Must register with the state in advance

• Must establish a surety account or bond if prize > $5,000

July 23, 2014

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Segment 2:


Contest, Lottery or Sweepstakes – New York

• Must establish a surety account or bond if prize > $5,000

• Filing 30 days before the promotion begins

• File winners with the state

July 23, 2014

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Segment 2:


Contest, Lottery or Sweepstakes – Rhode Island

• Must register if > $500

• Must maintain records for at least six months after promotion period.

July 23, 2014

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Segment 2:


July 23, 2014

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Segment 2:

July 23, 2014

35

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July 23, 2014

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Introduction

Edward B. Chansky is a Shareholder in Greenberg Traurig’s Global Intellectual Property & Technology Practice Group. He practices in the areas of e-

commerce, internet, sweepstakes, promotions, advertising, intellectual property, and trade regulation law. A trusted advisor to many national

companies, he is also a frequent speaker at seminars and conferences on advertising and promotion law topics, including Advergaming, social

media, social gaming, sweepstakes, privacy, gift cards, coupon and rebate offers, and charitable promotions. He is a co-author of the legal chapter in

the Sales Promotion Handbook (Dartnell, 8th Ed. 1994), and a contributor to the ABA Section of Antitrust Law’s, Consumer Protection Law

Developments (2009), as well as to Ian Ballon’s multi-volume eCommerce and Internet Law: Teatise With Forms, Thomson West, 3d, 2012. He has

served on the Board of Directors of the Promotion Marketing Association (now Brand Activation Association), and is a former chair of the Intellectual

Property Law Section of the Connecticut Bar Association. Ed graduated from Yale University (summa cum laude and phi beta kappa) in 1982, and

from Harvard Law School (cum laude) in 1987. He served as a law clerk for Associate Justice Ruth I. Abrams of the Massachusetts Judicial Court.

July 23, 2014

38


Segment 3:

Public Voting . . . Is it a Good Idea?

July 23, 2014

39


Segment 3:

July 23, 2014

40

Public Voting

Inherent Tension

Maximum Viral Reach (marketing goal) vs.Legitimate voting for “best” entry.

Integrity of Promotion

Legal Risks under lottery laws

You might not like the winner you get

Loss of Public Confidence/Goodwill

Rampant cheating & need to investigate

July 23, 2014

41


Segment 3:

What to Do with Voting

Allow voting on a factor the public is qualified to measure, such as “appeal.”

Weight the voting as one factor along with other judge-determined factors

Randomize entries on site (if large number) to help assure all are seen.

Limit to one vote per person and per email address or other log-in identity.

Consider voting for “fun” and use judges to award prizes.

July 23, 2014

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Segment 3:

Voting, cont . . .

Avoid Leader Boards

Think about types of activity to prohibit, such as buying, selling or trading votes, and whether you can police the rules you write . . . .

How to investigate and respond to complaints

July 23, 2014

43


Segment 3:

July 23, 2014

44

Follow Your Rules

Malibu Rum “Banana Boat Song” Contest

Good idea to give the remixed audio track to avoid copyright issues.(More on this later)

Bad idea to announce winner before the final date and without first posting the finalists as promised in the rules.

July 23, 2014

45


Segment 3:

Follow the Platform’s Rules

Facebook – Easier than before. Use of native functionality is now allowed. Liability release is now the key. http://www.facebook.com/page_guidelines.php#promotionsguidelines.

Pinterest – No formal prohibitions, but guidelines seek to avoid “spammy” behavior and frown on requiring an entrant to re-pin content from the sponsor, or copies of rules. http://business.pinterest.com/en/brand-guidelines.

Twitter - Relatively relaxed, but also seeking to minimize spam, so avoid “most tweets win” or anything of that sort. https://support.twitter.com/articles/68877-guidelines-for-contests-on-twitter#

July 23, 2014

46


Segment 3:

http://www.facebook.com/page_guidelines.php#promotionsguidelines

http://business.pinterest.com/en/brand-guidelines

https://support.twitter.com/articles/68877-guidelines-for-contests-on-twitter

User Generated Content Legal Issues

“Viral” or “Word of Mouth” Marketing

CAN-SPAM Issue for Refer-a-Friend, 15 U.S.C. 7701, et seq. Compensation is the Key

□ How to comply as “initiator” of messages sent by consumers you have “compensated”

□ What media are covered? See Facebook v. Maxbounty, CV-10-4712-JF, March 28, 2011 (N.D.Cal.)

□ “Push” vs. “pull” technologies.

FTC Endorsement Guidelines make clear this issue is on the radar. See WOMMA Guidelines. Have a Policy!

July 23, 2014

47


Segment 3:

Endorsements & Disclosures

Cole Haan “Wandering Sole” Promotion

□ Post 5 photos from Cole Haan (what about Pinterest’s guidelines?)

□ Include hashtag “#wanderingsole”

□ Get a chance to win $1,000 . . . But nowhere would this fact be known to a viewer unless they saw the post on a page with a header disclosing the contest.

Where/how to disclose existence of contest in these types of programs? Add “contest” to the hashtag? Require a page header by the entrant? Provide a disclosure image to include with the posting (again, what about Pinterest’s guides)?

July 23, 2014

48


Segment 3:

Use of Entries

Do you need to take ownership?

Is a license enough?

Are you better off under DMCA (17 USC 512) and CDA (47 USC 230) if you are not the “owner” and are not deemed to be posting “your” material, but rather just providing a public bulletin board?

If you want ownership you need a written assignment. Is it practical to get one? Or is a license enough?

How about in foreign countries?

July 23, 2014

49


Segment 3:

Screening Entries

Will you recognize Third-Party Content?

Multiple sets of eyes (and ears) with different backgrounds, perspectives and ages can help a lot.

July 23, 2014

50


Segment 3:

Original Music?

July 23, 2014

51


Segment 3:

Self Portrait?

July 23, 2014

52


Segment 3:

What to do?

To limit exposure for User Generated Content

□ Be upfront about who you are

□ Identify how you plan to use content in the future

□ Screen but don’t edit – use technology where possible

□ Enforce stated restrictions

□ Create protective terms and secure entrant’s agreement in a binding manner

□ Secure written releases where possible

□ Take advantage of statutory protections – pay attention to housekeeping

□ Use disclaimers

□ Provide cleared elements where possible

July 23, 2014

53


Segment 3:

Going Global

Different Laws and Administrative Requirements in Every Country

Seek Local Counsel Review or Not?Factors to Consider:

□ Chance vs. Skill

□ Purchase/Payment vs. Free

□ Translation/Targeting of Countries

□ Location of Servers/Assets

□ IP/Privacy Concerns

□ Risk Tolerance

July 23, 2014

54


Segment 3:

► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type your

question in the box that appears and click send.

► Questions will be answered in the order they are received.

Q&A:

July 23, 2014

55




July 23, 2014

56

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Knowledge Group UNLIMITED PAID Subscription Programs Pricing: Individual Subscription Fees: (2 Options)Semi-Annual: $299 one-time fee for a 6 month subscription with unlimited access to all webcasts, recordings, and materials. Annual: $499 one-time fee for a 12 month unlimited subscription with unlimited access to all webcasts, recordings, and materials.

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Questions: Send an email to: [email protected] with “Unlimited” in the subject.




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ABOUT THE KNOWLEDGE GROUP, LLC.

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