The Seven Circles of LCA Hell: or How I Learned to Love Advertising Law

I was reading this story about a game developer that lawyered-up against a startup, and I thinking today about how much freedom there is when you’re marketing at a startup company. Compared to Microsoft, that is. At Microsoft, I often used to joke about the Seven Circles of LCA Hell – or the 7 layers of lawyers I had to go through to “ship” a marketing campaign.

The First Circle: The Legal Generalist

Susan was my Legal Generalist. She worked in LCA, short for Legal and Corporate Affairs. Whenever I turned up on her doorstep, she knew it was going to be trouble. I’m sure I was the bane of her existence, and I know she was certainly my least-favorite meeting of the week.

It was Susan’s job to review my marketing plans and judge me quietly. She would ask innocent questions, make little notes on her printouts, and purse her lips. Eventually, she’d send me away to go complete some online form, and I’d have to schedule a follow-up meeting a couple days later.

The biggest part of Susan’s job was to understand my plans, and then identify which-other lawyers she needed to bring-in – which, in the case of my ambitious marketing campaigns, usually meant all-of-them.

Because of the nature of what I was doing, in 2009, as Social Media was becoming an actual thing and not just a marketer’s hobby, Susan and I also had to learn a lot about the Terms and Conditions for using tools like Facebook, Twitter, and YouTube. There was no such thing as an expert “back then,” and companies like Wildfire didn’t exist to provide expertise, and many of the companies that did exist wanted $10K per campaign execution. Now, I think Social Media Law may become it’s own discipline, or be baked-so-deeply-into marketing that it’s commonly-understood component of what all these other marketing-lawyers do. But 3 years ago – that wasn’t the case -and out of a thousand marketers at Microsoft, I was probably the furthest “out-there” in terms of how we were using these services. So we had to make it all up.

The Second Circle of Hell: Trademarks

This one was usually a cake-walk. If we’re calling this campaign the “Summer in the Sun” campaign, and you can win a “Summer in the Sun” for doing something, then you have to make sure no one else has trademarked “Summer in the Sun” already, and, if they have, they have to be doing business in a non-competitive industry, so that their campaign cannot possibly be mistaken for yours.

The Third Circle of Hell: Advertising Law

Inevitably, there would be a claim. Something like “Office 2007 is the most powerful tool and key to your success after graduation.” As soon as you make a claim, you have to make sure it’s something that can be substantiated. Now, what if it goes further – what if it’s “Save up to 70% off Office 2007” – now Susan’s hair is turning orange. The AdLaw person’s job is to know how we can substantiate the claim, and how to put a ‘*’ at the end of the claim, and a disclaimer at the bottom, that backpedals and covers our ass. Invariably there would be little ‘*’ stars all-over my campaigns by the end. Her job was essentially to make sure we told the truth, and told a truth that we couldn’t get sued over. So, for example, if we’re showing an image of the Office 2007 box on the site, but this version of Office doesn’t come in the box, do we need a disclaimer? If you’re saving 70% – what is that compared to? What version of Office are we talking about?

The Fourth Circle of Hell: Branding

The brand person’s job was to understand how we were using the Microsoft, Office, Windows, and Xbox brands. For example – if we’re using the Office brand – is it the right version of the logo? If we’re using the word Microsoft, it needs to be white letters on black background. No color. The logo can’t be overlaid on-top of a picture or box – it needs its own white-space. If we’re using a partner’s brand – like Oddcast – which was a social media startup that was powering an avatar-technology we were using for a social game, how was Oddcast’s logo being displayed? It needs to be displayed next-to our logo – not above or below.

The Fifth Circle of Hell: Promotions

The Promotions person’s job was to understand anything we were doing regarding sweepstakes or contests. This part was maybe the most confusing, because gaming-laws changed from state-to-state across the country, and if you’re going to award someone a prize worth more than $600, they actually have to pay taxes on the prize, and you actually have to notify them of that fact. Let’s say this is a “Summer in the Sun” campaign, and one lucky winner is going to get a free “Summer in the Sun” trip to Mexico. Well, how are you going to select that person? Is it random? Then it’s a sweepstakes. But if it’s a sweepstakes, then everyone needs to be equally-eligible, and you can’t require them to purchase your product to be eligible, so you may have to rewrite the entry-process on the website. If there’s some skill required, then it’s a contest. And either way, you’ll need Terms & Conditions for your sweepstakes or contest, stating that there’s no purchase necessary, employees aren’t eligible, how you’re going to select the winner, when you’ll select them by, and what exactly the prizes will be.

The Sixth Circle of Hell: Privacy

This one was constantly a massive pain, and oftentimes cost thousands of dollars to fix. If you’re going to give people a prize, you have to somehow capture their email address or other contact info. If you have that info, you need to disclose how that info is going to be used, and which parties – your company, the marketing agency, the database company hosting the server that the campaign is happening on, etc. – will have access to the personal information. It also might be nice, if you’re capturing their personal info, to keep that so you can re-market to them later – but that requires opt-in boxes, and more re-coding to add opt-in boxes had to be done, and more Terms & Conditions had to be written, so they know exactly what they’re opting-into.

The Seventh Circle of Hell: Localization

I can’t really remember what this one was. Maybe something about whether this campaign, and all the words used in it, and the images used in it, are going to offend anyone, anywhere, in any language. This was most-important for campaigns that would be used overseas, but in my case, since I only managed the United States, this wasn’t a big deal for me.

Then, when all was said and done, and meetings upon meetings, and conference calls upon conference calls, had all stirred these lawyers into a mad tizzy until I had finally worn them all out, I would finally launch a marketing campaign, usually a couple months behind schedule at this point, and the hacked-to-death frankenstein, replete with little stars and links to Ts & Cs and opt-in boxes and watered–down claims and big-blocky-logos, would lumber out into the world, to die a slow and painful death.

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