Our clients sometimes ask us if advertising is really like the show “Mad Men.” Like many things, the shows highlights some realities with a dramatic and fictional exaggeration. However, while the ad agency (and accompanying storyline) was fictitious, many of the brands mentioned in the show were not, such as Lucky Strike cigarettes, Bethlehem Steel, American Airlines, Jaguar, Hilton Hotels, and Coca-Cola. Since the show ran for seven seasons, one can imagine the huge amount of products and companies that were featured on the show. So, while binging over a rainy weekend, did you ever wonder how the show successfully and legally managed to write these iconic brands into the series? There are two overarching aspects of this issue.
The Federal Communication Commission (FCC) has addressed the issue of using television platforms for product placement (considered a form of embedded marketing) and its impact on the public interest. Given that the plot of “Mad Men” is fictional entertainment (which is covered by First Amendment protections), it is very difficult to separate the advertising from the television medium. Additionally, the advertising is woven into the storylines and does not directly solicit any sales from the viewer. As a result, the FCC ruled that any marketing and advertising provided by the numerous real-life brands on the show could not be separated by the constitutionally-protected entertainment aspect, and therefore the content could not be regulated.
Additionally, the fictitious nature of “Mad Men” ensures that nearly all product placements have First Amendment protections. The general legal provision of using brand names in works of fiction centers around avoiding four trademark issues:
- Infringement (use of a trademark to cause confusion)
- Dilution (using a trademark in such a way as to make it less distinctive)
- Tarnishment (using a trademark in a non-flattering manner)
- Defamation (portraying a trademark as dangerous or non-operational)
Therefore, using an established brand name in a work of fiction is becoming more of an accepted practice for the creative entertainment industry. As a matter of fact, many brands often reap real-world benefits of product advertising in works of fiction without the product placement price tag. In the 1982 movie E.T.: The Extraterrestrial, the producers used Reese’s Pieces candy as a major story element in the film. As a result of this placement, sales of the candy went up 70% in the first month of the film’s release.
Just some food for thought the next time you’re watching “Mad Men,” while enjoying your Utz potato chips, drinking a Heineken beer, and planning your next getaway on American Airlines to a Hilton hotel somewhere abroad…if you know what we mean.
Dykes, D. (2016). “Product Placement in “Mad Men.” Retrieved from https://libres.uncg.edu/ir/asu/f/Dykes,%20Dave%20P.%202016.pdf
Fowler, M. (2010). “Can I Mention Brand Name Products in my Fiction?” Rights of Writers. Retrieved from http://www.rightsofwriters.com/search/label/Brand%20Names
Yu, C. H. (2006). “Ethical Issues of Product Placement and Manipulation.” Retrieved from http://www.creative-wisdom.com/education/hps/placement.pdf