Posts Tagged: Contests

Hey That’s Me Drinking That Beer! UGC Rights at Issue in Beer/Photo Lawsuit

Kayla Kraft (no known relation to the cheese people) found herself on a Natural Light coaster with a fake handlebar mustache drinking a beer under the heading “Every Natty Has a Story.”  She apparently didn’t like that story and just sued Anheuser-Busch, the makers of Natural Light beer, for copyright infringement and invasion of privacy.

According to the complaint, in 2013 Kraft’s friend Kathyrn Belasco snapped the mustachioed photo of her using Kraft’s phone.  Kraft then posted the photo on Facebook.  Three years later, Belasco assigned all of her rights to the photo to Kraft.

News reports say that the photo was submitted to Natural Light’s Facebook page as part of the “Natty Rewards” contest run in 2014 by Anheuser-Busch where contestants were asked to submit a photo of themselves “acting natural.”  (Unknown whether drinking beer with a fake mustache was Ms. Kraft’s natural state.)  Rules are here. The Rules provide that photos submitted are the original work of the entrant and do not infringe upon anyone’s copyright or publicity rights.  The Rules also grant Anheuser-Busch a license to use the photo in any and all media for any purpose.  Basically, the Rules say everything that’s typical for a UGC contest.

The Complaint doesn’t mention the contest, but does allege that the photo has been used as part of Natural Light’s “Every Natty Has a Story” campaign without Kraft’s or Belasco’s consent.  Anheuser-Busch has not yet answered the Complaint.

Assuming the photo was submitted as part of the contest, this lawsuit raises a number of interesting issues.

(more…)

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One Whale of a Story $2MM Fishing Contest Prize in Dispute After Failed Polygraph Test

Fishermen(persons?) say that the strongest currents yield the biggest catch.  Or at least I think they say that; I really don’t fish.  But there’s a storm a brewing in Maryland federal court over a disputed $2.8 million first prize in the “world’s largest billfish tournament,” known as the White Marlin Open in Ocean City, Maryland. White Marlin Open, Inc. v. Heasley, No. 1:16-cv-03015 (D. Md.)

Entering anglers had to pay a $1,000 fee to register their boat and winners received a prize based upon the type/size of fish caught and the total entry fees.   Phillip G. Heasley allegedly caught the only qualifying white marlin which would purportedly qualify him for a $2.8 million prize.  Pursuant to the contest rules, the Sponsor could require him to take a polygraph test.  He did.  He was found to have used “countermeasures” to manipulate the examination process.  Ooh, the plot thickens. The boat’s captain and crew were also given polygraph tests which purportedly helped sink Heasley.  Apparently, the claim is that Heasley’s catch report had a catch time of 8:15 a.m. that was written over with a time of 9:05 a.m..  The Official Rules state that anglers cannot fish until after 8:30 a.m.  Waiting to snare the big prize were the other winners.

The Sponsor, after conferring with the three independent judges, determined Heasely was disqualified.  The Sponsor then filed an Interpleader action in Maryland state court (which was later removed to federal court) seeking to deposit the prize money in escrow and let Heasely and the other winners fight it out.  But the Sponsor didn’t stop there.  The Official Rules provided that the Sponsor “shall be entitled to reimbursement for 5 times its costs and fees, including attorneys’ fees, which result from the determination and resolution of the validity of unjustified protests.”  The Sponsor then sought 5x its attorneys’ fees in the lawsuit. (more…)

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“You Are [NOT] a Winner” Consent Order Entered Against Printer/Mailer of Deceptive Prize Notifications

On February 9, 2017, a consent order was entered in favor of the FTC against the general manager of a company engaged to procure printing and mailing of deceptive prize notifications.  The individual got laminated for $800,000 (subject to reduction).

The lesson: anyone involved with deceptive prize/sweepstakes/contests mailings could get in serious trouble.

According to the Complaint, the sponsor, using the aforementioned company, mailed hundreds of thousands of personalized cash prize notifications announcing that the recipients had won a cash prize of $943,543.54.  (NB: maybe a million dollars outright seemed too suspicious?)

Of course, the offer was made to sound juicy: “YOU HAVE WON A CASH PRIZE! … Your name was identified among a tiny percentage of ALL eligible individuals.  The fact that you have won a cash prize must be thrilling and somewhat overwhelming.”

Of course, they targeted the elderly.  Of course, they asked for a “fee” of $25 to collect the prize.  Of course, people complied.  And of course, they didn’t get the cash prize.

Why go after the printer/mailer?  The sponsor gave him the electronic templates of the prize notifications, the outer envelopes and the return envelopes, and instructed him on the quantities to print, who to mail them too, and when to mail them.  (He may have done some editing too.)  He then arranged for the notices to be printed and mailed out.  According to the FTC this was enough to be in on the scheme. (more…)

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Will The Consumer Review Fairness Act of 2016 Affect Contests and Sweepstakes? (Hint: Yes)

On December 14, 2016, the Consumer Review Fairness Act of 2016 was passed to try to put an end to companies taking down nasty reviews about their products.

Congress’s way of telling companies: if you ask for it, you’re gonna get it.

The new law – effective March 14, 2017 – generally prohibits companies from imposing upon users a restriction for posting negative written, oral or pictorial reviews or similar performance assessments about the company’s goods or services.  The new law also prohibits mandating people to transfer their rights to their reviews or feedback to the company (a nonexclusive license is ok).

Could this new law have a dramatic and lasting impact on contests and sweepstakes as we know it?  I don’t think we’re quite at Chicken Little stage, but the reach of this new law could have a serious effect on contests and sweepstakes that seek reviews or feedback on a sponsor’s product.  That’s because the new law applies when the restrictions are contained in “form contracts,” defined as contracts with standardized terms that the other person doesn’t have any meaningful opportunity to negotiation.  Sounds like Official Rules.

“Tell us in 3 words or less how much fun you had on your last Sponsor To The Stars vacation” or “Post your favorite Sponsor Sandwich for a chance to win even more Sponsor sandwiches.” or “Tweet the 50 things you love about Sponsor Soap to #SponsorSoapSweeps.”  All potentially affected. (more…)

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Condemnation, Litigation, Regulation, Legislation, Congratulation – Are NFL Ratings Down because of The Daily Fantasy Sports Crackdown?

 

Sports Illustrated recently had an article listing their experts’ take on why NFL TV ratings are down an overall 11% from last year.  Number 7 on their top 10 list was the Daily Fantasy Sports (DFS) bans.  Should the past year of condemnation, litigation, regulation and legislation lead to congratulation to aggressive state attorneys general and legislators for this downturn?  Perhaps.  But to the delight of the NFL (and ESPN, CBS and NBC), most states are now saying “Give Peace A Chance.”

First, DFS were flying under the radar and gradually creating a buzz.  Then, DFS exploded last year spurring increased NFL interest and TV viewership.  Because of this popularity, many legislatures took an interest and decided they had to investigate this (new) phenomena.  A number of state attorneys general issued formal opinions condemning DFS and some filed lawsuits against DFS operators.  Now, the dust is starting to clear, and it appears that most states are recognizing that DFS is a form of legal contest. (more…)

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The Cow Chip Raffle OR How to Turn Poop Into Loot: An Analysis of a Raffle Law

Imagine a football field roped off and sectioned into 500 marked squares. Imagine further a cow roaming free on this football field trying to find the perfect spot to leave a cow pie (that’s farmer for poop). Imagine even further a lucky contestant who placed her money on the exact square where old Bessy decided to messy. That’s a Cow Chip Raffle.

The marketing fun is endless. News outlets love this stuff. Kids can’t believe it. And adults ponder over guessing exactly how far a bovine can go before the bovine has to go. So, what are you waiting for?

Oddly enough, to be filed under “You gotta be kidding me,” Connecticut has a specific statute dedicated to the Cow Chip Raffle. (Conn. Reg. §7-185-11b – look it up!) According to the law, you must be a non-profit and obtain a permit. You also have to file a plot plan. Your land area must be “suitably enclosed” to make sure the cow doesn’t get out (and a winner can be determined). You have to sell tickets with removal stubs entitling the holder to “temporary possession of a plot of land.” You have to “conspicuously post on an information board” the numbered plots. And no cheating, “No person may feed, lead or handle any animal utilized in a cow-chip raffle once the animal has entered into the enclosed area.” And off you (or at least the cow) go! (more…)

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