Fans of AMC’s (NASDAQ:AMCX) Mad Men — and maybe a few casual viewers as well — will remember how, in season 5, the head of the Jaguar dealers’ association promised that the Sterling Cooper Draper Pryce advertising agency would be given the account if office manager Joan Harris acquiesced to a very unsavory request. In another episode, the firm’s financial officer Lane Pryce attempted to kill himself in a Jaguar, but he was unsuccessful because the car would not start.
Similarly, in the first episode of CBS’s (NYSE:CBS) The Crazy Ones, fictitious ad agency Roberts & Roberts is about to be fired by its largest client, McDonald’s (NYSE:MCD), when the father-daughter ad team remakes the hamburger chain’s well-known “You Deserve a Break Today” jingle as a sex song about meat performed by Kelly Clarkson.
As the dubious nature of these brand representations would suggest, these were not product placements. Yet, while neither Mad Men nor The Crazy Ones painted either Tata-owned (NYSE:TTM) Jaguar or McDonald’s in a particularly favorable light, neither show received complaints. In the case of the The Crazy Ones, CBS did receive McDonald’s consent to be used in the pilot episode, but it was not a legal necessity.
In the United States, there are few laws protecting the use of brands in television shows and movies without their approval. Trade libel guards brands — like McDonald’s or Jaguar — from being falsely portrayed in a harmful light, but that standard is difficult to prove when it comes to entertainment.
In order to prove trade libel, the brand in question must show that the statements made were not only untrue, but also represented as fact and not opinion, meaning the writers and producers of a television show or a movie would have to cause “the company has to lose business directly as a result of the defendant’s statement and must be able to show that link,” as Christine Corcos, associate professor of law at Louisiana State University Law Center told AdAge.
That standard means companies have little control over how their brands are used in media, a lesson that was reinforced by Jaguar’s portrayal in Mad Men. The carmaker was not involved in the script and did not learn any details of the plot until the episode aired.
“Well-known brands are a part of popular culture. We have to accept there are other voices out there, not just ours. It’s not our job to control those voices,” Stuart Schorr, Jaguar’s vice-president of communications told the publication, adding “you have to have thick skin.” Instead of complaining, the company used its recurring role to its advantage, creating a photo gallery on its Facebook page, featuring 1960s-era advertisements, which led to a huge spike in web traffic.
For CBS, it was important to receive to receive approval from McDonald’s because the hamburger chain spent $72.5 million for television commercials on the Eye network in 2012, according to Kantar Media. McDonald’s agreed “because the brand was portrayed in line with its values and commitment to its customers in a fun and interesting way,” as Marlena Peleo-Lazar, McDonald’s chief creative officer, told AdAge.
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