In This Issue:
Guess Who Members Can’t Share the Band
Ancient rockers hurl lawsuit at former bros, but will it stick?
When Friends Fall Out
Baroque internecine conflicts and acrimonious legal battles are nothing new in the world of classic rock, but we must confess that nothing brings more joy to our own post-punk sensibilities than watching a bunch of aging hippie musicians duke it out over declining revenue.
(We’re well aware that Johnny Rotten is in his sixties, so settle down, okay?)
The Jefferson Airplane/Jefferson Starship/Starship devolution was one for the ages, with the added bonus that the band’s music took a nosedive in quality with each new corporate iteration. And if you’re a student of medieval history, what could be more diverting than the Byzantine wranglings over the Yes/Anderson Bruford Wakeman Howe/Yes Featuring Jon Anderson, Trevor Rabin, Rick Wakeman dynasty?
Indeed, peace, love, and understanding have had a funny way of transforming into conflict, hatred, and distrust, especially when gazillions in ticket and album sales are at stake. But somehow, it all seems less epic in the case of The Guess Who.
(For the record, the greatest rock band of all time never indulged in this sort of behavior.)
Hand-Me-Down World
To our ear one of the most awkwardly named bands to ever press a record, The Guess Who was the first Canadian band to break big in the United States and the world at large. Among a number of lesser hits, they were most famous for the anthem American Woman, which, according to various accounts, is an anti-war song or a misogynistic screed. Or both.
(You’ve heard American Woman. Everyone’s heard it. No more needs to be said. We won’t even link to it.)
Two of the original members of TGW, singer/keyboardist Burton Cummings and lead guitarist Randy Bachman, are suing the two other original members, bassist Jim Kale and drummer Garry Peterson, over…well, a whole bunch of things centered on the rhythm section’s continued use of the TGW moniker.
Reading the preamble to the complaint, filed in the Central District of California at the end of October, one cannot help but feel an absence—namely, no up-front mention of who actually owns the TGW name and the rights to do business under it. The issue is addressed, eventually, but it’s buried a third of the way into the document.
Prior to learning that Kale and Peterson applied for and won registration of The Guess Who mark almost 40 years ago, we hear pages and pages of present-day gripes from the plaintiffs, the main thrust of which is that Kale and Peterson are purposely “intermingling” the pedigree of the original foursome with the current band, in which Peterson alone currently plays (and only occasionally).
This allegedly purposeful intermingling includes misleading information on the band’s current, Kale-controlled website—especially a discography that includes early-era TGW recordings alongside albums recorded by the current band, which the complaint repeatedly refers to as a “cover band” because it includes none of the original members. Other sins include the use of old band photos and song recordings in social media posts, YouTube videos, advertising, and streaming services.
Cummings and Bachman are suing their former bandmates for false advertising of the federal and Californian varieties, unfair competition under Golden State law, and violations of the right of publicity.
The Takeaway
All of this seems a bit ironic—a dispute arising from a band whose own strange name originated as a publicity stunt referencing a much bigger and better outfit.
But it can make for entertaining reading, especially for salty bits like Jim Kale’s alleged assertion that he assembled the recent iterations of TGW as “a band of trained monkeys...just to piss [Cummings] off.” And there are a few pages of social media comments from angry fans who have just realized that the band that they spent their hard-earned dollars on doesn’t feature one original member; as one angry concertgoer put it, “they should name this klone [sic] band ‘guess again.’”
This is all good fun for people who love rock and roll drama, but the underlying case seems...odd.
The false advertising charge seems like it belongs in a class action brought by jilted fanboys disappointed to not see the original septua- and octogenarian lineup at a 6,500-seat venue in Onamia, Minnesota. And unfair competition might make sense if there were still dueling TGW-derived bands with similar names touring the continent. But as the complaint itself notes, “the Original TGW, including Plaintiffs, [have performed] together on various reunion tours at high-profile concerts from the 1980s to the early 2000s.” Presumably, Cummings and Bachman were performing under the TGW moniker and were well aware of who owned it.
There seems to be the shadow of a different case—a trademark infringement case—hanging over this dispute. It seems instructive that the fact of Kale’s ownership of the underlying mark since the mid-’80s is only glancingly mentioned in the middle of the complaint. But many of the other issues raised—including the use of images of Cummings in band promotional materials—hinge on that ownership and what it implies.
Until we hear more from the docket, here are some helpful charts that will occupy you in the meantime.
DSSRC Throws Another Product-and-Earnings Combo
Cosmetic company’s rosacea “cure” is just as inflamed as its earnings claims
Trend Lines
It looks like the Direct Selling Self-Regulatory Council may be on a roll.
Recall a few weeks ago when we covered Zallevo Technologies, a maker of dietary supplements. Zallevo was under DSSRC’s guns—not only for exaggerated earnings claims but also for the claims it made about the underlying products.
The Takeaway
DSSRC’s latest case doesn’t concern dietary supplements. It’s about Sweet Minerals, a cosmetics and personal care product company. The Council sent inquiries to Sweet Minerals in response to several claims made by its sales force on social media.
They include earnings claims, like the chance to earn “part-time or full-time income,” or something called “Unlimited income”—truly, an unwise claim to make in DSSRC’s world. Product performance claims were also targeted, including:
I was diagnosed with Rosacea at 24, and have struggled for many years to find relief. Over the course of a few weeks wearing the Sweet Minerals makeup, I noticed a remarkable decrease in the frequency and intensity of my skin flare ups and irritation.
It’s another one-two punch from the Council—are there more on the way?
The question is probably academic for Sweet Minerals, which, according to the DSSRC, ignored its attempts to gather substantiation for any of the claims. Now, the cosmetic company will be on the radar of the Federal Trade Commission and the Maryland Attorney General’s Office—two entities that are far less forgiving than the Council and its brethren.
The Emperor Has No COVID Immunity
The FTC shuts down the apotheosis of all pandemic scams
How Many Times Can We [Sic]?
Navigate over to kwtechnologynv.com. Is it still there?
It was when we wrote this, which surprised us. But if it’s still there now, while you’re reading this, we’d be amazed.
Why? Well, KW Technologies, the site’s proprietor, was—maybe still is?—in the business of hawking the “1 Virus Buster Card,” a product that delivered a “high quality remedy to kill 99.9 percent of virus, germs, bacteria and other allergens in the air up to 3 feet away.”
The kicker? It consisted of nothing but a card that a user is supposed to hang around their neck, a talisman “made up of chemical compounds found in everyday food and [sic] react together to form a harmless, odorless gas around your face.”
They sold this to people. To protect them from COVID-19. And 99.9 percent of all the other bad stuff in the world, just in case people needed more reason to fork over their dough.
According to the site:
Our researchers and scientists have examined hundreds thousand [sic] respiratory droplets in the context of a COVID 19, [sic] we developed a group of uniquely compounds used IBM’s [sic] Quantum Computer to accelerate this exceedingly tedious process and gain reliable answers when used correctly, This [sic] barrier kills most viruses, bacteria and pathogens before they enter the nose, mouth and sometimes, eyes.
Believe us—the site actually says this.
Or said it.
Three Years in, and We’re Still Dealing With This $#!*#&
We’re betting on the site existing only in the past tense by the time you read this, because of course the Federal Trade Commission sued the company, and of course there was a court order, and of course three of the four defendants involved—one Gary Kong and his two companies, KW Technology Inc. and KW Technology NV Inc.—signed the order, and of course they must pony up $150,000 in fines, and of course they are banned from “advertising, promoting, or selling any product claiming to prevent or treat COVID-19, unless the claims are true and supported by scientific evidence,” which, of course, they were not.
(A fourth defendant, one Timothy Wetzel, did not agree to the settlement and the government is still suing him for this awful nonsense. Avoid him at cocktail parties.)
In addition to a complete lack of scientific support for any of their product claims, Kong and Wetzel are accused of deceiving customers by posting misleading “lab results,” irrelevant case studies, and false claims of approval from the Food and Drug Administration. They even posted a fake FDA “certificate” on their website.
Again, as of this writing, all this material is still live on the company’s site.
The Takeaway
Setting aside the absurdity of the product itself—and the fact that, at $29.99 a pop, it earned $100,000 in revenue for Kong, Wetzel, and their companies—there seems to be something poetic about the whole affair.
Launched in 2020, the Invisible Mask is easily the most audacious piece of flimflammery to be found in the wasteland of misinformation and grift that enveloped the culture during the COVID-19 crisis. The fact that it was only shut down now, in the (hopefully) waning days of the virus, is a remarkable testament to human folly and inattention—and, surely in more than a few cases, despair.
And so this tawdry episode leaves us with one final, literary observation: We need a contemporary Mark Twain to write the first great COVID-19 novel.
Other writers might conjure up the pain, the loneliness, and the anger of the pandemic. But no one less than a modern Twain could do justice to the parade of pandemic-related deceit, chicanery, and folly we all witnessed, and are still witnessing.
Cali AG Tries to Clarify License Plate Scan Regulations
Two new bulletins from Bonta aim to give shape to law enforcement applications
This Newsletter Is Not Scanning Your Irises, We Promise
Just when you were getting used to facial recognition scans, fingerprints, online data trackers, and all the other ways you can be tracked and monitored, along comes ALPR, or Automated License Plate Recognition.
Wait—you weren’t used to the other stuff yet?
Like it or not, ALPR, which was invented nearly 50 years ago, is now in widespread use for such quotidian tasks as open warrant scans during traffic stops and tracking drivers who fail to pay tolls at the booth. As usual, these fairly benign applications only tell a slice of the story—and any person with an imagination can conceive of the range of abusive applications ALPR might enable.
But if you’re not feeling particularly imaginative, please allow the folks at the Electronic Freedom Foundation to do what they do best—scare the bejeezus out of you with an in-depth dossier. This one covers ALPR technology and the myriad ways it can be, and is being, misused.
They’ve also got info on all the other technologies that you’ve gotten used to/still haven’t gotten used to, including iris scanning, drones, tattoo identification…
You’ve been warned.
The State of the States
We’ll leave it up to you to determine if the following is good news or not: Some state governments have taken measures to protect driver privacy by delineating the uses of ALPR and how and with whom the data it gathers can be shared. The National Conference of State Legislatures (yes there’s an organization for everything) provides a helpful list here. According to the Conference, only a handful of states bother to regulate the use of ALPR. And often the regulations that are in place are threadbare.
In the case of everybody’s favorite 800-pound-gorilla state—California—ALPR systems are currently subject to two laws passed within the past decade: Senate Bill 34, passed in 2015, which “imposes requirements to protect data collected through an ALPR system, including limiting with whom this information may be shared,” and the Values Act, passed in 2017, which “provides strict guidelines in the use of these databases to ensure information shared for immigration enforcement purposes is limited to the fullest extent practicable and consistent with federal and state law.”
The quotes above are from a recent press release penned by California Attorney General Rob Bonta, who, despite the Golden State’s presumably robust privacy laws, is going a little further to ensure that law enforcement is handling the ALPR data it gathers in accordance with both statutes.
The Takeaway
Bonta recently issued two bulletins explaining the law enforcement implications of SB 34 and the Values Act’s ALPR provisions. They’re meaty, and too long to summarize here, but their existence is important for two reasons—first, as a helpful primer for citizens of any state to understand widespread influence of ALPR technologies and how one of the more consequential legislatures in the United States is managing it.
But, given the history of IP-based technology, today’s high-tech law enforcement tool will likely have a consumer application tomorrow. For instance, in the case of ALPR, retailers might envision a system where vehicles are scanned upon entry to a store parking lot and tailored sale items are presented to the driver over their phone or in their car based on their previous purchase history. In fact, we wouldn’t be surprised if this was already being implemented, somewhere.
For applications such as these, it’s helpful to understand the strictures governments are placing on the original uses of the technology, to serve as guideposts for your own applications. Because when regulations are added to cover private uses of ALPR and the data it gathers, they’re likely to be built on the back of existing law.
A Brief, Unfocused Tour of the Mugshot Gallery
There’s little clarity when it comes to using law enforcement images in your products
Essential Public Info?
Here’s a fun tidbit from overseas:
A police officer in Trinidad and Tobago, convicted alongside a partner for attempting to extort $700,000 from a man to forgo criminal prosecution, sued the Trinbagonian government for publishing and disseminating the mugshot taken of him during his booking.
The police department allegedly published the former officer’s mugshot on its social media page and websites and in newspapers. The former officer (and new social media star) claims that his former colleagues had no reason to publish the shot, aside from vindictiveness, and accused the police of singling him out, since in the past, the mugshots of other high-profile defendants had been withheld.
The court ruled in his favor, agreeing that the publishing of his photo was a violation of his right to “respect for his private life” and fair treatment by the law. He was awarded $70,000 in damages, a 10 percent haircut off the original figure of his extortion attempt. It was a clear victory for an individual’s right to privacy over the public’s interest in the crime he committed.
Personal Brand
Let’s complicate the issue, shall we?
Anyone who’s been awake for the past few months is aware of former President Donald Trump’s (in)famous mugshot, published by Fulton County, Georgia, in the wake of his August 2023 indictment. It’s no surprise that an interminable debate has sprung up around the use of this photograph in marketing materials.
Reuters recently outlined how Trump’s image was uniting the country behind cheap novelty items, even if the merchandise itself was fairly evenly divided between both pro- and anti-Trump sentiment.
But the waters are further muddied by Trump’s insistence that no one else had the right to profit from this image—according to The Intelligencer, one of the former President’s advisers tweeted, “If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission …WE ARE COMING AFTER YOU you will NOT SCAM DONORS.”
Trump, as a subject, was asserting his rights over his own image.
The Takeaway
Mugshots exist at a dangerous legal intersection, where an individual’s right to publicity, the community’s right to information of public interest, and the rights of the copyright holder—in general, the law enforcement agency that took the original shot—collide.
Add freedom of expression to the mix—what First Amendment rights do the producers of Donald Trump’s mugshot swag enjoy?—and you can see that debate over the uses and misuses of mugshot photos will be with us for many moons to come.
In the meantime, it pays to be careful how about how you use images produced by law enforcement in the course of the execution of its duties. For example, the most recent Supreme Court ruling involving the subject held that mugshots are exempt from Freedom of Information Act requests because of the persistent damage that they may do to the subject’s privacy interests. This same lens could be applied to private use of the same photographs.
All to say: Avoid using images produced in the course of law enforcement activities. Your rights and responsibilities are out of focus.
Check Out Our Recent Blog Posts
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Sponsored: Is it enough? Not always, says NAD
Our friendly self-regulatory body in the advertising world – the Better Business Bureau’s National Advertising Division (NAD) – flat-tired* a sneaker brand this week for its sponsored posts on editorial publishers’ social media accounts. NAD said the disclosure “Sponsored” was not enough for consumers to recognize the posts as ads versus editorial content and recommended a change in the advertiser’s disclosure practices.
Takeaways from a Panel with the FTC and NAD
In addition to legal analysis, legislative developments, and some general whimsy, in this blog we highlight commentary from regulators and industry figures in the advertising law space. We had the opportunity to hear from several such individuals last week at the ANA Masters of Advertising Law Conference.
FTC Not Kidding that Discrimination Violates Section 5
We all know that discrimination violates various federal and state laws, but the FTC has been insisting for a while now that it also violates Section 5. A recent joint complaint the agency brought with the State of Wisconsin against a local car dealer proves it wasn’t kidding and also raises interesting issues regarding how the agency intends to prove unlawful discrimination under Section 5.
No Silver Bullet: The FTC’s Staff Report on Kids’ Digital Marketing Workshop
When the FTC announced it was doing a workshop focused on children’s digital marketing that would be followed by a Staff Report, I was as giddy as a kid on Halloween. But now I feel like I got more tricked than treated, largely because the Report lays out a fair number of musings without being clear about any shift in the enforcement landscape. For those who want the executive summary, here are the Report’s “recommendations”
[View source.]
