Journey from Concept to Creation

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There is an old Chinese proverb that says, "He who knows not, but knows not that he knows not, is a fool. Shun him." Truer words were never spoken. Comtemporary wisdom says, "Ignorance of the law is no excuse for violation of the law." In consideration of these truths, I will try to make the basic tenets of copyright, trademark and patent law as simple as possible so that even a fool can understand them. I will also attempt to clear up common misconceptions and address the exemptions to the law (such as this commentary) that fall under "fair use."
     International society has reached a consensus that creative artists should have moral and economic control over how and where their work is used. Copyright law protects the rights of these artists which include filmmakers, composers, authors, fine artists, commercial artists, graphic designers, web/interactive designers, photographers and others. I was told in art college that if a juror holds the original in one hand and a copy in another and believes with 60% or better certainty that the copy is derived from the original, then there is a legal basis for copyright infringement. If the author can prove in court that he or she owns the work and can prove that the defendant has copied it, the plaintiff will recover attorney's fees, actual damages, statutory damages, or any profits that were a result of the infringement. The judgment can be affected by the extent of the infringement and how much proof there is that the violation was intentional. [For more detailed information you may want to consult with an intellectual property attorney.]
     The author owns the rights to his/her work whether he or she has it officially registered or not. The benefit of officially registering intellectual property with the copyright office (requiring a $30 fee), is simply that it makes it easier to prove authorship in court. By the way, another pervasive myth is that the artist can mail the work to himself and use the postmarked, unopened envelope as proof. NONSENSE. Think about it. An artist can also mail an UNSEALED envelope to him or herself.
     It is important to note that only expressions of ideas are protected. The ideas themselves are not copyrightable [neither are drum charts or chord progressions -- only melodies]. An idea has to be produced in tangible form before it can fall under copyright protection. Also, commonly used and/or ubiquitous imagery is not protected. For example, if I take photo of the sky with billowing clouds, I own the photo itself, but not the license to photograph clouds. So if someone else takes a photo of clouds that looks like mine, I may not have a valid case against them.

     As I write this, there is a story circulating on social media regarding a legal matter between rock musician, Rod Stewart and Bonnie Shiffman, a celebrity photographer. Shiffman was originally hired by Stewart to photograph the back of Stewart's head for his “Storyteller” album which was released in 1989. 

ORIGINAL PHOTO (Credit -- Bonnie Shiffman)

A REPLICATE IMAGE OR UNMISTAKABLE COPY?

Shiffman's lawsuit claims that a current photo being used by Rod Stewart is "a replicate image, an unmistakable copy" of the original. According to numerous sources, Stewart's agent, Arnold Stiefel, offered Shiffman $1,500 for the reuse of the photo. Shiffman refused. So, Stiefel created a very similar photo without obtaining permission from Shiffman.

I believe that Shiffmann has a rock-solid case for the “not less than $2.5 million in compensatory and punitive damages.” It may be settled out of court. Nevertheless, the thing that interests me most is how many users have responded on social media in support of Rod Stewart. I have PARAPHRASED some of the comments I have read from supporters of Stewart as follows:

      Now I'm not saying that opinions don't matter. But I will say that the law is the law and there is legal precedent in this case. In my next blog entry, I will address some of these somewhat sophomoric, albeit heartfelt comments and how they fall into the context of intellectual property law. Stay tuned.

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On my earlier blog entries, I used the legendary "Think Small" VW ad, to demonstrate the principles of advertising and graphic design and how they are used. I also pointed out the truly masterful copywriting by Julian Koenig. [Koenig also created the famous, "It takes a licking and keeps on ticking" tagline for the Tmex "torture test" ads in the 60's.]

    Listed  in 1999 as the number one ad of the century by Advertising Age Magazine, this ad is still widely considered to be the the best ad of all time.

    Detroit had been busy for years rolling out big, ostentatious cars for the American consumer in a time when "big and ostentatious" was the status quo. Everyone seemed to not only want to "keep up with the Joneses", but to show the Joneses that they had a bigger, more luxurious and more powerful car.
    When Koenig (a Jew) and Krone visted the Volkswagen factory in Wolfsburg, Germany, they told Bernback that while they hadn't yet created any ads, the marketing problem was quite clear... "sell a Nazi car in a Jewish town." Bernback was not amused. He put them to work creating a positioning slogan, using simple black and white magazine ads in a sea of color ads to drive home (no pun intended) the USP which would sell a strong consumer benefit to the US automotive consumer. Little did they know that the "Think Small" and "Lemon" campaigns would create runaway success for the VW Beetle. Starch readership studies would find that the ads had much higher readership scores than most editorial pieces in the various consumer magazines in which they appeared.

    Bernback followed this ad up with yet another iconic ad -- the VW "Lemon" ad with the famous tagline, "We pluck the Lemons, you get the plums."

Ad copy

This Volkswagen missed the boat.

The chrome strip on the glove compartment is blemished and must be replaced. Chances are you wouldn't have noticed it; Inspector Kurt Kroner did.

There are 3,389 men of our Wolfsburg factory with only one job; to inspect Volkswagens at each stage of production. (3,000 Volkswagens are produced daily; there are more inspectors than cars.)

Every shock absorber is tested (spot checking won't do), every windshield is scanned. VWs have been rejected for surface scratches barely visible to the eye.

Final inspection is really something! VW inspectors run each car off the line onto the Funktionsprüfstand (car test stand), tote up 189 check points, gun ahead to the automatic brake stand and say "no" to one VW out of fifty.

This preoccupation with detail means the VW lasts longer and requires less maintenance, by and large, than other cars. (It also means a used VW depreciates less than any other car.)

We pluck the lemons; you get the plums.

Think it over . These revolutionary ads changed the way we make ads. Because of the stark contrast to the colorful magazine ads of the era, these comparatively simple ads stood out, broke through the clutter and arrested the reader's attention. Krone used the principle of "sequence" to lead the readers eye into the headline which contained a strong and compelling benefit, leaving the reader with little choice but to read the beautifully written, simple and minimalistic copy...  effectively selling this simple and minimalistic automobile. They "invented" the popular concept of today's advertising design that "less is more."

Here are a few more classic VW ads from Bernbach and friends...

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"Let me explain newspaper advertising to you,"  said my new client, the owner of a national chain of oriental rug stores..."It is like buying real estate except you pay for the column-inch instead of the square foot. So, you need to make sure that you use every single column-inch of the ad to get the best bang for your buck..." Well... I actually agree with the sentiment that every column inch should be used to good advantage, but not by cramming every column inch with "stuff." As I explained to him, one of my favorite ads is a full page, full-color newspaper ad containing about 99.9% "white space" except for the center of the page which had a full color, life size image of a single Hershey's Kiss. The copy simply read, "In case of emergency, PULL." Ogilvy & Mather used every column inch to VERY good advantage to break through the clutter while displaying their tiny silvery product in full-living-color (color costs far more than black and white). This advertisement would have made a great outdoor billboard as the message could be understood quickly and easily. By the way, this extensive use of every single column inch in the "Little Hershey's Kisses" campaign which ran in print and broadcast media throughout most of the 1980s and '90s helped to restore Hersheys lead in the US candy industry in 1989 with a 43.5% market share from 27% in 1975. [After I 'splained these facts in detail, my client's perceptions regarding cramming column inches with "stuff" began to change.] 

     While this full page newspaper ad was used effectively for branding, newspaper ads can also be very effective for detailed price and item listings. But, an outdoor billboard would probably not be quite so versatile due to its limited space and the fact that prospects usually have only a matter of seconds to view them at the risk of plowing into the car ahead. Hopefully, not even my previous client would consider using a 30 second television commercial for detailed price and item listings. Nor would broadcast television covering a large DMA (as noted in a previous blog entry) be used efficiently to target prospects in a small local neighborhood. Indeed, the plethora of media vehicles out there can be used to great advantage -- or misused and even totally wasted. So, before continuing my blog entries on buying specific media, I thought I would write about the "whys and wherefores" of specifying appropriate media.

     While the creative department develops the concept the media planner's job is to determine which media will be most efficient and appropriate. So, an important part of our creative journey is the development of a media rationale for the creative brief. Often these decisions are obvious, but sometimes they require studious evaluation. In light of these facts, my next blog entry will contain an overview of a variety of different media and how they might be used effectively.

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As I mentioned in a previous blog, my first exposure to media planning and buying was when, due to my focus (minor) on computer science and information systems at Georgia State University's Robinson School of Business, I was asked to research and purchase a turnkey computer system for media planning and buying. My college internship had turned into a full-time agency job and this was one of my first assignments. I purchased a $30,000 (circa 1985) PC based media planning system from Telmar®. The system was primarily based on Lotus 123® macros using downloaded ratings data. Learning the system motivated me to dig deeper into Lotus® macros and dBase® programming...experience that later translated to Excel® (it is amazing how quickly Excel® replaced Lotus 123® as the industry standard).

   I learned a great deal about media simply by learning and using the Telmar® system. I was also very fortunate to receive “on the job training” via veteran agency media professionals who suffered from computer phobia. With Telmar®, you could instantly see how changes in spot selections affect the total cost and the reach and frequency of the buy, either for a single TV station or for all media in the buy. It was a great negotiating tool. You could instantly compare CPPs and CPMs between the same daypart on different stations while you have your station sales representative on the phone. The media mix capability included additional media such as radio, print and outdoor. In addition to Telmar®, I later used Broadcast Management Plus® and other software for media planning and buying. I also developed my own spreadsheets and a dBase program for entering and printing insertion orders.

   In addition to turnkey media planning and buying software, online research databases such as Dialog®, Nexis®, Lexis®, Dow Jones® and Dun & Bradstreet® are useful for doing media research and preparing media rationales. Other comprehensive tools are available through media providers – television/radio stations, media representation firms (media reps) such as Katz®, spot cable reps such as NCC®, and major newspapers. Here is a quick overview of a few media resources, many of which can be accessed via media providers:

   Scarborough® Research. Developed as a newspaper measurement tool, Scarborough® provides data on lifestyles, shopping patterns, media behaviors and demographics at local, regional and national levels. Founded in 1975, its services span 2,000 categories and brands which include retail shopping, lifestyle characteristics, consumer demographics and media usage patterns. You can have access to Scarborough via any major newspaper sales rep.

   Experian® Simmons® – formerly Simmons Market Research Bureau (SMRB). A leading provider of consumer behavior demographics information, Simmons® provides detailed brand, service and media usage information on over 8,000 brands and over 450 product categories. It provides data for Microsoft® MapPoint® software which can map profiles of consumer data by state and down to census tracts. Consumer usage of thousands of brands and services can be profiled via Simmons BrandTract® from any of six levels of geography – Total US, State, MSA, County, ZIP Code and Census Tract.

   ESRI GIS® -- formerly CACI®. This GIS and mapping software combines demographic data and mapping software which can be used for market analysis to determine which products and promotions can match the lifestyles and buying patterns of potential customers in specific geographic areas.

   STRATA®. STRATA® Marketing, Inc. develops premiere software for media planning and buying. They offer Spot TV, Spot Radio, Print, Outdoor, Local Cable, National Cable and Network TV Media Buying and agency products which provide in-depth Pre-buy, Buy, Posting, Reporting, media Billing and qualitative research capabilities. The agency media buying system, STRATA View handles the entire media planning and buying process from "A" to "Z." It includes multi-media Reach and Frequency allowing every combination  of TV, Radio and Print Media -- Reach, Frequency, GRP's, CPP's and more.

   TAPSCAN™. TAPSCAN™ is a suite of software for local market radio that is used extensively by radio station salespeople. It provides access to customized demos, geographies, dayparts and multibook averages. It includes qualitative (80 categories of Retail Spending) as well as quantitative (Ratings, CPP, CPM, etc.) data. You can enter GRP targets for specific dayparts and demos and the system will indicate the number of spots required to achieve them.

   SRDS®. Owned by Nielsen®, SRDS® (Standard Rate & Data Service) is the leading provider of media rates and data....offering comprehensive coverage of traditional media (magazines, newspapers, television, direct marketing and radio) as well as online and out of home. With 95% of advertising agencies served, it is the largest and most comprehensive database of media rates in the world. It provides an immediate, single source of rates for agency media planners for all media.

   SQAD®. An acronym for Spot Quotations And Data, Inc., SQAD® provides advertising agencies, media buying services, broadcast and cable stations, etc., instant access to real cost CPMs and CPPs by network and daypart, unit costs, CPMs and CPPs by program category and time period. Cost data is based on actual transactions.

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Ok…we’ve established that the proper way to begin development of a media plan is to establish a GRP target for your proposed market(s). It is critical to have a sufficient number of GRP’s in order to achieve adequate reach and frequency. GRPs are presented according to ratings of demographic groups within specific market areas as defined by Nielsen’s® proprietary Designated Market Areas (DMAs) [or Arbitron® Area of Dominant Influende (ADI)]. They are presented according to programs or dayparts. Television dayparts include Early Morning (5am-9am), Daytime (9am-4pm), Early Fringe (4pm-8pm), Primetime (8pm-10pm), Late Evening (10pm-1am) and Late Night (1am-5am). Broadcast media reaches very large geographic markets.

   The above map of the Atlanta market (my home market) shows how the Nielsen DMA encompasses a large part of the state of Georgia, as well as counties in Alabama and North Carolina [with 2,310,490 TV households, Atlanta is ranked as the 8^th largest DMA]. This is great if you are promoting a chain of stores with locations throughout the DMA, or a product such as our skin creme (from the previous blog) which has broad appeal. In these cases broadcast television would be an efficient buy; possibly more efficient than other media. On the other hand, if you are advertising a single store location that draws from a small area you would be wasting money by reaching beyond your geographic target market. Cable television would be a much better option [I’ll talk about cable TV in an upcoming blog]. Demographics can change significantly across large geographic areas -- from urban to rural, upscale to downscale, blue collar vs white collar, etc. Nevertheless, for many products larger markets mean far better economies of scale. It is the cost per thousand (CPM) (not overall cost) of reaching your target market that dictates a solid media buy.
   The ratings services have tightly defined market areas. Nielsen defines their coverage in terms of their proprietary “Designated Market Area” or DMA [Arbitron defines theirs as the “Area of Dominant Influence” (ADI).] These market areas are ranked annually by market size and the top-ten Nielsen markets are highly revered. The current ranking of DMAs is as follows:

   Nielsen DMAs are areas that receive the same television programming from a specific group of broadcast television stations. There are 210 Nielsen DMAs in the United States [286 Arbitron ADIs].

   Developed in the 1940’s by Arthur Nielsen, the Nielsen Ratings are provided for specific demographic groups (Demos) for each DMA. These ratings have been measured in a number of ways, including telephone surveys, diaries, and Set Meters, and People Meters. Out of the 210 measured Nielsen markets, the 56 largest are measured by meter technology. The remainder is measured by diaries only. Nielsen measures all local markets during designated "sweep" months of November, February, May and July. The ratings are used by local stations and cable systems to set local advertising rates and to make programming decisions. The term "sweep" came from the beginnings of the ratings system in the 1950's when diaries were mailed and processed, starting with the east coast and "sweeping" to the west coast -- people meter markets are measured 365 days a year. The networks go to great effort to attract viewers during the sweeps...the higher numbers they get during the sweeps, the more they can charge for advertising time. They are often criticized for their rates not reflecting typical programming...during the sweeps there is more special programming and original programming, etc., while outside of the sweeps it is more common to see reruns.
   Nielsen data is expressed as percentages and presented in terms of rating and share. A rating represents people who watch a particular program or daypart, expressed as a percentage within the universe of all TV households or a specific demographic group (demo) -- a rating of one represents one percent of TV Households. Demos are broken into 66 specific age group segments such as 18-49, 25-54, etc. Share represents the same viewers as a percentage of TV households or total persons actually watching television during the program or daypart -- it can be used as gauge of how a program or daypart competes with other available programs or dayparts.
   Nielsen has recently started providing consumer segmentation based on socio-economic data from PRIZM NE lifestyle group clusters -- Blue Blood Estates (six figure income executives and professionals), Young Digerati (tech savvy, fashionable, urban fringe), Bohemian Mix (progressive mix of young singles, couples, students and professionals), among others...as the ratings system has been criticized for being quantitative at the expense of qualitative. Nevertheless, qualitative data is available from numerous other sources. I will talk more about quantitative vs qualitative analysis in an upcoming blog.

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In my last blog, I mentioned that it is appropriate to think in terms of Gross Rating Points (GRPs) – not the number of spots to be purchased – when planning broadcast media buys. Here is a short demonstration using "WXYZ TV" a mock, top-ten ACNielsen DMA network affiliate.

   Suppose you want to advertise a new anti-aging, fat-burning, sun-screening, appetite-reducing, muscle-toning, beautifying, sun-tanning, skin cream product (using all natural ingredients, of course) that is proven to eliminate cellulose, varicose veins and love-handles while adding years to one's life. Extensive research indicates that the primary target market is Women 18+, stay at home moms. Your client wants to first run the ads in a top-ten, spot television market before going national.

   So you call the network affiliates in your test market and request availabilities (avails) in the DMA for the Female 18+ demographic -- believing that you need to run the commercial 30 times because your client -- who recently attended a one-day beauty business seminar -- told you so. You take a look at the Morning and Daytime day-parts for your Female 18+ demo for the fourth quarter.

[Television viewers are typically loyal to programs as opposed to stations. Nevertheless, I am using availabilities from a single station for demonstration purposes. The numbers are representative of an actual "top-ten" broadcast TV market.]

   As you can see in the above "avail," the Female 18+ demo has dramatically different ratings and rates depending on the program. The cost per rating points (CPPs) are also quite different...even among programs specifically targeted to women.

   In the avail, Program "A" (top-rated morning show 1) and program "B's" (morning show 2) adjacent time periods have different numbers when comparing 9a-10a (1.9 rating) vs. 10a-11a. (1.4 rating). The gross rate for the 9-10a slot is $350, considerably higher than the $265 rate for the 10a-11a time period... yet the CPP and CPM are lower for the 9-10a slot. This is a better buy for the Female 18+ demo as you would be reaching 44.2 thousand vs 32.1 thousand at a lower ($7.92 vs $8.26) cost per thousand (CPM).

   An even better comparsion is made when comparing Program "F" (soap opera) vs Program "G" (homemaking show) which represent programming specifically targeting women. Program "F" gets a 2.7 rating for Females 18+ (reaching 64.4 thousand) while Program "G" only gets a 0.7 rating for the same demo (17.4 thousand). Program "F" has a lower CPP of $203.70 vs $250.00 for Program "G" So, Program "F" is a much better buy -- if you can afford it at $550. This simple comparison should be enough to discredit the absurd idea of buying media based on a predetermined number of spots for the simple reason that the same number of spots on one program vs another can yield vastly different reach at dramatically different costs.

   A far more viable approach would be to determine how many viewers you can afford to reach with effective frequency. Since the minimum generally accepted frequency is three times, you might want to consider shooting for an even better frequency of four times. If you bought 400 GRPs, you could reach virtually 100 percent of Females 18+ viewers in your DMA with an average frequency of four times. Assuming an average morning and daytime CPP of around $220 (based on your avails) your budget would be $88,000. It would be much more common (trust me) to purchase around 100-150 GRPs per week. So, let's assume that you propose to your client that they purchase 250 GRPs for a two-week flight. At an average CPP of $220, this would result in a budget of $55,000.

   A much quicker method for determining average CPPs would be to refer to SQAD. Since SQAD (pronounced "squad") is based on actual buys, it has the added benefit of providing you with a good indicator of what is actually being negotiated and paid vs what is presented by the respective stations on their avails. In addition to being a helpful negotiating tool, SQAD might also be helpful in determining desirable test markets based on average CPP data -- in consideration of buying power index data and other marketing research. At Davis Advertising, Inc., we strive to beat SQAD by a significant amount.

   Your job as a media buyer is now cut out for you -- get your client as much "bang for the buck" as possible by negotiating rates and developing a schedule -- using avails from a variety of broadcast (and cable) stations -- that will improve the numbers significantly, maximizing effective reach and frequency...based on both quantitative and qualitative insight. That will be the subject of an upcoming blog.

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