Sponsor (Oct-Dec 1964)

FRIDiW i^T 5 Sponsor Mockups Mystify High Court Washington — The nine Supreme Court justices were incredulous and more than a little mystified last week as they listened to arguments between a Justice Department attorney acting for the Federal Trade Commission, and the counsel for the Colgate-Palmolive Co. over the 1960 Rapid Shave tv mockup commercial that substituted sand on plexiglass to represent sandpaper being shaved. The issue before the high court never was made clear. Justice attorney Philip Heymann said the issue was a simple request that the FTC expertise be given a free hand in deciding when mockup "tests" of a product were deceptive. But opposing attorney John F. Sonnett for Colgate-Palmolive said the FTC order against C-P and the Ted Bates Agency went beyond deceptive mockups. Sonnett said FTC wanted right to demand disclosure of substitute materials even in mockups that accurately and truthfully showed what a product could do. The government attorney said this was nonsense. He said the commission's order against the Rapid Shave commercial would leave untouched "all but about one to three percent of mockup demonstrations." He said FTC was after only the "small minority" of commercials which are deceptive in their use of substitute materials. Colgate attorney Sonnett retorted that the FTC would throw broadcasters and Madison Avenue "into a tizzy" by demanding time-consuming disclosures of other materials used when tv techniques required it. Sonnett said disclosure would be required even when mockup showed "truthfully" what a product could do under actual testing. Sonnett granted that the ColgatePalmolive shave commercial was partly deceptive, in that a real sandpaper shave would have needed longer soaking than the "single stroke" of the razor. But this was not the present issue, he pointed out, since both Appeals Court and FTC had agreed on this part of the order. Justice Potter Stewart suggested that since neither side could agree on what exactly was at issue, why not wait for a more clearcut case for a final court test. The government attorney insisted the issue was crystal clear to him. Justices Goldberg, White and Black hammered on the idea that a commercial could say in half a dozen words, that it was a duplication of test conditions, and not an actual test being photographed. This made the Colgate-Palmolive attorney literally quail at the effect on the viewer. He said it would never do — it would destroy the commercial, even if the viewer were told actual tests had produced the identical results. Laughter broke out in the courtroom when Sonnett was asked if he thought the firm would ever use this type of sandpaper commercial again. Said Sonnett with deep fervor: "Oh, no, I should hope not — no, never any more sandpaper." Laughter broke out a number of times in the usually solemn court as the attorneys and the justices tried to sift the mystique of the television commercial Finally, Justice Arthur Goldberg wondered if this case was "important enough," considering the confusion of claims and the lack of any great damage. Philip Heymann insisted that it was a matter of decep tion of the consumer which is "mor ally repugnant" and involved a "moral wrong." Attorney Sonnett said "the hand of government can create havoc it it bars the use of techniques necessary to tv broadcasting — this should not be done by government regulation." A final laugh and a bong of the gavel closed the high court hearing when the government attorney said the case clearly showed that the commercial should say — and not omit by silence — "this is not an actual test" Sighed Colgate attorney Sonnett: "Then it certainly would not be an actual commercial, either." I Sponsor BMI Hit with Antitrust Suit Washington — Justice Department has brought an antitrust suit against music licensor Broadcast Music Inc., and has ordered some 517 broadcaster stock owners to divest of any interest in BML The civil antitrust suit — one long sought by ASCAP against its rival in music performance licensing — was filed in the Southern District Court of New York, where ASCAP-broadcaster fights have raged over the years. In its rebuttal, BMI cited diversity of its catalog and said station lists proved there was no connection between ownership of stock and use of BMI product. Also, BMI asked how it can be charged with a monopoly when ASCAP"s gross annual income is $38 million as compared with BMI's $14 million. To save paper work, Justice Department has named RKO-General to stand for the group of broadcasters, but Justice says the charges relate to each of the 517 stock owners individually. BMI was formed in 1940 by NAB, the NBC Radio Network and other broadcasters to provide an alternate source of music when ASCAP had a virtual monopoly over all music licensing. Those were the standoff days when rebellious radio licensees concentrated on "Jeannie of the Light Brown Hair." The antitrust complaint says BMI and "unknown" broadcasters have attempted to monopolize both the "acquisition" of music performing rights from composers and publishers, and the "granting of licenses" to broadcasters. The complaint also charges BMI with inducing record companies and talent to promote BMI music, and inducing broadcasters to favor BMI music on the air. The complaint says result is a tendency toward monopoly, a depressing of rates to authors and composers, and injury to competing licensors, particularly to the American Society of Composers, Authors and Publishers. Justice points out that where ASCAP once licensed 90 percent of top tunes aired on radio in 1948, the amount dropped to 43 percent in 1958, while BMI had 57 percent. In 1962, trade press charts showed BMI licensed 70 percent of current hits listed on the charts. BMI has contended over the years that ASCAP excluded the composers of the newer rock and roll, country western, and rhythm and blues music and was dominated by an "old guard" that discouraged new young composers. BMI says the newer style music writers flocked to its wide-open doors, and that teen preference for this music produced the big surge in Broadcast Music tune popularity on radio. SPONSOR