ADV 353 Exam 1 - Dr. Pounders

Heuristics

mental/cognitive shortcuts humans use to make decisions. shortcuts made from previous experiences, examples, and influences

Obedience to Authority

Humans are obedient to those who are perceived to be in a position of authority often without question. Can be formal and informal authority

• Ex. Nazi Germany

Milgram Experiment

• Experimenters urge subjects to administer shocks to a fake subject when the fake subject gets a question wrong.

• The fake subjects act like they feel the pain form the shocks while the real subjects are oblivious to the fact that they aren’t actually being harmed.

• Subjects continue to make the unethical decision because they are listening to the experimenter, a person of authority in this environment

False Consensus Effect

When one believes that others think the same way they do leading one to think that everyone is on the same page.

• This also reinforces inclinations to follow authority and submit to peer pressure.

Self-Serving Bias

the tendency to attribute our successes to internal, personal factors, and our failures to external, situational factors.

• This Bias maintains self-esteem and leads one to protect themselves and their best interests.

• Extremely influential, most powerful biases we have (in Dr. Pounders’ opinion)

• also affects how people remember info. They remember things that support their reasoning, rather than things that do not.

Confirmation Bias

prone to searching for info that supports the conclusion they want. Ignore unwanted evidence.

• ex. watching only your preferred news source leaning a certain political direction

Belief Persistence

the fact that people tend to persist in beliefs they hold long after the basis for those beliefs is substantially discredited.

• People have trouble accepting info that goes against what they know or believe.

  • even if disproven we will stand by our beliefs

Casual Attribution Theory

tend to give ourselves more credit than what actually occurred.

• Ex: group projects - feel like we did more than we actually did

• Unconsciously impacts our thoughts and behavior

• Influences judgements of fairness

Over-Optimism

We believe we are at less at risk for experiencing a negative outcome compared to others

• Ex: divorce rate being 50% but newlyweds because their possibility is 0%

• “That would never happen to me”

• overly optimistic about the outcomes of certain situations

Over-Confidence

People tend to rate themselves as well above average in most traits

• Overconfidence in one’s own ethical compass can lead people to accept their own decisions without any serious moral reflection.

• Someone’s subjective confidence in their judgments is relatively greater than their objective accuracy

The Planning Fallacy

make lists of what we need to do that day, and they never complete it. Overconfident in their abilities

Cognitive Dissonance

to avoid uncomfortable psychological inconsistency, once people have made decisions or taken positions, they will cognitively screen info and tend to reject that which undermines their opinions.

• Uncomfortable psychological inconsistency caused by incompatibility between two conflicting beliefs or attitudes

Framing

People’s risk preferences change depending on the message frame. In decision making, context counts. The way the question is framed can change the response.

• ex: justifying spending more because “you deserve it because you work so hard.”

• Gains vs. Losses

• 75% fat free vs. 25% fat

• Lives saved vs. Lives Lost

Sunk Costs

Decisions that have “costed” a person something that cannot be recovered. People tend to stick by decisions into which they have sunk significant costs even if the situation is deteriorating.

• ex: company poured millions into a campaign that was later screened as offensive. They choose to still release it, even though it is not ethical, because they have spent a lot of money on the project

• Tylenol recalled millions of units of their product due to the Tylenol murder tampering with products leading to several deaths. Tylenol prioritized safety and trust over sunk costs giving them a trustworthy outlook on their brand/company

Time Delay Trap

a situation where an individual or group chooses an action with immediate, positive benefits, even though it leads to significant negative consequences that only become apparent much later, creating an ethical dilemma due to the delay in experiencing the full impact of their choice

• when it comes to short term v. long term, we are often more concerned with immediate rather than delayed gratification

Social Proof

people’s behaviors are greatly influenced by external factors (obedience to authority and susceptibility to peer pressure).

• “Everyone else does it”

• Many will follow others without thinking about the ethical implications

• Less likely to blow the whistle on unethical activity when peers seem to accept it

Asch Experiment

purpose was to demonstrate that people are heavily influenced by external people

• 3 lines are the same length, 4th was different. Confederates chose the wrong one on purpose, but the subject followed instead of choosing the right one. Peer pressure in play.

Loss Aversion

People detest losses more than they enjoy gains

• losses are 2x more memorable than gains

Endowment Effect

the notion that we easily attach ourselves to things and then value them much more than we valued them before we identified with them.

• People will make decisions to protect their endowment that they would never have made in the first place.

• People don’t like to lose so they will protect themselves as much as possible

Groupthink and Deindividuation (will be on exam)

When people are in a group, they will often develop ideas of the group instead of having their own beliefs. Taking on the identity and values of the group.

• the perceived loss of individuality and personal responsibility that can occur when someone participates as part of a group.

Enron Scandal

Involved dubious accounting scandals because the employees all followed each other and did not speak up/question wrong occurrences. Hid financial losses.

• This occurred due to

  • Diffusion of responsibility-

  • Lack of open dialogue-

  • Groupthink-

  • Outsourcing-

  • “It’s not my job”

Moral Reasoning

a systematic approach to making ethical decisions—logical argument and persuasion with a structured process

• an intellectual means of defending our ethical judgments against the criticisms of others.

The process of moral reasoning can be carried out if individuals have knowledge and skills in these 2 areas

• moral context

• philosophical foundation of moral theory

• Critical thinking

Categorical Imperative

A philosophical principle that evaluates actions by asking if they could become universal laws. Principles become universally bound–without exceptions. Underlying principles are right or wrong regardless of circumstances.

• under no circumstances is lying acceptable

• principle that Immanuel Kant based Deontology around

Greatest Happiness Principle

“Actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.”

• Ethical choice produces the greatest good for the greatest number of people.

• Net or Accumulated Benefits for all stakeholders in the ethical dilemma or situation

Consequentialist

Focused on outcome

• The ends justify the means -

• as long as the great good is produced for the greatest number of people

• utilitarian principle

Non-Consequentialist

Emphasis is on acting principle and universal moral duties without regard to consequences

• Motivation– not result is important

• It does not matter what happens at the end

• deontological principle

Utilitarianism

Determines right from wrong through the outcomes. Greatest happiness for the greatest number of people.

• Greatest Happiness Principle

• Consequentialist

• Focused on the outcomes

Utilitarianism Class Examples

• The hospital has four people whose life depends on transplants. A person walks in. Even though you can take his organs and save those four people, you just killed a man. That is the limitation.

• Most commonly used principle in Business

• Cost/Benefit Analysis

• Maximizing Goals

Utilitarianism application to Advertising

ads that appeal to ethical values and collective good to influence consumer decisions.

John Stuart Mill and Jeremy Bentham

British Philosophers responsible for creating the greatest happiness principle

Advantages of Utilitarianism

Can be used to benefit the environment, consumer well-being, managing money, and the overall safety of employees

Disadvantages of Utilitarianism

• we cannot predict the future, which is why it is hard to see if the outcome is positive or negative

• Brings up ethical issue of what each person sees at the greatest good

• Does not account for values

Deontology

Emphasis on acting on principle or according to certain universal moral duties without regard to the good or bad consequences of their actions. Focus is on the action.

• non-consequentialist

• duty based ethics

• the ends do NOT justify the means

• Categorical Imperitive

Deontology Class Examples

Examples wrong in the eyes of Deontology

• it’s hard to be a little girl if you are not - stop childhood obesity-

• Will meth change the way I look

Deontology application to Advertising

• Avoiding misleading or manipulative content, staying truthful about product features.

• Respecting consumer autonomy by not exploiting vulnerabilities.

• Upholding commitments, like honoring promises made in ads.

Immanuel Kant

Philosopher who dubbed Deontology and believed that humanity should never be treated as a means to an end, regardless of whether the end is good or bad. It is the means that are important, not the end.

• believed in universal moral duties

• believed in duty-based ethics

Advantages of Deontology

• Concrete rules allow moral agents to not have to predict the consequences of their actions

• Deontological theories are more predictable, would be considered a truthful person

Disadvantages of Deontology

• A moral standoff occurs when there is a conflict between two equally plausible rules.

• Ex: Do I steal this expensive drug to cure my dying wife?

• Difficult to apply general principles to specific unusual circumstances

• Too uncompromising for the complex world, we live in

• there is no room for nuanced situations that are more complicated. There is no subjectivity

• Short-sighted when it comes to the outcomes

Video Missile Example for Deontology

Virtue Based Ethics

Philosophy focused on the individual/moral agent. Observing good behavior will translate to good habits.

• Golden Mean

• concerned around character building rather than the decisions one makes

• being a virtuous individual will find the balance between the extremes

• potential for actualization (self-fulfillment, self-awareness)

• we learn virtues by observing and modeling others virtuous behaviors

Virtue Based Ethics Class Examples

Batman does not kill the Joker even though he keeps escaping jail.

• The Utilitarian answer would be to kill Joker so that he can no longer harm others.

• The Deontological answer would be to give up being Batman because he was a vigilante who was wanted by Gotham.

• The Virtue answer is to keep the Joker alive, because it would against Batman’s morals to kill Joker, but continue to try and keep him in jail and from harming others.

Virtue Based Ethics application to Advertising

Managers and practitioners must learn these virtues which are good habits. A company led by virtuous individuals will produce a mostly ethical company.

• Role-modeling behavior.

• Positive behavior from higher-ups will trickle down to the employees and overall create a positive brand image

Aristotle and the “Golden Mean”

provides a moderate solution in those cases where there are identifiable extreme positions, neither of which is likely to produce satisfactory results.

• not necessarily a midway between the two extremes. It is the righteous/fair solution for both sides.

• “We are what we repeatedly do. Excellence, therefore, is not an act, but a habit”

Advantages of Virtue Based

Good behavior leads to good decisions. A virtuous person will make good decisions.

Disadvantages of Virtue Based

• No specific rules or procedures to live by

• Very subjective. Moral compasses are different.

• Golden mean not always predictable

• Less useful process in moral reasoning–because based on moral character and not systematic means of specific situations

• Assumption people aspire to a higher level

Defamation

any false information that harms the reputation of a person, business, or organization. Includes libel and slander

• Defamation = Malice

• Knowingly publishing something that is false: or

  Reckless disregard for the truth

Slander

refers to verbal defamatory statements (more fleeting)

Libel

refers to defamatory statements that are published or broadcast (more permanent)

Defamation Class Examples

Evidence needed to win a defamation case

• The published statement

• Identification of the plaintiff in the defamation text

• Harmed the plaintiff’s reputation

• Made a false statement of fact

  • Statements incapable of being proven true or false, known as “pure opinion” are not defamatory.

• Had at least some level of fault.

  • For a plaintiff who is a public official or public figure, they must prove the statement that you published was with “actual malice”

Why is the law NOT sufficient

• Law represents the moral minimum.

• Law is reactive and slow to change.

• The problem may not be understood well enough to inspire legislation.

  • Ex. Privacy issues

  • Ex. Social media and data collection → Mark Zuckerberg being interviewed, horrible interview

  • Ex. Multifaceted and layered issues that people do not know the solution to, which leads to no legislation.

• Legislation to solve one problem may create another equally difficult problem

• Political interests often outweigh ethical judgments.

• Ethical judgment should also include decisions about issues that are not currently regulated.

First Ammendment Protections

1. Speech

2. Hateful speech is actually protected

3. Press - debate on public issues should be uninhibited, robust and wide-open

4. Religion - the government can’t impose a state religion on the public and must recognize the right of the people to worship

5. Assembly - right together in peaceful public protest

6. Petition - right to ask the government at any level to right a wrong or correct a problem without fear.

• Evolution of “Speech” definition to include expression of ideas:

• Marches, picketing, arm bands, peace signs, flag desecration, literature, and artistic expression.

• Recent expressions:

  • Kneeling during the national anthem

  • Women's rights are human rights

First Amendment Exceptions and Restrictions

“You cannot falsely yell fire in a crowded theater”

• Schenck vs. United States (1919)

  • Cannot state there is imminent danger when there is not

• Obscenity (child pornography)

• Commercial speech (until 1970s)

• Libel

Characteristics of Commercial Free Speech

done on behalf of a company or individual. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

• Advertisement of some form

• Refers to a specific product or service

• Speaker has an economic motivation for speech

Commercial Free Speech Definition

speech that proposes a commercial transaction.

Bigelow v. Virginia

case in which a company posted an ad for a service that allowed women to go to NY to obtain an abortion

• Abortion was illegal in Virginia-

• Virginia law prohibited ads regarding abortion

• Supreme Court sided with the company Bigelow

• Bigelow argued that providing this service was in “constitutional interest” to the general public

• The advertisement in question contained important information in the “public interest,” which went beyond merely informing readers of a commercial service.

  • The court feared that the Virginia statute had the potential to “impair” nation and interstate publications which might choose to carry similar advertisements.

First National Bank v. Bellotti

Massachusetts law limited corporate spending on certain political issues unless the corporation’s interests were directly involved. First National Bank and other corporations challenged this law as they gave corporate contributions to ballot incentives to aid in speaking out on public issues.

• Supreme Court sided with First National and stuck down the Massachusetts law

• Corporations providing funds to political and public issues is now protected under the First Amendment as free speech

Central Hudson Case

During the oil crisis in 1973, The Public Service Commission (PSC) banned language promoting electricity to conserve remaining fuel sources due to a shortage of electricity and fuel. PSC continued this ban after the crisis was averted–Central Hudson Gas sued to reserve their first amendment rights of free speech through commercial free speech.

• Supreme Court ruled in favor of Central Hudson Gas

• This case established a four-part analysis for commercial speech case that is used today.

• Determines whether the government has reason to regulate the commercial speech.

New York Times v. Sullivan

New York Times published an advertisement supporting Martin Luther King Jr. and criticizing the Montgomery, Alabama police. The ad contained minor inaccuracies, and L.B. Sullivan, a public official, sued for defamation.

• Supreme Court ruled unanimously in favor of the New York Times

• established the “actual malice” standard as the federal level

• This means that public officials must prove that false statements were made with knowledge of their falsity or with reckless disregard for the truth to win a defamation lawsuit

• took the issue of Libel out of the state’s hands and into a strong federal rule

• affirmed First Amendment rights for some forms of advertising

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

Virginia Citizens Consumer Council challenged a state law that prohibited pharmacists from advertising prescription drug prices, arguing that it violated consumers' right to receive information.

• The Court ruled in a 7-1 decision that the First Amendment protects commercial speech, such as price advertising, because it serves the public interest

• The content not motivation is important (not the economic motivation)

• Both the individual consumer and society may have strong interests in the free flow of commercial information.

• Justice Blackmun asserted that the First Amendment not only includes the right of the speaker to speak but also the right of the listener to receive information

• Continuation of importance of public interest.

Central Hudson Test

a test developed to determine when commercial speech could be regulated under the First Amendment.

• Is the ad lawful or not misleading?

  • If no, regulation is constitutional (the ad is illegal or misleading)

  • If yes, proceed below.

• Does the government have substantial interest to protect?

  • If no, cannot regulate.

  • If yes, proceed.

• Does the regulation directly advance that substantial interest?

  • If no, cannot regulate.

  • If yes, proceed.

• Is the regulation “not more extensive than is necessary” (is it overdoing it, overreaching?) to serve that interest?

  • If no, cannot regulate.

  • If yes, regulation is constitutional.

Elements of a Brand

• The Name

• The Symbol

• The Slogan

• Sound/Sonic identity

• The Trade Dress

Trademark

“A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.”

• Identifies the source of your goods and services

• Provides legal protection for your brand

• Helps you guard against counterfeiting and fraud

• Protected at federal and state level

Trade Name

the basic core indicator of the brand

Trade Dress

the package, product design, or any other distinctive feature that consumers associate with the brand.

• Ex: the shape of a Coca-Cola bottle

• Ex: McDonald's color (happy meal), Levi's red tag, shape of Hershey's kiss, Tiffany blue.

• Target, John Deere, UPS, T-Mobile, UT orange

Taylor Swift and Trademarking Examples

• Her trademark covers the use of her name in various contexts, including merchandise, music, and entertainment

• Taylor Swift is trademarked because it is a brand.

• Her music tour names and song titles are trademarked. Files under artistic expression.

• All her album names, meredith & olivia, etc.

In Class Trademark Examples

• National Football League:

  • Dallas Cowboys, New England Patriots, New York Giants, etc.

• UT vs. Carwash:

  • The carwash replicated the tower

  • The Carwashes logo, the replica tower, and the color on the logo each reflect similarity to the marks used by the University

• UT and Donut Palace 1:

  • Hook ‘em sign as donuts. UT sent a cease and desist letter claiming the donuts was in violation of longhorn marks.

• Beyonce & Jay-Z: Blue Ivy

  • Secured trademarks of their daughter’s name for everything, including books, shampoos, video games, and more.

  • Fought Veronica Morales (Blue Ivy Events) for 12 years to get the trademark.

• The Case of YETI:

  • Filed suit against Walmart Stores, claiming the retailer violated trademark and copyrights by selling products that replicate those of YETI.

• Louboutin - the iconic red bottoms

Sonic Identity

The sound associated with a brand

• Ex: Netflix, 21st Century Movies, Pixar

Slogan

provides additional association for the brand through a phrase, sentence, or word

• Ex: Just do it!

Consumer Confusion

If a consumer experiences this, there is plausible reason to sue for trademark infringement

• It is at the core of trademark law

• If there is no confusion there is no infringement!

• You have to prove that there is a high likelihood for confusion to occur.

• Typically evaluated using consumer testing.

Hierarchy of Trademark Distinctiveness

(lowest)

Generic

Descriptive

Suggestive Trademarks

Arbitrary

Fanciful

(highest)

Generic

tells the buyer what kind of product/service they are buying

• Salt

• NOT protected

Descriptive

word being used in a way that describes the product/service; conveys the idea of the ingredients, quality, and characteristics of the goods.

• Not easily protected, but can be with secondary meaning.

• Wheat Crackers (Wheat Thins) - they have achieved secondary meaning

• only protected WITH secondary meaning

Suggestive Trademarks

dictionary word meaning suggests something about the product

• Pizza Hut, Citibank, Kitchen Aid

• protected

Arbitrary

uses common words in an unfamiliar way, dictionary terms given novel meaning.

• Apple, Target, Dominoes, Shell

• protected

Fanciful

terms/words invented solely for use as trademarks; newly coined terms; inherently distinctive

• Google, Adidas, Nike, Exxon, Oreo

• protected

What has to happen for a trademark to be abandoned? (will be on exam)

you must use your trademark within 3 years of registering

• if not, it will be abandoned

Who has the Burden of Proof in Trademark Law?

The trademark owner (the plaintiff)

Do you have to register a Trademark to have it protected?

You DO NOT have to register it with USPTO, but you get more protection if you do.

What is the benefit of having a protected trademark?

• National priority goes to trademark owner

• guaranteed access to federal courts, and procedural benefits.

Secondary Meaning

consumers recognize descriptive trademarks as a designation of a particular source.

• Once you can show that your descriptive mark has achieved a secondary meaning, you have developed a protectable trademark.

• Achieved through consumer research to prove that consumers associate the element in question with a specific brand.

Genericide

the loss of trademark rights when a term enters common usage.

• When potential customers think of a trademark as a term for a category of products, the trademark becomes generic and is no longer entitled to protection.

• Ex: Aspirin, cellophane, thermos, zipper, ziploc

• This is confirmed by consumer testing

Copyright

protects original works of authorship fixed in a tangible medium of expression, whether they are published or unpublished.

• Protects books, movies, music, software, and art.

• Does not protect facts, ideas, systems, or methods of operation

• Applied to a work even if there is no copyright notice on the work and even if the author has not filed for registration.

Copyright Purpose and Protections

To protect original works of authorship, giving creators exclusive rights to use, distribute, and modify their work

• It ensures that artists, writers, musicians, and other creators can control how their work is used and receive recognition or financial benefits.

Copyright Protection:

1. Literary works

2. Musical compositions and recordings

3. Pantomimes and choreographic works

4. Visual art

5. Films, TV shows and videos

6. Architectural work

8 categories within the copyright act

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings

8. architectural works

Categories/Things NOT protected by copyright

• Ideas and fact

• If someone voices an idea, they do not have ownership of that.

• Need tangible form

• Procedures, methods, or systems (patent law)

How and when is copyright created?

Copyright exists the moment it is created and in a tangible form

It is created automatically

Copyright Holder Rights

• Reproduce the work

• Distribute copies

• Perform or display the work publicly

• Creative derivative (ex: adaptations, sequels, remixes)

  • Ex: it ends with us, normal people, wicked, etc.

• License or sell rights to both

Duration of Copyright

For individual creators - lasts for the life of the author plus 70 years after that

For anonymous works or works made for hire (hire someone else to make the work), the copyright term is 95 years from the year of first publication or 120 years from creation, whichever is shorter.

Public Domian

• Refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.

• The public owns these works, not an individual author or artist

• No permission is needed to copy or use public domain works.

• A work is generally considered to be within the public domain if it is ineligible for copyright protection or its copyright has expired

• Public domain works can serve as the foundation for new creative works and can be quoted extensively

Public Domain Class Examples

• Winnie the Pooh entered public domain Jan 1, 2022

• Van Gogh - Starry Night - Washington Post

• Mickey Mouse entered public domain on Jan 1, 2024

  • The expiration of the copyright would potentially allow others to use and reproduce Mickey Mouse without infringing on Disney’s exclusive rights

  • The copyright law for Mickey Mouse expired Jan 1, 2024, marking 95 years from the character’s creation in 1928

Obama Hope Poster - Copyright Example

The Associated Press and the artist Shepard Fairey had a copyright battle over the unlicensed use by Fairey of an A.P. photograph of Obama in the memorable 2008 “hope” poster.

Centered around Fairey’s unlicensed use of an A.P. photograph for the iconic “Hope” poster.

This resulted in a settlement that included shared rights and collaboration, while both parties maintained their positions on copyright infringement

Fair Use

allows an author to use limited amounts of work without asking for permission from the author of the copyrighted work.

• the most famous exception to copyright law

Fair Use Examples

This includes:

• News reports

• Research

• Critiques and commentary

• Scholarship - universities and schools (similar to research)

Four Factors to Determine Fair Use

• The purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes

• Nature of work (factual versus creative)

• Amount of original work used (small portion vs. majority or entirety)

• Effect on the market for or value of the original works

  • Does it impact the original creator’s ability to make money

Who owns the copyrighted content in Advertising?

Ownership depends of

Copyright Arrangement: Created in House

Created in House Advantages

Created in House Disadvantages