Category Archives: Social Gaming

7 Legal Issues For Pokemon Go: Gotta Read Them All!

pogologoPokemon Go has taken the planet by storm.  In its firstweek it surpassed Twitter for daily active users, it became the top grossing US iPhone app in just 13 hours (despite being a free to play game with optional purchases), and mobile users are spending more time on Pokemon Go than on Facebook.  Pokemon Go has become the most popular Android app for daily users, surpassing the previous leaders by nearly 300%.  And it did that in a span of days.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone.  If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity.  There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country.  With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now.  This isn’t specific legal advice, just us thinking about the intersection of new technology and the law.  And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited.  Players do not see other players while wandering their virtual map overlays on real world maps.  The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future.  The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist.  Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet.  So the game is not a social media platform…yet.  But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate.  This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge.  So stay tuned.  And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality).  The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs).  In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below).  One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience.  When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure.  We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo.  There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

This Brookstone in the Houston Galleria invites players in with a discount.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions.  For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement?  One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach?  But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities.  In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way.  Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways.  These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law.  This is the body of law that covers situations when a child illegally enters private property and is injured while on that property.  While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury.  Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area.  There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing.  That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured.  The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon.  The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition.  These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property.  When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random.  The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently.  It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place.  If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs).  If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players).  But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place.  So both players and landowners may want to consider the risks when playing.

5. Pokemon Go and the idea of appropriate play

Outside of the physical risks that players may be subjected to while hunting Pokemon, there is also a growing concern of whether playing the game is appropriate in certain locations.  Within the first week of the game’s launch a story circulated about the Holocaust Museum in Washington, DC asking people not to play the game in the museum.  Arlington National Cemetery also asked players to refrain from using the site as a playable location.  The sites said they would reach out to the game creator to see about excluding the sites from the game but so far there does not appear to be an easy way for property owners to exclude their land from the game.

The idea of whether a location is appropriate or not is not limited to large national sites, though.  Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration.  And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments.  Or take, for example, this PokeStop in Austin, Texas:

faniapokestop

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet.  Is her headstone being a PokeStop a good or bad thing?  Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name?  Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby?  While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions.  And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose.  Typically these laws were used to prevent gang activity or break up groups that might lead to trouble.  With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned.  Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal.  The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors.  While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens.  While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around.  And authorities may be suspicious of large groups gathering at night.  Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose.  Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location.  Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals.  There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon).  It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable.  Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money.  On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught.  Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing.  You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon.  This apparently triggered the man to attack the player with a knife.  So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same.  It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game.  Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on?  We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

 

 

 

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My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.

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RIP Pin It To Win It: A Practical Guide To Pinterest’s Contest Requirements

PitwitombstonePin It To Win It contests are dead.  At least in the format most people are used to.  In a way, they can continue by eliminating just one word–the second “It.”  If you want to know why, this guide should help you understand.

This all came about when a well-respected blogger and marketer, Amy Bair of Resourceful Mommy, received notice that the Pinning Parties she held for various clients were violating Pinterest’s terms.  I had the opportunity to speak with Amy in the midst of some back and forth with her and Pinterest and I’m glad to see some additional guidance come from Pinterest in terms of emphasizing the rules they have put in place and how they will enforce them.  Here’s Pinterest’s latest blog post on the subject and their Acceptable Use Policy which contains the contest restrictions.  I’ve prepared this guide to give some additional practical guidance, similar to the Facebook guide a few weeks back.  As always, don’t forget about my important disclaimer to the side and be sure to check with your own attorney for specific applications to your business/brand/whatever.

Before getting into the practical aspects of the Pinterest rules, it’s helpful to go over the Social Media Marketing Prime Directive.  At least, that’s what I call it because SMMPD sounds funny.  It’s something that my friend Jim Dudukovich (a marketing attorney at a very well-known brand) likes to say a lot: “Social media was not made for marketers.”  His other favorite saying, “My Vespa is broken” is also good, but less applicable.  Social media sites need marketers to survive (mostly in terms of the advertising revenue they bring in) but the sites are made for the users, not the marketers.  So when a platform is making rules about marketers they are usually doing so with the user in mind, not the marketer.  That can, quite frankly, make the marketer’s job harder in how things change and evolve, but ultimately it should help by keeping users on the platform that marketers want to use.

Keeping that Prime Directive in mind, along with Pinterest’s stated purpose of being about their users’ inspiration, let’s take a look at their contest rules.  These are the things that you cannot do for a contest on Pinterest:

Suggest that Pinterest sponsors or endorses you or the promotion

Not mentioning these things is something obvious to larger marketing organizations but a good point for smaller groups to understand.  Sponsorship brings certain legal liabilities and endorsement carries some legal and disclosure requirements–none of which a platform like Pinterest wants.  You can run a contest on Pinterest, just don’t say that the contest is brought to you by Pinterest or Pinterest loves this contest (even if they secretly do).

Require people to pin from a selection

This is a big one and what effectively kills Pin It To Win It (PITWI) contests as we know them (they’ll evolve, read on).  The traditional PITWI contest asks you to pin an item from a web site or section of a web site and then they will have one user win something they pinned–one item or an entire collection, whatever.  This kind of contest is no longer allowed because contests cannot limit where users pin from.  You can have them pin on a topic, but not from a particular site or only items of a particular brand.

What remains unsaid is whether you can require a single pin for contestants from a collection as part of the overall entry.  I know many contests do this as a way of tracking users entering the contest but that arguably violates this requirement and may best be avoided.

This rule will probably make many brands less interested in doing PITWI contests since they can no longer have users showing what brand items the users like best–instead the users may select items from competing brands or things not related to the brand at all (note that the rule says “selection” and not “web site”–to me that means you can’t even restrict pins to a particular product or line but allow pins to come from multiple sources and any potential subject).

Since brands running PITWI contests typically want the It to be an item they make, this limitation just isn’t possible anymore.  If someone wants to enter your contest without pinning your item, you have to let them.  And since they can’t win a zero prize (without a brand appearing heartless at best) you’ll likely have to set up some alternate prize if you can’t give them what they pinned so the winner still receives something.  For example, I could see a kitchen store running a PITW (notice the dropped final I) contest where users pin their favorite kitchen things–recipes, gadgets, design, etc.  When the winner is selected perhaps the rules state the store can either choose to give the winner something they pinned (blender, etc.) or a gift card.  That seems to meet this requirement but possibly doesn’t have the same brand benefits as an old PITWI contest.  Which, according to the Prime Directive, is okay.

Make people pin your contest rules

This one seems to address a logistical rule that some contests put in place for two very good reasons.  First, contest rules don’t inspire people.  Unless you’re a social media law geek like me or a marketing law geek like Jim.  Since Pinterest is trying to makes pins be about inspiration, it makes sense to reduce pins that don’t inspire people.  And second, reducing those re-pinned rules cuts down on the spamminess (it’s a word because I say so) of a contest.  If you’re looking at a general Pinterest feed you don’t want to see a bunch of rules in between recipes, craft ideas, and other things designed to inspire you.

Run a sweepstakes where each pin, board, like or follow represents an entry

Again, this rule cuts down on the spamminess of a contest.  Keeping these activities authentic will help keep users on Pinterest, so it meets the Prime Directive too.

Encourage spammy behavior, such as asking participants to comment

First, please note that if spammy is a word then so is spamminess.  Case closed!  Also, this is a catch-all for what the previous two rules were already hinting at.  Here, Pinterest is even acknowledging that there may be some super clever marketers out there who come up with a way to run a contest that meets the letter of all these rules but still looks like spam when other users browse Pinterest.  That won’t cut it.  So you can be creative, but you’ll need to avoid spam.  Just like life.

Ask pinners to vote with pins, boards, or likes

Another spam-prevention rule but also a really good idea because objective voting to determine a winner always gets gamed.  And that makes people participating in your contest very unhappy.  Here it could be even worse because someone could create a million boards and that doesn’t help anyone.

Require a minimum number of pins

Less spam, less work for entrants.  Yes, it means someone could enter your contest with a single pin that potentially has nothing to do with the actual contest.  But that may also inspire marketers to do something a bit more creative than just having all the entrants put in a pool and a random winner is selected.  For example, nothing in this (or other rules) prevents you from having a contest where the board that provides the best inspiration to “The Greatest Gift I Could Give My Grandfather.”  Maybe the winning board has one pin, maybe it has 5 that tell a great story.  The marketer will need to figure out how that contest is judged and it will definitely require more work than a random drawing, but wouldn’t that get better entries and provide more inspiring content (a win for the brand and for Pinterest)?

 

Ultimately these changes may require marketers and brands to abandon some of the old ways of doing contest on Pinterest, but if they can adapt their plans or come up with new ways of running contests they may find a better way to engage Pinterest users and ultimately promote their brands within that population.  Just remember–spamminess is a word and it’s bad.

 

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Practical Guide To Facebook’s Promotion Changes

Now 100% Permissible!

Facebook made significant changes to their Facebook Pages Terms a few weeks ago that dramatically impact the kinds of promotions allowed on the platform. I briefly discussed these changes in The Great Facebook Legalization post, and although Facebook provided a blog post about the changes and a nice two-page downloadable guide to the changes, I know many people who were still confused.  I may or may not have been one of them.  But last week I had the privilege of chairing the Digital Advertising Compliance: Sweepstakes, Social Media and Promotions conference in New York City.  One of our speakers was an attorney from the Facebook policy team that did a great job explaining the changes.  I thought it would be worth describing those changes in a bit more detail based on the materials she presented.

To keep things simple, I’ll use the term promotions for both contests and sweepstakes.  If you don’t know the difference between the two then you need to consult with your marketing attorney.  Truth be told, any time you’re running a promotion it’s a good idea to consult with your marketing attorney or any reference materials a marketing attorney may have provided to you.

What Hasn’t Changed

First, it’s important to note some big things haven’t changed.  Chief among them–anything technical.  The new rules do not implement any technological changes, it is simply Facebook’s policies that are allowing these activities to take place.  Brands may have done some of these activities before (such as “Click Like to win!” sweepstakes) and if Facebook found out the promotion was shut down.  Now, Facebook won’t shut them down.  So it’s important to realize this is just a change in rules.  And rules can always change, so you should always see what the current rules are whenever you plan a promotion on Facebook or any other platform.

Going along with the notion that nothing technical has changed, another big element to keep in mind is that Pages run by brands still cannot send private messages to individuals.  So even though we are now entering a time when a promotion could be run on Facebook without an app and just on the page, there is no new functionality to notify a winner.  If that matters to you (and it should) then you’ll need to consider how to notify the winner when you can’t message them (like if you want to verify qualifications prior to announcing them the winner).

The Big Changes

Prior to these policy changes the only way to run a promotion was to use an application.  Unless you had the resources to write the code and provide some snazzy images yourself that likely meant you needed a third party to develop your app.  Now that restriction has been limited and the following items may be used in administering a promotion:

  1. Like to enter.  Post a status update or photo on your page and your fans can simply click the Like button to be entered into a drawing for a chance to win.  It will still fall to you to gather all the entries and randomly select one to win, but the mechanic itself is now permitted.
  2. Comment to enter.  Similar to clicking Like, you can also have fans provide a comment (funny caption, short statement, answer to a question, favorite Jesse Pinkman quote, etc.) as a way of entering a promotion.
  3. Post on page to enter.  You can also have your fans enter a promotion by posting to the brand’s page.  You would probably want to include some way of differentiating between promotion entries and regular postings to your page, possibly including a specific #hashtag for your promotion, but that’s up to you.
  4. Message a page to enter.  This one is a bit strange, since most brands tend to run promotions to generate public interest.  But in the event you’d like to run a secret promotion where the entries are unknown to anyone but the brand, then you are free to have fans message the page as a way of entering the promotion.
  5. Use Like as a voting mechanism.  You can allow fans to click Like on status updates or photos as a way of voting within a promotion.  How you present all the options and how you consider those votes (see Best Practices below) is up to you.

Still Not Allowed

Although those five items are now permitted by Facebook, there are still some activities that are not allowed in terms of promotions on Facebook.

  1. No entry via status updates with a #hashtag.  While you can have fans enter a promotion by posting something to the brand’s Page with a #hashtag, you cannot have a promotion where a fan enters by making a post on their own Timeline that includes the #hashtag.  Part of this restriction is technical–it would require you to explain that the update be public or else the brand can’t see it when it’s time to collect entries–and part of this restriction is to keep Timelines from looking like spam.  But if you want fans to enter by posting something, it has to be posted to the brand’s Page, not their Timeline.
  2. No entry via tagging people in a photo if they aren’t in the photo.  You cannot run a promotion, for example, that has a picture of a product and encourages fans to tag themselves and others on the photo for a chance to win it.  Tagging is reserved for photos that actually have the people in the photo.

Best Practices

These changes may take some time to be sucessfully integrated into your own marketing efforts so I suggest some best practices as you start to use them.  These are all in addition to the Best Practices suggested by Facebook in that downloadable guide I linked above.

  1. Think about notifying the winners.  As we mentioned before, brand Pages have no new way of communicating directly with promotion winners.  This was less of a problem when you ran a promotion through an app that could link to a privacy policy and collect an email address to notify winners.  Now many brands will be tempted to run a promotion entirely on Facebook but not think through how they will notify a winner.  This can be especially tricky if you have a potential winner but need to verify the entrant meets certain qualifications (over 18, can travel for the grand prize, etc.).  
  2. Don’t use Like as the only way to pick a winner.  Feel free to use voting (Like or otherwise) as one factor in picking a winner but not the only one.  It always ends poorly.  Always.  People will accuse others of cheating, of trading votes, of making up user accounts and so on.  Using the Like button is very convenient, but it also has the added downside of a fan deciding to Unlike later on which can distort results.
  3. Talk to an attorney.  The good news is that running promotions on Facebook is now easier.  The bad news is that running promotions on Facebook is now easier.  If you don’t know the legal risks you’re running up against then you need to talk to an attorney.  If you’re planning on running a contest for a $5,000 grand prize and self-administer, you need to talk to an attorney (and then a third party administrator).  If you’re planning on giving away a single prize of substantial value, you need to talk to an attorney (and if you’re asking “What’s substantial value?” then go talk to the attorney).  If you’re thinking you can run a global sweepstakes you really need to talk to an attorney.  Promotions carry legal risk even (especially!) when they’re simple to run.  This is not to say you’ll need to go through a lengthy legal review every time you want to run a promotion but you should know your limits and when others need to be looped in.  And you want to know the only way you can discover those limits?  That’s right, talk to an attorney!

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Filed under Commercial Activity, Consumer Protection, Facebook, Laws, Social Content, Social Gaming, Social Marketing, Social Platforms, Terms and Conditions

Video Games: The Next Great Social Battle Or The Final Fight?

Older, offline multiplayer games such as Hide-and-Seek had incredibly detailed visuals but a distinct lack of downloadable content.

The next generation of video game consoles is shaping up to be a pivotal battle between social media and traditional media.  Video games are rarely considered traditional media, but if you look at the looming distinctions Sony and Microsoft are bringing to the marketplace you see the same central battles over social media.  The outcome will certainly have repercussions in the video game industry but probably several other industries as well.

Oh, and if you’re silently laughing to yourself because you think the video game industry is just a small diversion, it might be good for you to know that the video game industry is expected to grow from $67 billion worldwide in 2012 to $87 billion by 2017.  And that number doesn’t even touch the other media consumed by people with video game hardware (movies, music, etc.).  But if you still think that industry isn’t very large, consider this: the video game industry is almost twice as large as the entire global market for movies–those made just under $35 billion in 2012.

Although the video game industry has several significant segments, the home consoles are the main event and the upcoming eighth generation is all about media.  With every other generation before there were significant differences in hardware–processors, graphics cards, etc.–and game delivery–cartridges versus game discs versus DVDs.  This time, the hardware is virtually identical as this comparison shows (let’s leave out the Wii U because it’s been a flop).  What’s been different this time is how each company is treating media and sharing.

Sony fired the opening shot in this latest battle when it announced the PS4 back in February.  The announcement event itself received mixed reviews because for a console announcement it was surprisingly devoid of the console itself.  Instead, the event featured several next generation games and also talked a great deal about social media.  The new system’s controller was introduced and although it had a few updates here and there the one truly new feature was the Share button.  Now gamers would be able to easily upload videos made from within a video game–either through Sony’s network or on more traditional social media.  Players would also be able to ask for help from other players in the middle of a game–you could help a friend out by clicking a button on a Facebook post that will drop a power-up into your friend’s game or hop onto your PS4 and jump into the game to assist.  These aren’t required functions, but they are all built into the platform with the hope that developers will utilize the new functions and players will enjoy them and demand more.

Microsoft’s latest console, the Xbox One, rather than focusing on bringing the game experience to more platforms is instead about bringing more content into the Xbox environment.  Their announcement focused on how the new console can be the hub of your living room entertainment and how voice control can easily let you switch between watching TV and playing games.  This new feature was not warmly embraced by the gaming community.  Gamers have been screaming at their video game consoles for years, we didn’t really expect it to respond.  But with these early console announcements we were already seeing a split.  Sony was enabling gamers to share their experiences with the world and connect with their gaming friends in multiple ways.  Microsoft was setting up the ultimate gaming cave and allowing more content to come inside that could be controlled by their box.

That small split widened into a huge rift with this week’s formal announcements at E3, the premiere video game industry event.  Specifically, the battle over used games shows where these companies sit on the concept of sharing and social gaming.  Microsoft has been changing their story about sharing games and the used game market (which accounts for over $1 billion in revenue just at Game Stop alone), perhaps in response to players’ questions.  The latest use game position appears to be that Microsoft developed games have a complicated policy–you can give them away once, but allow access for a certain number of family members, and you can share with a friend so long as you are at their console and logged in.  But that’s just Microsoft developed games–for other developers they can change permissions and could even require a transfer fee so that even if you buy a used game at a store you may have to pay an additional fee to the developer.

Sony has responded with this 22-second video that shows how games are shared on the PS4.  SPOILER: You give your friend the disc.

Leaving aside the implications for the used game or game rental markets, this differentiation shows the perspectives being brought to the industry by the two largest players.  Microsoft may not be forcing developers to disable sharing, but they’re certainly enabling increased controls in the face of a more open Sony environment.  The same Sony environment which allows the gaming experience to be shared across multiple social media networks and friends.

Social media is all about conversations–that’s canon for social practitioners.  To a lesser extent, it’s also all about sharing, because it’s really hard to have a conversation by yourself.  Not impossible, but also somewhat alarming if you’re successful.  As content areas adapt to this new social world–movies, music, books, and now video games–there will always be a struggle between the old guard that wants to maintain its traditions (and revenue stream) and the new guard that embraces the social world and sees opportunity along with uncertainty.

With video game consoles, the biggest battle will be in the quality of the games themselves.  But to the extent the games are fairly even, look for this difference in approach to the social aspect of gaming to tip the scales towards one side of the battle.

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Filed under Commercial Activity, Social Content, Social Gaming, Social Platforms, Social Tracking

I Never Meta-Contest I Didn’t Like

Ernie Cline not only wrote an awesome book but he created an awesome contest to go along with it. That’s two kinds of awesome that most people haven’t done.

Last week I had to privilege to co-chair the ACI Social Media, Sweepstakes, and Promotions conference in New York City.  I chaired the event last year when it was focused more on social media and the business analytic technology behind it all, so it was interesting to see the shift in focus and the increased attendance (easily twice as big this year).

Conference chairs have some very important responsibilities during the conference: we introduce speakers and hold up time cards to keep them on schedule.  It’s grueling work.  We also are given a 15 minute time slot at the start of the day to make any introductory comments.  Last year, since I chaired both days, I spoke one day about my favorite parts of Dell’s social media team and the other day I made it a bit more personal talking about all the ways social media helped me out when my wife ended up getting an emergency appendectomy in New York City about 6 weeks prior to the conference.

This year, since I only chaired one day, I decided to do something a little different.  I chaired the first day which had more of a focus on sweepstakes and promotions, so I spoke about how the essence of those contests is something many people and companies have lost: the game.  Sure, a sweepstakes is nice if I think I can give something of little value (my email address and name) in exchange for a big prize.  But over time I realize that I get more email than I wanted and I never win, so they aren’t fun.  Instead, the best promotions are fun games by themselves and even if I win nothing I have a blast participating and tell all my friends about it.

To illustrate the point, I spoke about my favorite book from the last several years, Ready Player One.  If you haven’t read it, you should.  In the near future, everyone goes to school, works, and plays in a virtual reality system called OASIS.  The creator of the system died and left his entire fortune to whoever can complete three challenges in the game.  Since this programmer loved 80s pop culture, movies like WarGames and video games like Joust and music like Rush all weave themselves into the game.  So this is an entire book about a contest with billions at stake.

When the paperback version of the book came out, Ernie Cline, the author, decided to have his own contest.  He devised three challenges and whoever completed them first would win a replica of his car (he has a DeLorean made to look like the car from Back to the Future).  The first two stages were some relatively simple retro-style games (think Atari 2600, if you can remember that far back).  The third stage was a doozy–set a new world record in a video game.  Yikes.  But a few days later, the prize was won. Here’s Ernie’s blog post with a note on how the winner did it if you’re interested.

My message to the lawyers and marketers attending the conference was to of course learn all they could those two days to make sure their contests complied with legal restrictions and platform terms, but also to make their games fun.  And to inspire them, I held a contest of my own.  Before each speaker or panel I would give them a random word or phrase (like “Zombies” or “Swiss Cheese”) and anyone who incorporated the word/phrase into a comment or question could get 1 or 2 points (depending on how creative it was).  It was a game anyone could play, from speakers, to observers, and I’m happy to say every round we had at least one participant (and when people did work it into a comment or question there was usually a bit of applause from the crowd).

I also devised some contest Easter Eggs of my own.  Sadly, nobody found them.  The first was in my speaker bio where I said the first person to tell me “Bacon is awesome!” would earn 3 points.  The second was in this blog post.  I guess people were just too busy watching all the awesome speakers to go searching.

The prize for winning was, naturally, an autographed copy of Ready Player One which Ernie graciously signed for me prior to my trip.  And I even had a consolation prize for the best comment done in the session immediately after lunch (also known as the Food Coma Session at most conferences).  I hope both winners enjoy reading the book (they hadn’t read it yet, so I got to spread some more RPO joy) but more importantly I hope the attendees saw that it isn’t hard to make a fun game out of a contest.  Something that can be much more memorable than a simple sweepstakes that the vast majority of people will forget except when they get the annoying follow-up emails they signed up for to enter.

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This Is An Easter Egg

This post won’t make sense unless you happen to be attending the Social Media, Sweepstakes, and Promotions conference in New York City. I’m co-chairing the event and I’m holding a special Day One Contest. So if you’re participating in the contest and want to score 2 points be the first person to tell me “Do, or do not, there is no try.” You have to wait until I announce the contest (it’ll be at the keynote). Oh, and you get a bonus point if you say the line in a Yoda voice. Even a bad impression counts.

For anyone else reading this, I’ll explain later. Enjoy the suspense!

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