Brand or Anti-Brand?

Sonia K. Katyal, Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name, 58 Buff. L. Rev. 795 (2010). Stacey Dogan How many law review articles begin with a scene from Wayne's World? For Sonia Katyal, such an opening is par for the course. Since she entered the scene a decade ago, Katyal's scholarship has celebrated irreverence, and examined the ways in which the law tolerates, enables, and often discourages commentary on dominant culture, icons, and in this case, brands. This essay – written for a symposium on advertising and the law at SUNY Buffalo Law School – continues the Katyal tradition. In Stealth Marketing, Katyal takes up the question of whether and how the law should deal with the increasing convergence between speech from trademark holders and speech about trademark holders. The essay picks up on a phenomenon that Ellen Goodman raised several years ago in her article, Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006). Goodman's piece had explored the various ways in which advertisers pay to slip their messages into communicative products, leaving consumers uncertain as to the objectivity or veracity of the content they consume. Goodman's inquiry focused on the extent to which the law can or should require disclosure when a business, advocacy organization, or even an arm of the government pays to have its messages incorporated into a third party's communicative work. Continue reading "Brand or Anti-Brand?"

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