Tag Archives: crosby

Puffery: It’s Not Just For Pastry

“Puff the magic dragon lived by the sea and frolicked in the Autumn mist in a land called Honolee.” Puff The Magic Dragon by Peter, Paul, and Mary

I love satellite radio, although I was late to the party. I resisted taking the plunge, figuring that the programmers at XM/Sirius couldn’t approach, much less duplicate, the eclectic, genre-bending variety provided by my favorite terrestrial station, WXPN in Philadelphia (which I enjoy in D.C. courtesy of the Internet). But when my trusty car expired, I replaced it with a new model that came with a free trial subscription to Sirius/XM. I took me less than the ride home from the dealership to be hooked. Sure, each station might play a limited range of music–but the sheer variety of music across the Sirius/XM spectrum is mind-blowing, not to mention all the news, sports, comedy, and last but not least, Howard Stern. On any given commute, I can be serenaded by old stalwarts like Crosby, Stills, and Nash and Neil Young, their modern-day progeny such as Dawes, Fleet Foxes, and Deer Tick, old-school and Outlaw country from Willie, Waylon, Merle, and McMurtry, and, of course, Elvis, Sinatra, The Boss, The Dead, and Pearl Jam, all of whom have channels devoted to them.

What does any of this have to do with Softrights? Not much I confess. But the other day, while flipping through the satellite dial, I alighted on Peter, Paul, and Mary wistfully singing “Puff The Magic Dragon.” Since I hadn’t heard it in years, I left the station on while my mind absorbed the story of little Jackie and his faithful dragon Puff. Soon, however, my mind began wandering, and as it often does, it wandered far afield, in this case, from Honolee to IP. Yes, Puff the Magic Dragon got me thinking about advertising law, and the concept know as “puffery.”

What is puffery? In ordinary parlance, the word conjures up someone inflating his or her chest while inflating the truth. As a legal term, “puffing” means pretty much the same thing–referring to statements so obviously vague, unrealistic, silly, exaggerated, boastful, or matters of opinion that no reasonable consumer would believe them. An ad that touts something as “better”, “best”, “the greatest”, and “finest” typically signals puffery. Or when an ad uses slippery terms like “helps”, “can be”, “fights”, and “tastes like,” it’s usually a sign that puff is sure to follow.

So what’s the significance of calling an ad puffery? Well, an ad that nobody believes or takes seriously cannot be considered false or misleading and thus should be immune from liability under the Lanham Act and state laws that prohibit false and misleading advertising.

But when it comes to IP law, there’s often a rub. One person’s “puffery” can often be someone else’s falsehood and can provoke a lawsuit. And indeed, the casebooks are replete with court decisions where Solomonic judges and juries have been called on to separate the false advertising wheat from the puffery chaff (or vice versa). And so, these claims have sparked lawsuits, even though all were eventually found to be puffery, not misleading: advertising a computer accessory as “redesigned and improved”; the slogans “AMERICA’S FAVORITE PASTA” and “Better Ingredients, Better Pizza”; Blue Cross/Blue Shield’s claim that its health coverage was “better than” a health maintenance organization; advertising a computerized chess game as “new” and “new technology” and “like having Karpov as your opponent”; Claiming “unprecedented clarity” in a laboratory computer imaging device used to study cells to detect cancer; Abercrombie & Fitch’s claim “Our most original pant since 1892 … Pure Abercrombie & Fitch design and fit”; the claim that Speedo suits help swimmers compete at the highest level; promoting POWERADE as “The Complete Sports Drink” ; and claims that HUGGIES diapers had a “natural fit” and “fit more naturally.” Each of these claims ultimately was found to be innocuous, benign, harmless, hyperbole, subjective, or mere opinion. But the advertisers had to put up a legal fight to defend these boastful ads.

So what’s an advertiser to do? For one thing, make sure you can prove any specific, verifiable claims about product performance or capability. And if your goal is to achieve “puffery” status, go big with your hyperbole, or be prepared to go to court.

QUOTE OF THE DAY: “The deepest thing in any one is the conviction of the bad luck that follows boasting.”
Gertrude Stein

Leave a comment

Filed under Uncategorized

Deja Vu: Voices of The Ages Soar

“And it gets harder, as you get older, and farther away as you get closer.”  See The Changes-Stephen Stills, Crosby, Stills, and Nash

Earlier this week, much of Greater DC remained in the dark (literally and figuratively) after a livid wind blew out the lights in homes and offices throughout the region.  Temperatures flirted with the century mark, adding insult to injury.  But three stars shone brightly on the eve of Independence Day on the stage of Wolf Trap, the glorious amphitheater in the Vienna, Va woods operated by the National Park Service.

At around 8:15 on that humid night, with storm clouds again looming, Crosby, Stills, and Nash dove into a crisp version of Carry On, the opening track from their 1971 album with Neil Young–Deja Vu.  Nearly 45 years after this supergroup released its debut album, Crosby, Still, and Nash remain icons of the Woodstock era.  And though the years have increased several waistlines and decreased a few hair lines, the music of CSN retains vitality and relevance that belies the passing decades.

Tuesday’s show presented David, Stephen, and Graham in top form.  Their vocals and harmonies remained strong and largely intact through a set lest that featured 21 songs, most of them treasures from the rich CSN catalogue.  Crosby’s Long Time Gone showcased David’s still-formidable pipes along with nimble and soulful guitar solos from Stills, one of Rock’s most expressive and underrated guitarists.  Though his voice has lost some of its range and clarity, Stills’s guitar work has never been better, as evidenced by transcendent and inventive solos on his Buffalo Springfield classic Bluebird, as well as on Wooden Ships and Crosby’s counter-culture anthem Almost Cut My Hair.   Nash, who retains his slim physique and keening tenor, was rock-solid on all of his lead vocals, beginning with the propulsive ’60s protest song Chicago, and  continuing throughout the nearly 2.5 hour set that included a spry Marrakesh Express, a somber yet muscular Cathedral, and the plaintive, intimate Our House.  

The trio and their excellent backing band closed out the opening set with Love The One You’re With featuring some of Stills’ best singing of the night.  After a short break, they returned for an interlude of acoustic music that included the lush harmonies of the alliterative Helplessly Hoping from their debut record and a moving cover of Dylan’s Girl From the North Country. 

Then, Crosby and Nash wove  special magic with Guinevere, Crosby’s love song that he dedicated to Jan, his wife of 35 years.  Though David and Graham have performed this haunting tune thousands of times, they delivered the whistful lyrics and mytical harmonies as if they had been written that morning, drawing one of the evening’s loudest and longest of many standing ovations.

The sell-out crowd, including many with lawn seats who braved a mid-concert deluge, was in for one last treat.  For their encore, CSN returned to the stage, just the three of them.  Stills to our left with his signature Martin acoustic guitar, and then Nash and Crosby, both standing empty-handed by their respective microphones.  As Stephen began strumming, we knew we were in for a rare gift.  For the first time in nearly a decade, the trio was tackling Suite: Judy Blue Eyes, the challenging, transcendent four-segment composition that opens CSN’s debut album, and which cemented their place in history as folk-rock’s preeminent harmonists.  With Stills nailing every vocal crescendo, including the prolonged verse “It’s my heart that’s a suffering, it’s a dying, that’s what I had to lose,” and Crosby and Nash recreating the ringing harmonies of the original recording, “The Suite” punctuated an incredible evening of song with an emphatic exclamation point.  This was no nostalgia act.  This was music in its purest and most resonate form.  Three voices, one guitar–voices for the ages.

QUOTE OF THE DAY: “Notwithstanding their personality, their dress and their ideas, they were and they are the most courteous, considerate and well-behaved group of kids I have ever been in contact with in my 24 years of police work.” Lou Yank, head of the police department in Monticello, New York, as reported in the New York Times August 18, 1969, during Woodstock.

Leave a comment

Filed under Uncategorized