Archive for the ‘Mad Men and the Law’ Category

equal-pay-nowWhen Peggy Olson closed the door to have her sit-down with Don Draper, her boss, you didn’t have to be a student of history to know it was going to end badly. When women have conversations like this with their bosses about equal pay for equal work, it almost always ends badly.

Peggy’s consciousness-raising moment probably came after her liquid lunch with Duck Phillips. Trying to lure her over to Grey Advertising, he nearly drowns her in a sea of flattery. He says he admires her “focused ambition. He calls her a “free wheeling career gal with great ideas.” He promises her velvet pillows, riches and awards. But most importantly, he tells her that as a single woman with no mortgage or family responsibilities, this is her time. “Strike while the iron is hot,” he says.

She was also encouraged by the Equal Pay Act of 1963 which passed in June. The relevant portion of the Equal Pay Act of 1963 that Peggy read about in the paper said sex discrimination would be prohibited in the workplace. Employers could no longer discriminate on the basis of sex by paying female employees at a rate less than what is paid to employees of the opposite sex who perform the same work using the same skills under the same conditions.

However, there are also some pretty big loopholes contained in the act. Exceptions are made for salaries paid in accordance with 1) a seniority system, 2) a merit system 3) a system which measures earnings by quality or quality of production or 4) a differential based on any factor other than sex…”

But it still sounds pretty good to Peggy. Now she has to get paid the same as the pipe-smoking poseur Princeton grad Paul Kinsey. It’s the law! They have the same job, and as she accurately pointed out, she does it better. Kinsey trashed talked the Madison Square Garden people in a pitch meeting. Peggy landed the Popsicle account all by herself. She does pro bono work for her church. She had to share an office with a Xerox machine. She barely makes more than her secretary. So what the hell Don, give the girl a raise.

Sadly, it’s more complicated than that. The Equal Pay Act of 1963 was the first step in a long march to equal pay for equal work that continues into the millennium. ” Much remains to be done to achieve full equality of economic opportunity,” President Kennedy said in his remarks upon the signing of the bill. “[In 1960] the average woman worker earns only 60 percent of the average wage for men–this legislation is a significant step forward.” (In 2007, women made about 72 cents for every dollar a man earned.)

Even if Sterling Cooper wasn’t pinching pennies by counting paper clips and redlining expense reports, Don would have had several ready and legal excuses to keep Peggy’s salary right where it is. Don could tell her she doesn’t have the seniority or the numbers to merit a raise and there wouldn’t be much Peggy could have done about it. The law as it was written left a lot of room for a lot of excuses employers could (and did) use to rationalize paying women less than men. In the following four decades, a dozen lawsuits, additional legislation and a very vocal women’s movement will be needed to advance the concept of equal pay for equal work.

Social factors also contribute to the equal pay problem. Peggy works for an old school, old boys advertising agency. No turtlenecks or corned beef sandwiches here. Her boss stormed out of a meeting with a major New York department store because he wasn’t going to let a woman talk back to him. Her boss’ boss Roger Sterling throws parties at his country club where he performs in blackface. One of the account service managers was practically kicked to the curb for suggesting a client target black consumers. And let’s not forget the tragic Ann-Margret diet soda spot. Peggy knew it was a disaster from Day One and she said so only to be shot down by Don who tells her he understands women better than she does.

In 1964 Congress would pass the Civil Rights Act which includes Title VII which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. Eventually, it would get harder and harder, but still not impossible for employers to pay their female employees less. Peggy’s time has yet to come.


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The Saturday Evening Post, May 4, 1963

The Saturday Evening Post, May 4, 1963

Hello Patio, Hello lawsuit?

For the sake of argument let’s say that the Patio folks really liked Sal Romano’s Patio commercial. Let’s say they like it just the way it is. It’s an exact frame by frame copy of the opening sequence to the 1963 film “Bye Bye Birdie.”  An Ann-Margret wannabe performs the opening scene of the movie with “Bye Bye Birdie” changed to “Bye Bye Sugar.”

Let’s further assume that the British bean counters at Putnam, Powell and Lowe (parent company of Sterling Cooper) were willing to stick a crowbar in their wallet and pay the appropriate licensing fees (which would pre-empt any copyright issues and could run anywhere from $10,000  to over $1 million in 2009 dollars. For the title song from one of 1963’s top grossing movies featuring one of the year’s hottest new stars, it could be closer to the top of the scale rather than the bottom.)

Let’s say it airs in prime time. Let’s say during “Bonanza.” Let’s say during “The Dick Van Dyke Show” and “American Bandstand.”  Let’s say Ann-Margret sees the ad and has the same reaction Peggy Olson had.

That is to say she hates it.

In this hypothetical and fictional situation, Ann-Margret not only hates the ad, but she has never heard of Patio and wouldn’t drink “dietetic” soda on a bet.  In 1963, what could she do?

Well, it depends on whether or not PepsiCo and Sterling Cooper asked her permission. (Ann-Margret on Mad Men! What a great episode that could be.  Imagine Ann-Margret coming in for a meeting. It would make the epic American Airlines presentation in “Three Sundays”  look like a tea party.)

Sterling Cooper American Airlines Presentation

But what if they didn’t bother to ask? What if they didn’t think they needed to? If Sterling Cooper didn’t get her permission, she could sue for violation of the right of publicity.

Simply put, the right of publicity is the right to control one’s identity.  The most significant suits involving recognizable images of pop culture celebrities such as Jacqueline Onassis, Frank Sinatra, Bette Midler and Tom Waits didn’t arise until the 1980s.   So, If Ann-Margaret sued Sterling Cooper in 1963, 20 years ahead of when the first suits were filed, it would have been the first in a series of  important “impersonator” cases involving a celebrity asking for an injunction and/or monetary damages because their image was used in an advertisement without their permission. Ann-Margret Olsson v. Sterling Cooper would be a landmark right of publicity case that law students would still be studying 45 years later.

But suppose Sterling Cooper (wisely) decided to scrap the Patio ad, but decided to use the singer’s voice and the jingle with different visuals that didn’t include an Ann-Margret look-alike?  Based on the outcomes of existing case law, Ann-Margret would again be a legal trailblazer a good 25 years before Midler filed her famous lawsuit against Young & Rubicam. In Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989), Midler refused an offer to sing her hit song “Do You Wanna Dance” in an ad for the Mercury Sable. In a move that would make Bert Cooper proud, Y&R hired one of Midler’s back-up singers to perform the song in her stead.  Several years later, Waits refused a smilar offer from Frito-Lay and a “sound-alike” was found to mimic his  distinctive voice. (Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992).

Both artists won their suits on right of publicity claims. Midler was awarded $400,000 and Waits received $2,500,00 several years later. The Midler case turned on her claim that the impersonation featuring her distinctive vocals would lead viewers to think that she was singing the song and therefore endorsing the car. And Ann-Margret’s vocals are nothing if not distinctive.

If Ann-Margret decided to sue, it’s likely she’d  prevail in what could have been a multi-million dollar lawsuit (in today’s dollars) against Sterling Cooper, which could have been disastrous for the agency. And since series creator Matt Weiner has said he’d like to see the series move into the 1970s, it’s probably a good thing the Patio folks decided to pull the plug.

hello patio!

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