Monday, February 7, 2005

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Fox's in-game breach of contract?

So the Super Bowl was a pretty good if not great game, and a pretty good if not great halftime show by Paul McCartney (though if there is any song that was made for massive fireworks displays, it's "Live and Let Die.").

The general consensus, however, is that the ads were pretty lame. See Seth Stevenson's review in Slate and Chris Ballard's at Part of the reason for this may have been the extent to which FOX and the NFL censored the ads, according to The Age's Caroline Overington:

This year the Fox network, which shows the Super Bowl, banned four ads. Many on Madison Avenue were disappointed. Advertisers pay around $US2.4 million ($A3.1 million) for a 30-second spot during the Super Bowl and usually strive to create something controversial. But Bob Garfield, a columnist for Advertising Age, said this year's commercials were disappointing. He told Good Morning America, "This year, the Super Bowl is interesting not because of what ads they're showing but what ads they are not."

Car maker Lincoln withdrew a commercial after Christian groups complained. In the ad, which can be seen on the web, a priest finds a car key in the collection plate. He goes to the car park, where he sees a Lincoln truck. He strokes it, loves it. But then a little girl turns up with her father, and the father wants his keys back.

Some Christian groups said the ad was inappropriate, given the Catholic Church's recent problems with pedophile priests.

Fox banned an ad from Budweiser that showed a delivery boy using the hard breastplate from Janet's notorious costume to open a beer. Another ad, featuring Mickey Rooney's bare and ageing buttocks, was also banned.

Fox censored itself too, changing the name of its Best Damn Sports Show, Period to The Best Darn Super Bowl Road Show Ever.

But at least one company got a saucy ad through the net. The website,, showed an ad with a well-endowed woman jiggling her breasts. At one point, the strap on her singlet top snapped, but no nipple was seen.

Ah, but not so fast!! It turns out that the ad did get censored run into difficulties. Bob Parsons, the CEO/founder of, blogs (yes, blogs) about what happened:

[O]ur Super Bowl ad only appeared during the scheduled first quarter spot. It was scheduled to run also in the second ad position during the final two minute warning. Our ad never ran a second time. Instead, in its place, we saw an advertisement promoting "The Simpsons."

The NFL persuaded FOX to pull our ad.

We immediately contacted Fox to find out what happened. Here's what we were told: After our first ad was aired, the NFL became upset and they, together with Fox, decided to pull the ad from running a second time. Because we purchased two spots, we were also entitled to a "Brought to you by" 5 second marquis spot. They also chose to pull the marquis spot....

I believe that it's the first time ever a decision was made to pull an ad after it had already been run once during the same broadcast. (emphasis added)

Forget whether or not this is censorship -- FOX is a private company, not the government -- if Parsons is correct, then I would imagine this has got to be one whopper of a breach-of-contract suit [Ahem, despite what others may believe, you're not a lawyer--ed. Good point -- I'd appreciate some legal takes on this issue.]

If you want to see the "controversial" ad, click here (I recommend the two-minute version -- the last spoken line made me laugh out loud). The ironic thing about the ad is that the object of the satire is not the NFL, but sanctimonious politicians (and, I might add, by far the best ad of the evening was the G-rated one for The NFL Network with Joe Montana et al singing "Tomorrow")

It should also be pointed out that this isn't the first time the NFL has acted like a spoiled brat it its desire to be seen as "wholesome". Last year ESPN aired a fictionalized show called Playmakers, a "behind-the-scenes" look at a professional football team. While the show was a bit over-the-top at times, Playmakers was an above average drama with some excellent performances -- kinda like The Shield for the NFL. However, the NFL believed that the show cast the NFL in a bad light, and made it's displeasure known to ESPN. In short order, ESPN caved in to the NFL.

UPDATE: Krysten Crawford has a story on this for CNN/Money that confirms Parsons' account:

Brian McCarthy, an NFL spokesman, confirmed Monday that league executives contacted Fox officials after seeing the ad, which they had not pre-screened. The reason, said McCarthy, "was exactly what many people felt. It was inappropriate."

Check out this Parsons post from earlier in the week to see the back-and-forth between GoDaddy and FOX to get any ad on the air. Finally, the advertising blog adrants suggests that the the ad might not have played well. The Associated Press concurs, reporting that an post-game survey of 700 people found the GoDaddy ad to be one of the least liked. On the other hand, the Boston Globe's Alex Beam and the Kansas City Star's Aaron Barnhart both liked it. Howard Bashman correctly points out that, "Congressional hearings don't usually contain this much pretend near nudity."

Writing at WPN News, Kevin Dugan (who hated the GoDaddy ad) makes the provocative argument that blogs have ruined Super Bowl ads forever:

This year, the game was better than the ads. Again. You want to know why? There will never be an ad as good as 1984 again because there are no more secrets (that remain secret) before being told only once.

Blogs usurped the payoff around the big game this year. You could head online and find out the latest about any and all ads. We created buzz bigger than 1984 for ads that never stood a chance.

Pamela Parker makes a similar argument.

ANOTHER UPDATE: Joal Ryan reports for E! Online that the FCC received 33 complaints from the Super Bowl this year -- eight of which were devote to the ad. Three viewers called in to complain about Janet Jackson from last year.

posted by Dan on 02.07.05 at 02:24 PM


Why are you so confident that Fox has breached its contract? Isn't it likely that the contract guarantees the network's right to stop broadcasting an ad and limits its liability to the purchase price of the spot? Unless you have some reason to believe the contract doesn't contain such terms, I think you're a little hasty with your unsubstantiated "Fox breached its contract!" accusation.

posted by: Joe on 02.07.05 at 02:24 PM [permalink]

Joe-- Fair point -- see my rephasing of that question in the post.

posted by: Dan Drezner on 02.07.05 at 02:24 PM [permalink]

With respect to "Playmakers," the NFL and a lot of athletes were upset because they felt the show portrayed football players as philandering, wife-slappin', ho-chasing, drug-abusing, overpriced, oversexed, violent, self-absorbed, egomaniacs.

Glad none of that is true.


posted by: Jenna Talia on 02.07.05 at 02:24 PM [permalink]

The odd thing is that we're supposed to believe that the content of the commercial was some sort of surprise to he Fox executives, when anyone with a half a brain knows that every single new commercial that shows on prime time (much less the SB) is reviewed, re-reviewed, vetted, examined, and "approved" to microscopic tolerances. What happened? Someone outside of the normal chain took a look at it, decided it was bad, and ordered it yanked without any real thought. It's going to end up costing Fox some real money (besides the $2 million plus in actual cash they're going to have to refund). When you sell someone an ad package, there's protections going both ways, and an arbitrary decision by the broadcaster to pull the spot is seldom protected.

posted by: cirby on 02.07.05 at 02:24 PM [permalink]

Their league, their rules, Dan.

It is possible for ads to be clever and effective without profanity, bare breasts, flatulence and some of the other things sacred to libertarian hipsters. By the standards of 20 years ago last night's commercials were pretty racy, though I doubt they were more persuasive advertisments for that reason.

Having said that, I wish the NFL had banned a couple of ads just because they were stupid. Frozen Mustang Guy, for one. And the one for...I think it was for countertops of some kind.

posted by: Zathras on 02.07.05 at 02:24 PM [permalink]

I can't get worked up over "censorship" by either the NFL or Fox. They surely have the right to control what they themselves broadcast...

Is it censorship that Ad Age doesn't run ad's portraying hard-core porn? There are different standards appropriate to different venues and the person who gets to decide that is usually the person who owns that venue. Are we as a culture really running out of venues where racier content is appropriate and permitted (and encouraged) so that the Super Bowl's more "family friendly" advertising policy is a big problem?

Excusing the lameness of the ads on the grounds that they were subject to "censorship" is a cop-out for the ad agencies involved. They were lame because they were lame... Is the only way to make an ad engaging, interesting or funny to show a nipple? The only way the "censorship" could have contributed to the lameness of the ads is if the agencies have become to reliant on sex jokes (likely to be banned) as a crutch to compensate for their lack of creativity... and how lame is that?

posted by: steve on 02.07.05 at 02:24 PM [permalink]

I boycotted the Superbowl due to their removal of racy and sleazy material. I like sleaze, and I refuse to patronize a network that objects to it.

posted by: Xavier on 02.07.05 at 02:24 PM [permalink]

Agree with some of the other commentors here on the censorship issue. Censorship is really a cop out. Probably because, uncreative ad agencies isn't nearly as right-wing bashing as it needs to be for "Madison Avenue." After all, probably the most creative and yet completely tame ad was for Ameriquest mortgage and the Don't judge too quickly with the cat.

posted by: Joel B. on 02.07.05 at 02:24 PM [permalink]

Non-sequitur Bowl. How many ads simply made no damned sense? As lame as it was, at least the Mustang ad actually managed to showcase their product (and that convertable is pretty sweet i might add). I was hoping for an add with some dude just shoveling piles of cash into a furnace, would have made as much sense and at least make me laugh.

posted by: Mark Buehner on 02.07.05 at 02:24 PM [permalink]

Did anyone else notice the "hearings" took place in Salem, MA? (The Salem of the infamous witch hunts). Heh.

posted by: fat kid on 02.07.05 at 02:24 PM [permalink]

Godaddy was a good ad. The super bowl has become a stale excuse for entertainment tho - I don't think people even like to watch it anymore.

posted by: Stan on 02.07.05 at 02:24 PM [permalink]

Breach of contract is a singularly difficult thing to speculate about without, y'know, seeing the contract. And there's no reason to think that the contractual terms are any different for an ad that could pulled by Standards after airing once than for an ad that was pulled by Standards the day before the Superbowl. It's sillier, but probably not contractually different (unless of course the contract says that they're different, e.g. by guaranteeing 24 hours notice of cancellation provided that the ad was provided to the Standards dept 72 hours earlier).

I'd be surprised if Fox owed GoDaddy much more than a refund, or even make-good commercial spots totalling the value of what got cancelled.

posted by: Jacob T. Levy on 02.07.05 at 02:24 PM [permalink]

We loved the meta FedEx ad (especially the Journey song and the "optional" qualifier about the company slogan). It's only funny the first time, though.

But yeah, it was a weak year. Weaker than last year, which was also weak. Good thing the game was good! And for once, they even gave the MVP award to the right guy (I was afraid they'd give it to Harrison). I thought last year should've went to Delhomme in a losing effort, and thought Simeon Rice was the no-brainer the year before.

posted by: fling93 on 02.07.05 at 02:24 PM [permalink]

What I wanna know is, who gives a rat's ass?

posted by: Bubba on 02.07.05 at 02:24 PM [permalink]

I wasn't quick enough with the remote since I was in another room, so the GoDaddy commercial got a few moments of play time in my house with my seven year old and ten year old watching. I'm not a prude and really don't care what is on TV as long as I know it's coming so I can decide what I feel is appropriate for my kids to see. When they throw crap like that up and I don't expect it pisses me off (Just like all of the erectile dysfunction commercials on TV and the radio). Who lost? All of the other advertisers because I flipped the channel at each commercial break and didn't sit through one of them until after half-time when my kids were in bed.

posted by: JB on 02.07.05 at 02:24 PM [permalink]

I like sleaze, and I refuse to patronize a network that objects to it.

In that case, I think we can definitely say your gripe was with the NFL, not Fox.

posted by: anony-mouse on 02.07.05 at 02:24 PM [permalink]

>By the standards of 20 years ago last
>night's commercials were pretty racy...

Indeed. Think for a second about how many involved humor based on homosexuality (false perceptions of it, of course.)

As far as GoDaddy: The only reason I remembered what it was is that I knew what "domain-name registration" meant. Nobody at work this morning knew what it was for, thought they all remembered it because OMG YOU ALMOST SAW HER TIT HAW HAW! So I guess the ad worked, in that sense, because everyone remembered (On the other hand everyone still remembers the "Herding Cats" commercial, even though nobody has any idea what it was for.)

In any case, the GoDaddy commercial burned out its joke about twenty seconds in, and the rest was like watching a bad "American Idol" contestant.

As far as tits: I have to wonder at the thought process that said "hey, for the 2004 Super Bowl, let's have Justin Timberlake rip Janet Jackson's dress off!" Like...what audience are you aiming this at, here? If there's any event that's guaranteed to be an all-ages audience, it's the Super Bowl.

posted by: DensityDuck on 02.07.05 at 02:24 PM [permalink]

There was no more breast shown on the commercial than the broadcast showed of the Valley Girls (Silicon) cheering their team on.

It just lasted longer.

And wonder of wonders. They are going to get some money back for sure. Enough to finance a suit to keep the subject a topic of conversation for months. Plus they might even win the suit.

A very successful commercial indeed.

posted by: M. Simon on 02.07.05 at 02:24 PM [permalink]

Hey Dan, thanks for posting the link to the add. Got anything similar for Selma?

posted by: gene on 02.07.05 at 02:24 PM [permalink]

Perhaps the most intelligent scenario is that GD and Fox are co-conspiring to create a false controversy in order to provide GD with more press and public interest in the aftermath.

posted by: Jay Rob on 02.07.05 at 02:24 PM [permalink]

I think the "herding cats" commercial was for Avaya, which is one of Lucent's spinoffs. That was a great commercial.

posted by: Chris Lawrence on 02.07.05 at 02:24 PM [permalink]

There are so many reasons why an ad might not air (preemption and technical difficulties, to name two), I would be quite surprised if any standard contract did not allow for it.

posted by: Kevin L. Connors on 02.07.05 at 02:24 PM [permalink]

For all other mammarophiles out there who, like me, found the Go Daddy girl to be, er, pleasing to the eye, I'd heartily recommend checking out the "web-only" version at . It's rich stuff.

Other than cheering the pneumatic aspects of the ad, I have nothing else. (Except, I suppose, to second Jacob Levy's point that we'd actually have to read the contract to know if it's been breached. I'd speculate that, rather than simply providing restitution in the event of a breach, there's probably some sort of liquidated damages provision. But I have no idea; I only said that to seem smart.)

posted by: D.J. on 02.07.05 at 02:24 PM [permalink]

Come on. The biggest issue is how lame the ad people are if the only "clever" idea they can think up is to show "big boobs". Whaa hoo, thats a new one! It's the ad people who suck and they create the ads that suck. Perhaps it's time to outsource to some creative people in some other country?

posted by: Jim H. on 02.07.05 at 02:24 PM [permalink]

P.S. The ad I link to is, of course, the same "controversial" one Dan links to in the main. Just as good the second time!

posted by: D.J. on 02.07.05 at 02:24 PM [permalink]

The girl in the commercial and Janet Jackson both illustrate that sleazy and attractive aren't the same thing.

posted by: Alan K. Henderson on 02.07.05 at 02:24 PM [permalink]

If there is a cause here, it won't be breach of contract by Fox. What it should be is a RICO suit.

The NFL can be liable for interfering with two other companies legitimate business arrangements; just as the MOB can be indicted for "asking" Local Daily News not to take ads from certain garbage removal companies.

posted by: slim999 on 02.07.05 at 02:24 PM [permalink]

"Kevin Dugan's provocative argument that blogs have ruined Super Bowl ads forever."

Stuff and nonsense. I'm surprised at Dugan's lack of knowledge in this area.

Blogs did not ruin Super Bowl ads; the ad companies do. They're the ones releasing the information ahead of the game. For years, the Associated Press would run stories promoting the ads before the Super Bowl, with the images from the ads helpfully supplied by the companies themselves.

The blogs act as a megaphone, spreading the word about the ads, but they didn't gather the information in the first place. That's the companies' responsibility.

Did anyone notice that after making that argument Durgan undercuts his position?

"Volvo's first Super Bowl ad was done superbly. They had pregame buzz and the ad was still a surprise with Branson appearing in it. The de rigueur URL at the end sent it into orbit. Online or offline, every element supported the larger campaign. Volvo even bought keywords on Feedster around "super bowl" + ad."

The same bloggers that "spoiled" the Super Bowl ad wasn't able to do that with Volvo. In fact, Volvo increased its buzz by buying Feedster keywords. That doesn't sound like a tragedy to me.

posted by: Bill Peschel on 02.07.05 at 02:24 PM [permalink]

I just think that it's funny that Fox, of all networks, censored a commercial. As a rule, if you are watching television and you faintly hear civilization crumbling in the bacground, you'll find that you are watching Fox. "Worlds Worst Police Brutality Videos" or "When Lawyers Attack" are OK and this commercial isn't. Strange isn't it?

posted by: Formerly Dan on 02.07.05 at 02:24 PM [permalink]

The 'Herding Cats' Commercial was for EDS. I know, because I still have a mouse pad from that ad campaign at work. :)

I certainly enjoyed looking at the GoDaddy spokesgirl, and they've stirred enough controversy to get them some name recognition. For them, I think the ad is a smashing success.

posted by: Dustin on 02.07.05 at 02:24 PM [permalink]

You children are missing the biger point, which is that got WAY more talk by being booted than they would have if they had played again. Hands down.

How many people have visited the link, or seen the ad online? The longer 2 minute version, too, huh?

So just SHUT UP your WHINING about censorship, you silly bitches, is making off like a bandit at these free advertising rates.

Besides, as half of you already know, collapsed after the first ad, there's NO FRIGGIN' WAY they could have handled the second wave. NO WAY.

Missing that second ad was a PLUS for

posted by: Emma Morrow on 02.07.05 at 02:24 PM [permalink]

Wasn't the ad with Mickey Rooney in the sauna also pulled due to his towel dropping as he ran out? I saw it on iFilm last night and only stopped the bleeding from my eyes an hour ago.

posted by: ech on 02.07.05 at 02:24 PM [permalink]

Given the choice between sleazy and attractive I'll take sleazy every day. Now if I can get sleazy and attractive that would be a plus.

BTW did you folks know Paris Hilton has a TV show?

Well pardon me in any case. I'm off to watch reruns of Bay Watch. Actually I never cared for Bay. It was the watching that was important.

Too bad Russ Meyer doesn't have anything to say on the matter.

Oh, yeah. Despite rumors to the contrary Lady Justice is not planning to get breast implants. Rumor has it she likes the natural look which is back in Vogue. Or was that the Evergreen Review. I forget.

posted by: M. Simon on 02.07.05 at 02:24 PM [permalink]

The ad was just plain *bad.* I would hope even the buffons that like Howard Stern would have found the lack of humor in it appalling. Satire is very hard to do well. And they didn't do it well.

I heard it was the NFL that called and told Fox to pull the ad. If so, it was a smart decision for Fox since its contracts with the NFL are oogles and oogles more valuable to them than all the GoDaddys in the world.

posted by: Corie Schweitzer on 02.07.05 at 02:24 PM [permalink]

For the interest of the blogger, the phrase "general consensus" is a redundancy. A "consensus" is always "general" unless otherwise specified.

posted by: Grammar Police on 02.07.05 at 02:24 PM [permalink]

The Lincoln ad wasn't pulled because of complaints by Christian groups, it was pulled because of complaints by the Survivors Network of those Abused by Priests because they said it "offends females who have been molested."

posted by: Stu on 02.07.05 at 02:24 PM [permalink]

So there was no buzz over Super Bowl ads before bloggers arrived? What a self-congratulatory set of wankers.

posted by: Ed Roman on 02.07.05 at 02:24 PM [permalink]

is it a breach of contract? depends on what the contract says (AKA, it's all in the fine print!). Fox, as the the party with the power here, likely put draconian clauses in there to allow them to pull any spot or limit damages, etc., etc.

godaddy may still have a lawsuit to file (unfair trade practices and other commercial litigation baloney claims, conspiracy against NFL and Fox perhaps) but victory is by no means assured. better to negotiate a bunch of compensatory ad time during some of fox's other family-friendly fare. when animals attack 7?

posted by: milowent on 02.07.05 at 02:24 PM [permalink]

For the most expensive ads of the year, I expect exceptional ad craftmanship. Go Daddy wasn't there. It was predictable and tired. Who hasn't watched boobs falling out of underwear ad nauseum?

OTH, the cat ad was a fabulous sight gag based on basic, classic comedy priciples.

Nitro Nora

posted by: nitronora on 02.07.05 at 02:24 PM [permalink]

After this GoDaddy flap, I'm left wondering where all the blowback over the the Ameriquest "You're getting robbed.." ad is. In our world of color coded threats surely joking about robbery is at least an orange violation.

posted by: Publius Rex on 02.07.05 at 02:24 PM [permalink]

Best commercial: Anheuser Busch's tribute to returning armed service members.

Totally agree GoDaddy burned out 20 seconds in. Embarassingly lame by the end. Only redemption was the congressional respirator.

The military-honoring "beer" commercial never showed a product, had no dialog and very simple music, but was perhaps the most emotionally satisfying commercial I ever saw. They complete captured my feelings.

posted by: Dan on 02.07.05 at 02:24 PM [permalink]

I'm a little surprised nobody has commented on the E! Online article Dan linked to at the end of his post, which contains the following hilarious passage:
A year after the FCC logged more than 500,000 complaints over Jackson's exposed breast at the Super Bowl halftime show, the governmental watchdog had received exactly two complaints by Monday afternoon over McCartney's fully clothed set.

In both cases, viewers complained of being "bored" by McCartney's 12-minute, four-song showcase of Beatles and Wings classics, including "Hey, Jude," FCC spokeswoman Rosemary Kimball said Monday.

posted by: Guy on 02.07.05 at 02:24 PM [permalink]


Did you know that the vast majority of the complaints to the FCC (except about Janet Jackson's halftime show) are sent by one group? They use the power of the Intarweb to mass-email the FCC. In fact, that one group was responsible for over 99% of all complaints to the FCC in 2003. I'm sure glad they're 'protecting' the 'public'.
Wasn't the FCC just supposed to regulate *access* to the airwaves, not content? "Congress shall make no law infringing upon the freedom of speech..." and all that. I guess laws are bad, but regulatory, supervisory bodies are just fine. How long before people start getting fined for 'saying offensive things' in normal conversation?

posted by: p-dawg on 02.07.05 at 02:24 PM [permalink]

> I wasn't quick enough with the remote since I was
> in another room, so the GoDaddy commercial got a
> few moments of play time in my house with my seven
> year old and ten year old watching.

Your children are going to be upset/damaged by a swimsuit STRAP falling down? Not even a bare boob (horrors) but a slipping strap?!?

How did you handle the "4-hour erection" disclaimer after the Cialis ad then? Although I don't MIND explaining it to my pre-teens ("you know how you are always saying Dad is 'really old now'?"), but that sure seems offensive to me.


posted by: Cranky Observer on 02.07.05 at 02:24 PM [permalink]

No one has mentioned that the ad was shown on TV several times in the days before the game. It was featured in news stories about various ads that were rejected, and used as an example of one "racy" ad that WAS approved. So if I knew about it beforehand (and saw it in its entirety more than once on Fox News and MSNBC), then why didn't the NFL?

posted by: Blue on 02.07.05 at 02:24 PM [permalink]

I thought the ad was topical, funny, entertaining, and appropriate. I found none of the above in the "entertainment" the ad was lampooning.

posted by: Crusty Oldman on 02.07.05 at 02:24 PM [permalink]


Spots get cancelled all the time for a number of reasons although its unusal to cancel a spot for "content". Most spots must be screened and aproved by a station's standards board prior to air - this goes for the run of the mill sitcoms as well as the superbowl. Since spots aren't guaranteed to run I doubt their will be any legal follow up.

posted by: Scott on 02.07.05 at 02:24 PM [permalink]

Some Simpsons episode mocks "The Lion King" promos where real artists sketch real animals. A scene in the original episode showed the "Itchy and Scratchy" cartoonists sketching a cat being blown up with dynamite. Fox edited the scene for being too violent. When the Simpsons writers pointed out that "Itchy and Scratchy" almost always involves gruesome cat murder, Fox replied: yes, but that's just a cartoon.

Deciding what to show and what not to is fuzzy, crazy and subjective. But someone has to draw a line somewhere; ads in a true libertarian fantasy world would probably be unwatchable, competing for glancing attention from an increasingly ad-avoidant audience (all the while making them more ad-avoidant). I'm just glad its not my job to decide. Cut Fox some slack here---they have more egregious sins to right.

Oh, and even when the game is good and the ads suck, we still end up talking about the ads. Super Bowl, schmuper bowl. I'm just in it for the nachos from now on.

posted by: brent on 02.07.05 at 02:24 PM [permalink]

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