Monday, January 02, 2006
From Ekow Yankeh: A Gap in my humor
Not too long ago, Seth Stevenson at Slate wrote an article regarding a terrific Gap ad directed by Spike Jonze, lamenting its brief and limited use by the company. The ad celebrates, with great wit, Gap's new remodeling initiative. At the heart of his lamentation was puzzlement about why the company would have created, at great expense, such an ad and then have such little insight or courage as to use it. The ad is in fact quite funny-- you can find one version of it here, featuring a group of customers and employees misbehaving in a Gap store, cresting in a frenzy of destruction. I was completely enjoying it until a scene where a large object is thrown out of the store's window onto a public street, inspiring a passing driver to launch herself and auto into the store - the ultimate in Wilson and Kelling's broken windows experiment.
Somewhere in the back of my grading-finals-addled mind, the reason the commercial was contained leaped out at me. On the foundation of absolutely baseless speculation, I thought to myself, "No way Gap legal allows that commercial to run nationwide." I mean, who needs that lawsuit? Trying to defend a commercial as a mere commercial would seem innocent enough but try telling this to the directors of the movie, "The Program." One person inspired to live out the commercial, one innocently harmed victim and a few creative lawyers and…
Now, after five minutes of calm I find this reasoning overwrought if not unthinkable. (And in my defense, I did just finish writing a torts exam.) Still, some part of me wonders, were I in the Gap legal department, would I not have been uneasy or voted against the commercial. So the question is, is it just me? What the hell has happened to (my) sensible thinking? Or, broader, is this reflex of finding legal liability a reflection of a society detached from common notions of responsibility? Or, perhaps, of law intelligently recognizing and protecting from predictable human failings and suggestibility?
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As someone who just finished grading a mess o' torts exams, I would say this type of thing is an occupational hazard.
Posted by: Joseph Slater | Jan 2, 2006 11:50:38 AM
Sadly, this is not overwrought thinking at all. Millions of dollars have been awarded on flimsier rationales. All it takes is one memo expressing concern that someone could imitate the commercial, or even one letter from a worried parent, and the entire corporation is at risk of being held to have negligently disregarded internal warnings at the hand of a plaintiffs' lawyer who is allowed to use the memo or letter as the centerpiece of a closing statement. I'm surprised the commercial ran as often as it did, and you are right to note the reflection of a society detached from common-sense notions of responsibility.
Posted by: Ted | Jan 2, 2006 1:17:16 PM
Having worked in the retail trenches, albeit briefly, I would say the biggest concern I'd have as management/ legal counsel would be that the ad might give employees (if not customers!) too many ideas, if not too much license, to consider the possibilities. Retail stores are often dreadful places to work, requiring dull repetition (e.g., endlessly re-folding sweaters that customers have pawed), inane interactions with stupid shoppers, low pay/ no benefits and no concern on the employer's part about keeping you long term. The ad is brilliant because it's the perfect fantasy for employees and customers who consider themselves dissatisfied with a service economy and consumerism.
If I were a risk-averse retail management team, I'd be afraid that the ad might increase low-level vandalism and crime. Tort liability might lead to a few significant one-shot payments, but the way in which the ad plays with both sides of consumerism seems more likely to lead to a much greater number of small-scale losses. Strangely, it's an argument both for and against brick and mortar stores: It reminds me both of how awful it was to work at one (and how awful it can be to shop at one, especially at this time of year), and how great public spaces can be.
Posted by: Mark Fenster | Jan 2, 2006 4:56:35 PM
Sorry Dan, I just don't see it. This Gap ad was not "contained." It was part of a viral marketing strategy to create buzz. To the extent you are arguing that it SHOULD have been contained for liability reasons, there might be something to talk about. But I just don't think you really described what actually happened.
Posted by: Hillel Levin | Jan 3, 2006 9:08:29 AM
Hillel, the post is from Ekow, not me. See the title.
Posted by: Dan Markel | Jan 3, 2006 10:18:56 AM
Oops, sorry about that. Eh, my point still stands (though not directed at you, of course).
Posted by: Hillel Levin | Jan 3, 2006 10:57:48 AM
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