The advertising landscape may change, but the rules remain the same

For Steve Bergerson, the career-shaping light-bulb moment came in an Advertising 101 class when he was a student at the University of Minnesota in the mid-1960s.

"That's when Ralph Nader and consumerism were at a peak, and we talked about government regulation, and I realized I could combine advertising and law," Bergerson recalled from his 40th-floor corner office in downtown Minneapolis. "Nobody was doing that. All the ad agencies in town were sending their legal work to New York and Chicago."

So, after graduating from the university with an advertising degree, Bergerson took a job at the Minneapolis ad agency Campbell Mithun as an account executive while he attended law school.

Bergerson then built a first-of-its-kind practice around advertising and trademark law that eventually led him to Fredrikson & Byron, where he became chairman of the firm's advertising, marketing and trademark group. With Bergerson's retirement, the group now is headed by John Pickerill, another ad agency alum-turned-lawyer.

After a 40-year run in advertising law that officially ended last week, Bergerson sat down with the Star Tribune to reflect on changes and trends in the industry.

Q: How did you introduce your advertising law practice to the world?

A: I said, "Here's a lawyer who gets it. He's walked in your shoes. He's not like other lawyers who are naysayers and are risk-adverse. This is a guy who will help you navigate and run through the minefields." I also got involved in ad trade organizations like the Advertising Federation and the Better Business Bureau. I also led the effort to oppose the Legislature's attempt to put a sales tax on advertising.

A: Carmichael Lynch. I reviewed their ads. I wrote sweepstakes and contest rules. I did celebrity talent agreements for them and music licensing agreements. I took cases before the National Advertising Review Board on behalf of clients who had advertising disputes with competitors.

Q: How has advertising and its legal elements changed in the last 40 years?

A: It started changing for me in the 1980s. Before then there weren't written agreements between agencies and their clients. It was considered rude. But that started to change and relationships became more formal. Contracts became longer and more detailed. And then came the late 1980s, and giant holding companies started buying up all these smaller ad agencies and the earth under the advertising industry's feet — and mine — shifted big time. I started losing [agency] clients because the holding companies had in-house lawyers. And my clients realized that the holding companies were buying their book of business, not the agency, so much.

Q: Were advertisers taking a new look at the way agencies went about their work?

A: Agencies at that time got 15 percent of bought media. Those were huge dollars. Clients became very unhappy. They said the commission doesn't depend on the quality of work, just the amount spent on media. That absolutely transformed the advertising business. Clients said, "We're the ones spending the money. We'll take charge now. We'll call the shots." Now agencies were suddenly being treated like any other vendor. Negotiations for agency-client agreements were turned over to the client's procurement department — the bean counters — and they started beating up agencies and playing one agency against another. The effect on the bottom line was substantial. That changed the agency itself. A lot of good agencies went out of business. Scads of creatives left and started their own small agencies and then entered the age of freelancers, and you were left with skeleton agencies that farmed everything out.

A: A huge amount of the advertising and promotion budget of companies has clearly shifted to social media. That has transformed the agency landscape as well. Some have adapted, some haven't and some have hired other agencies. My rule of thumb is, if you can't do it in print, you can't do it on the Internet. To that extent, it hasn't changed what I do. Laws are laws, and they are not media specific.

Q: What are the most common mistakes that advertisers make?

A: Three words essentially govern what you can and cannot do. You can't engage in false advertising. You can't engage in deceptive advertising, and you can't engage in unfair advertising. False is false. What's false and deceptive and unfair is regulated by the Federal Trade Commission (FTC). You can't disparage someone's property. That doesn't mean you can't be unkind, but it has to be factual. You can't invade someone's property. And you can't use someone else's name or likeness for commercial purposes without their consent.

Q: You've handled celebrity endorsement agreements for people like Mickey Rooney, Robert Duvall, Steve Irwin of "Crocodile Dundee" fame. What is that part of the business like?

A: The FTC has pages and pages of rules for celebrity endorsements. It is a highly regulated area. The client calls me and says we want to use fill-in-the-blank in their ad campaign. I contact the [celebrity's] agent, send them a storyboard, they send back a number [for pay], and we … eventually strike a deal. You learn quickly who the nice ones are and who the not-so-nice ones are.

A: Now seems like a good time to leave one great passion and spend more time with family and friends, and to increase my pursuit of others, including gardening, photography, boating on Lake Minnetonka, road trips on my Harley, wintering in California and maybe some teaching, consulting and/or project work.