Gamer Technology Law Conference

What: A Comprehensive Two-Day Conference

When: March 25 & 26, 2010

Where: San Francisco, CA (Sheraton Fisherman’s Wharf)

View the program agenda here.

Cutting edge legal and business issues for finance, development, publishing and distribution including:

  • The future of the industry: Social media and retiring baby boomers
  • What new technologies are on the horizon?
  • Litigation update: Top 10 IP cases
  • Ratings: Differences in rating systems, their significance, and how to avoid adverse impacts from incorrect ratings
  • Consoles as the media hub in the home
  • Best business models for long-term survival
  • Social media platforms and game development
  • Movie studios and their renewed interest in the video game industry
  • Buying or selling game companies
  • Packaging of music and video games together
  • New developments in employment law

Cost: Standard Rate: $1,245.00 per person, Government Employee: $945.00 per person, Student / New to Job: $622.50 per person. Register here.

Available Credits:
CA MCLE 13 inc 1 Ethics | GA CLE 12.5 inc 1 Ethics | MN CLE pending | NC CLE 12.5 inc 1 Ethics | NY CLE 14.5 inc 1 Ethics (nontransitional) | TX CLE 12.5 inc 1 Ethics | WA CLE 12.5 inc 1 Ethics | Other credits available upon request.

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Colorado Entertainment Law Symposium

My friend Steve Erwin is hosting (ast the Chair of the Colorado Bar Entertainment & Sports Law Section) the following event, which offers CLE credits.

When: April 2, 2010 9:00 AM – 12:45 PM

Where: CLECI Large Classroom, 1900 Grant Street, Suite 300, Denver CO 80203, (303) 860-0608

CLE Credits:

  • General credits: 4.00
  • Ethics credits: 1.00

Cost:

  • Non member $209.00
  • CBA Member $189.00
  • Gaming Entertainment & Sports Section Members $169.00
  • New Lawyers (in practice 2 yrs. or less) $149.00
  • CBA Student Member $25.00
  • Student Non-member (ID required) $95.00

Description: In this rapid-fire half-day program, nationally recognized Entertainment Attorneys, Music Artist Managers and film executives discuss entertainment industry ethics, hot button legal and litigation issues, music industry developments and how to get a film made in Colorado.

Agenda:

8:30 – 9:00 a.m. - Registration & Continental Breakfast

9:00 – 9:50 a.m. - Film Panel
- The How to Get a Film Made in Colorado will include a step by step analysis of the process of cutting through the legal red tape of getting a film made from tax incentive issues to permitting.

9:55 – 10:45 a.m. - Entertainment Law Ethics
- This topic will include a detailed discussion of ethics in the entertainment industry from multi-state practice issues to conflicts of interest

10:45 – 11:00 a.m. - Networking Break

11:00 – 11:50 a.m. - Entertainment Law Litigation Update
- Entertainment law litigation and hot legal issue update including developing trends in video and music content ownership in digital media and video games, films and the Internet

11:55 – 12:45 p.m. - The Convergence of Major Record Labels and Major Management Firms: Who wins the 360 Deal Battle
- A Discussion on the convergence of management firms and major labels including a review of 360 deal trends and contract terms from both management and label perspectives, updated negotiation deal points in management and label deals, the role of managers in the new label environment and what the industry may look like in 10 years.

12:45 p.m. - Adjourn

Faculty

Stephen Erwin, Program Chair
Highlander Wealth Services, LLC
Boulder, CO

Ken Abdo
Vice President
Lommen, Abdo, Cole, King & Stageberg, P.A.
Minneapolis, MN

Alex Brahl
Red Light Management
Denver, CO

Julie Crane
Executive Director
Screen Actors Guild
Colorado and New Mexico

David Given
Partner & Co-Founder
Phillips Erlewine & Given
San Francisco, CA

Debra Hodgson
Law Office of Debra Hodgson
Greenwood Village, CO

Dave Ratner
Replin, Rhoades & Roper, LLC
Denver, CO

Kevin Shand
Director
Colorado Office of Film, Television & Media
Denver, CO

Stan Soocher
Associate Professor, Music & Entertainment Industry Studies
University of Colorado
Denver, CO

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European Parliament Votes to Lower ACTA Opacity

Social networking is great. How else would a third-year law student become “friends” with a member of European Parliament (MEP) if not for Facebook?

An MEP from Scotland happens to be my Facebook friend. After Nick Sarkozy implemented his “three-strikes” laws in France, the Scottish MEP made his voice heard, which caught my attention. He, along with many other MEPs, believed that one’s internet access should not be terminated unless there was a prior judicial ruling – in contrast to Sarkozy’s laws, which allow termination of internet access at the administrative level. This was around the time that ThePirateBay was shut down, and its founders sentenced to prison and ordered to pay damages. The MEP even had a web page advocating his position, with links to his Facebook page. Naturally, I clicked on his Facebook page and added him as a friend.

Now for the topic of this post: the Anti-Counterfeiting Trade Agreement (ACTA) – a far reaching and secretly negotiated treaty that may soon come into effect. This treaty, lobbied heavily by the motion picture industries and recording industries, has vast potential when it comes to reducing civil liberties. For example, the ACTA may subject you to searches of your laptop’s hard disk contents before any international flight (also applicable to iPhones, mp3 players, phones, and anything else that is arguably a computer). Or, imagine if Comcast could terminate your internet access permanently without a court of law having to say you did anything wrong (which is the state of affairs in France thanks to Sarkozy).

This treaty has been under secret negotiations since 2008. On March 10, 2010 however, the European Parliament voted for “maximum transparency”, among other things. My Facebook friend sent me the debrief from his group staff member:

“with an overwhelming majority of 633 : 13 : 16, the ACTA resolution was carried. The key Par 3 on transparency was carried even with 651 : 3 : 16 votes.

This overwhelming majority had been our Green political objective from the beginning, and we achieved it. However, it has not been easy, and it is to be seen whether this unity will hold in the upcoming months of the political struggle on the contents of ACTA and the (transparent or opaque) way it is negotiated.

Nightly backdoor deals and strange demands for separate and split votes had made the outcome of the vote doubtful until virtually the last minute. Many of our Green MEPs had to intervene on many fronts at strange hours; thanks to them all, wholeheartedly. They made that the first victory on ACTA is ours.

On the controversial issues, we obtained a sufficient majority:

- against EPP/ECR, the second part of Para 2 on the democratic legitimacy of the of the EU engagement in the ACTA negotiations was carried with 363 : 292 : 5

- our Amendment (together with ALDE) critizising the “calculated choice of the ACTA parties” to negotiate outside the frameworks of WIPO or WTO, was caried by the narrow margin of 331 : 326 : 8 (sorry, no RCV avaliable on this)

- our key amendment (together with SD) calling to continue ACTA negotiations but limit it on just the issue of Counterfeiting of Trademarks or Geographical Indications (hence cutting the entire dimension of copyrights and patents out of the ACTA negotiations) was carried with a large majority of 513 : 129 : 17. This is arguably the most important content message of the entire resolution, on which we need to build in the coming months. It was equally the paragraph on which the nightly skirmishes had focussed

- our amendment together with SD, ALDE and GUE to guarantee access to legitimate, affordable and safe medicinal products, including generics and innovatives, was carried by a grand majority of 573 : 60 : 22, proving again that the 5 year old EP unity on TRIPS and Health still holds.

Moreover, a GUE amendment was carrie calling on ACTA negotiators to establish a clause that no individual can be cut off of the Internet without a prior court case (346 : 306 : 12). This is important in the follow-up to the Telecom Package (though in the frame of the ACTA resolution the point is slightly out of frame, since we have the resolution say that ACTA should not have any clause on “three Strikes” in the first place.

As soon as RCVs are available, we will give you a more detailed picture about the contested items.”

In other words, European Parliament voted for transparency, voted to limit the ACTA negotiations to Trademarks and Geographical Indications, and voted in favor of establishing a clause in the ACTA so that no individual can be cut off of the Internet without a prior court case.

This is not the final word on the issue of the ACTA negotiations. The effect of this vote is basically a statement of the position of Parliament. They have expressed their wishes in the context of the ACTA, but do not have absolute legislative authority in the European Community, and even less authority when the rest of the prospective signatories to the ACTA (those situated outside of the European Community, like the US) are considered. The European Parliament and the Council of the European Union together form the bicameral legislative branch of the European Community, thus requiring the Council to approve the votes before the positions voted for may become effective. However, there has been talk of the European Parliament bringing a complaint to the European Court of Justice in the event that its resolutions do not carry their intended weight.

In summation, European Parliament has taken a position on transparency of the negotiations – it wants the negotiations to continue with maximum transparency. European Parliament also took a stand against laws like Sarkozy’s – it does not want a user’s Internet access to be terminated without a prior judicial ruling. Finally, the Parliament voted to limit the negotiations of the ACTA to trademarks and geographical indications.

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Tha Carter V: Prison Sentence

It appears as though Lil Wayne may not be in the studio ‘rapping’ for a while. On Monday he appeared in a Manhattan criminal court to officially be sentenced for having a loaded gun on his tour bus. The incident happened in the summer of 2007.

Luckily for him, his one year sentence will be of a more elegant nature – apart from the rest of the prison population. If good behavior prevails, he may see parole after eight months.

Ironically this criminal sentence dawns on his rising career as rap icon, and recently ‘actor.’ The last year (2009) has proven quite lucrative for him with his tours grossing almost $42 million, supporting a wide variety of artists along the way. In addition, according to Billboard, in 2008, he earned $57.44 million personally.

As one of the ‘richest’ and most well known rappers and music artists in the world, this incarceration could cause not only a financial stress to him, but also groups that cover on tours and even the few that collaborate on albums. Lil Wayne is a catalyst and a transformational figure in the music industry; with him out expect some sort of ripple effect to follow.

We know he’ll be back, better than ever – expect ‘Tha Carter’ to be developing some new material in these next few months. However, what will the affect be on the entertainment and music industry while he’s away?

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An Idea to Extend Back End Video Game Sales

I am writing this post because I currently do not have the wherewithal to implement a system like the one I am about to propose. Instead, I seek to explain the system so that perhaps someone will implement it. To illustrate the system, I will be using the example of the video game Call of Duty: World at War. For those of you in the audience who have never heard of/played the game, I will explain the generalities of my proposition as well as the specific way it would work with World at War. I believe that this system would be beneficial to the developers, publishers, producers, and distributors of video games, as well as the end users.

When the video game, Call of Duty: World at War first came out, all kinds of sales records were broken. Although some of the novelty of the game had worn off after the launch date of the title – as is true with most games – the sales were spurred by release of new maps that players could manipulate. Additionally, players of the game found out that, when the “Campaign” mode in the game was completed, a mini-game would be unlocked. That mini-game is called “Nazi Zombies”, and many of us are quite aware of its existence.

The inclusion of the new maps and the “Nazi Zombies” mini-game effectively prolonged the commercial viability of the game. Purchasers of Call of Duty were likely to at least try the mini-game, “Nazi Zombies”. Those people who tried the mini-game and liked it were potential purchasers of all the new maps that were released for it. Thus, the inclusion of the mini-game meant that at least some of the end users would download the extra maps.

For those of you who have not played “Nazi Zombies”, it is a first person shooter game set in the same place and time as the full version “Campaign” (ie World War II in the European and Pacific Theaters) of World at War.  In “Nazi Zombies”, players are placed within a bounded area and wave after wave of dead Nazis or Japanese soldiers turned zombies attack from the surrounding area. The players have to fend off the zombies with weapons from the “Campaign” mode which can be purchased using points earned while the player runs through the structure. The player earns points by injuring and killing zombies which can be used as money to purchase weapons and other items in the map.

The point of the inclusion of such mini-games with their full-version counterparts is that sales increase, whether those sales are of the full version game or are back-end sales. Some people (like me for example) have purchased copies of the game primarily for the “Nazi Zombie” mini-game, and then pay more to download the extra maps.  These back end sales are easier to make than new sales; if I sell you a video game for $60, you are more likely to buy a $10 map pack for that game than you are to buy another $60 game – you are already invested and are willing to improve upon that investment before you are willing to invest in something entirely new.

This is the major premise on which my proposed licensing system is based: the more “stuff” included with a video game that can be used to leverage more profit from the end users, the better. But, as of now, there is a limit on what types of “stuff” is included with video games.

Minor premise: If this “stuff” is released at intervals (rather than all at once) in such a way as to give end users piecemeal access, commercial viability of the game can be maximized. In the context of my example with World at War: the game was popular, so it sold well, but the popularity declined in time; the inclusion of Nazi Zombies helped stimulate the popularity, but popularity still declined over time; the inclusion of downloadable map-packs helped stimulate popularity as well, but when end users lose interest in the gameplay of a given video game, map packs only help marginally.

Thus, a typical owner of World at War purchases the game for $60, then coughs up even more money on the back end in order to get the slick new maps (required to play online). In other words, if the end user likes the “stuff” that comes with a video game, he or she is likely to buy all of the incidentals – the back end sales –  and he or she will be satisfied paying money for what is effectively a greater freedom in using the video game.

So, if another extra could be included with games like Call of Duty, wouldn’t commercial viability be further increased? And if commercial viability could be increased, while at the same time adding value from an end user’s perspective, why not release the extra? I believe that there is at least one kind of extra which may still be released – modifications, or mods.

Mods “can include new items, weapons, characters, enemies, models, textures, levels, story lines, music, and game modes.” Right now, mods are only created by developers – “Nazi Zombies” is such a developer created mod. But, back “in the day,” mods created by end users were abundant. In fact, one of the most popular first person shooters of all time, “Counterstrike,” was a mod created by an end user, but which later became a commercial developer-backed mod of the full version game of Half Life.

This could be accomplished in a number of ways. The rights holders of the video games could open up the source code for a fee – so called open source software, or the rights holders could merely allow owners of copies of the games to modify the gameplay, a la Half Life: Counterstrike – again for a fee. Either way, freeing up the end users rights to the video game’s code would create a community for any game that could be modified to create new gameplay. The developers, publishers, producers, and distributors of the game could charge a reasonable fee for freeing up rights to modify the game, and assuming the provision of greater rights gives the game more playability, the commercial viability of the full version game will be increased.

Allowing the end user of a video game to modify its content spurs creativity on behalf of video game fans. It’s to everyone’s advantage. The game manufacturer’s research is being done for him without the need for an R&D budget or the short term loans required to finance test marketing or focus groups. End users could modify games so that players could interact in different levels or maps, like in Duke Nukem 3-D. In fact, Duke Nukem 3-D came with a “build engine” that would allow users of the game to create their own maps, complete with new textures and 2-and-a-half-D “sprites”. New textures and characters can be added to a game. New game types, like those in “Counterstrike”, can be added. Weapon characteristics, character types, armor types, and any other configurable piece of code in the game is prospectively subject to a mod, like the PC game Tribes.

When each video game extra costs between $9 and $10 on the back end, selling twice as many due to something as simple as including an interesting mini-game or map pack is a lucrative prospect indeed (at least for the developers, publishers, producers, and distributors). Back end sales are also beneficial to end users to the extent that the video games are decent and the extras sold on the back end somehow improve upon this decency.

These days, rights holders can lock up their content pretty well. They have DRM and the DMCA and plenty of lawyers who do not care who they sue. But, what is the point with locking up the content of a video game that is losing its commercial viability merely because its content is locked up? If users were able to manipulate the code of a game, amateur creators would be allowed to hone their skills in creating modifications of existing games. All parties involved would be benefited; the developers, publishers, producers, and distributors all benefit from a longer commercial life of the video game, and end users benefit from increased playability of video games in which they invest.

Assuming such modifications are made during a time when commercial viability of the original is in decline, the market for the original is likely to be helped, rather than harmed.

The task of freeing up the rights to these video games could be accomplished by allowing users of whatever platform the video game is released on – XBOX 360, PS3, WII, or computer – to download a patch to free up the rights, or simply to download the source code of the game.

Let’s bring back the mods…

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Fringe Sales, Part II

Do we agree with and, if so, how can we apply the fringe sales concept described by Seth Godin?

First, I think Seth is correct.  Obviously, or I wouldn’t be posting.  Right off, I’m thinking about whether I’m one of the “mass” group (those that ignore ads) or in the early adopter group (call me a laggard and we might have beef).

With few exceptions, I’m in the “mass” group.  Those exceptions are few because there’s only a few things I’m truly interested in or find extremely important. Sound familiar? I early adopted Google Chrome, for example, because I spend so much time on the web and was not happy with Firefox, let alone Explorer.  But for the most part, I’m in the mass group even in areas of interest such as music.  There’s just too much available NOT to apply a significant filter and just plain ignore most of what comes across my field of perception.

I was at Bonaroo several years ago.  It was fun, but I actually remember very little.  Substance-intake aside, I do remember a band that I didn’t stay to watch (I went to the Medeski, Martin, & Wood tent instead): The Flaming Lips.  Why did I remember?  Because everyone was talking about them and how crazy they were and that they jumped around in bunny suits.  This is just an anecdote that doesn’t prove Seth’s point.  My point is, The Flaming Lips achieved the first levels of marketing success–recognition and recall–just by being remarkably different and garnering the interest of a select group of early adopters.  (For those that haven’t heard of them, The Flaming Lips are not new; they’ve been  successful over the long term and are known for exceptionally bizarre live shows.)

I came across an interesting example in another area of entertainment with the guerrilla-advertising campaign for Dante’s Inferno, a video game based on the first part of a medieval epic novel in which a man descends through hell.  Their advertising campaign was most successful when it targeted the early-adopting and truly interested few: Video Game Bloggers! (there’s some fun stuff to read in this breakdown of the campaign)

Okay, so if this has piqued your interest to consider how this might help you, here’s my thoughts on the how:

The Agent

How are we and what we offer clients remarkable?  Across the way at SportsAgentBlog, we find a piece on the potentially damaging result of agents’ intuitive knowledge that remarkable is important to marketing.  However, the difference for those that promise big results and what Seth was talking about is to focus on whether the PRODUCT is remarkable (i.e. the agent and what he’s doing).  The RESULTS, which are the subject of so many false promises, are to be judged by the consumer/entertainer/client.

The Client

How are our clients and what they offer remarkable?  I think this is an area where agents can start to contribute much more value to clients.  The old saw is that artists don’t want to sell out and adhere their art to the “business realities” espoused by agents, producers, et al.  The revelation based on fringe sales is that it’s not about selling out or buying in, but pushing the art to the extreme and striving for perfection.   And if that artistic extreme incorporates neo-strange oddness ala The Flaming Lips bunny suits, that’s cool because they are remarkably different.

The Target

Lastly, we need to consider our clients’ clients; i.e. the consumer.  Who are the select few early adopters that care so much that they’ll spread the word and make your clients’ product successful?  For music, I am patting myself on the back some because I’ve written about this in earlier pieces: DJs that actually put shows together (unlike many U.S. terrestrial-radio DJs) are a perfect example.  For actors and many others, we realize there are folks between the artist and the end-consumer.  A film actress needs to self herself to a director before an audience of film-buffs can give the thumbs up and spread the word.  However, applying Seth Godin’s thought, we can see some other opportunities, such as focusing on getting exposure with film societies and (again) bloggers devoted to serious acting.

That said, there’s an implied point in Seth’s talk that will be very important to your client.  While “safe” is risky (because it’s near-guaranteed failure/mediocrity), “risky” is still risky–i.e. your client’s remarkable will not necessarily match-up with enough folks (or the right kind of folks) to proliferate via word-of-mouth or reach enough folks to make money.  In other words, the counsel we agents might find ourselves providing would-be entertainers is:

Commit all the way and make your art remarkable.  If that doesn’t grab people , then we’ll have the opportunity to reinvent ourselves and give it another go.

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Fringe Sales, Part I

AH-HA!  (it’s one of those moments)  Time traveling back to 2003, here’s a video about being remarkable and a major transition in marketing, and it seems like, for those in the entertainment business (I’m thinking music), it should be something discovered long ago.

I’ve been watching as many videos over at TED recently as my spare time allows.  TED, for the uninitiated, is a gathering (in person) and collection of mostly videos (on the web) by some exceptional people doing and thinking some exceptional things.

Take a look… I’ll wait.  Okay, here are the Cliffs Notes:

  • The standard mass marketing approach is wrong because there are too many choices and people don’t have time.  The “mass” (the middle of the bell curve between early adopters and laggards) are really good at ignoring and often consider advertisement an annoyance.
  • Successful marketing targets the products to a select few who really care about it then spread the word.   Example?  At the time, Steve Jobs was giving his talks to 50,000 nerds and the iPod was about 1-year old.  In the video there is also a staggering Pearl Jam example.
  • “Safe” is risky.  Average products for average people is now risky.
  • “Being very good is one of the worst things you can possibly do.”  It is boring.

So here’s the part where we need to think how to apply this as agents.  I’ll post my thoughts in Part II.  In the meantime, what’d you think?

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Naomi Campbell Strikes Again

It’s no surprise that Naomi Campbell has made the news once again for her ‘issues’ with self-restraint. As of recent, according to reports, Campbell is accused of striking her private driver, causing him to hit his head on the car’s steering column.

She hasn’t been reached for comment, as she has apparently fled the scene on foot.

This incident is one of many over the last few years, including an altercation with a housekeeper in 2007, where she pled guilty to a misdemeanor. This list of run-ins is exhaustive.

Since beginning in modeling, she has been credited in films such as Miami Rhapsody and Ali G Indahouse, as well as the television show Ugly Betty, among the few.

Some personal advice, do as to others as you would want done to you – courtesy of civility and common sense.

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Australia Rules Against Hollywood

Recently, the Australian Federal Court decided that the ISP iiNet was not liable to a group of the largest Hollywood studios including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney.

This was the first Australian trial to be covered on Twitter – demonstrating the enormity of the case.

The case was important because it set a legal precedent as to what ISPs are required to do to prevent customers from downloading movies and other content illegally.

In a 200 page judgment, Justice Cowdroy held that the evidence established that iiNet had done no more than provide an Internet service to its users. It was found that the ISP provided a legitimate communication facility which was neither intended nor designed to infringe copyright.

The studios claimed that the ISP was liable for authorizing copyright infringement because it failed to warn offending customers when repeatedly notified of the infringements by the studios. The studios had hired an online investigatory firm to intercept BitTorrent traffic and record instances of iiNet users downloading pirated movies.

This decision appears to be consistent with the theory of secondary copyright liability developed in the US case of Sony v Universal: the lack of control over the system meant that iiNet had no legal responsibility over its users, despite knowledge that some users were infringing copyright.

As far as Australia goes, this case proves that if you provide facilities that assist in infringement but you do not have control and do not act in bad faith, you will not be liable for secondary copyright infringement.

Gene Goodsell is the Managing Director of an entertainment management firm (www.navitasmgmt.com) and law firm that specialises in media & entertainment law (http://www.navitaslegal.com/entertainment-law.php). Both firms are based in Sydney but have strong links to agencies, management firms and law firms in Los Angeles. Please contact Gene regarding any global media & entertainment issues.

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Super Bowl Media Blitz Adds to the Allure

The traditional two week ‘break,’ leading up to The Big Game has produced, as usual, some interesting story lines.

Two that seem to be generating the most hype are the relationship of Reggie Bush and Kim Kardashian and the upcoming Anti-abortion commercial featuring Tim Tebow. Hollywood and politics aside, these two topics are quite interesting in themselves.

Earlier this week, in an interview with UsMagazine.com, Bruce Jenner, step-dad to Kim Kardashian, revealed that the family already has a Gold Medal (his) and an NBA Championship ring (Other step-daughter Khloe Kardashian’s husband, Lamar Odom), and was ready for a Super Bowl ring as well.

It’s hard to tell how Reggie Bush truly feels about this, but my instincts lead me to believe that it’s unnecessary pressure. After all, Reggie is the one that has to perform, and in the last three seasons, expectations have been sky high. The outcome on Sunday could deter his critics and potentially convince Saints management that their draft pick (and cash) was well invested.

Tebow will be the focus off the field, with his feature in a politically acclaimed conservative ad. Focus on the Family will fork out the cash to feature him in a 30-second commercial advocating against abortion. The Super Bowl ads are intended to amuse and mystify, but this one is doing just what it was intended, create controversy and awareness.

CBS has also come under fire for denying a gay dating-site from purchasing ad time during The Big Game. This begs the question: What is the bright-line for advertising?

Regardless, whether it’s half-time or in the through of the fourth quarter, expect plenty of cameos of the Kardasians as well as a ‘little’ Tebow.

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