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Let’s say you’re a web-site designer or web marketing consultant. And let us stipulate that you have a client who wants you to do something that is either illegal or merely unethical — something that either violates State or Federal government laws, the Google Terms-of-Service, or Google’s Webmaster Guidelines or Adsense Program Policies.

You complain to your unwise client that this could get both of you in trouble. “Don’t worry,” says the client, “we can draw up a contract that says you’re not responsible for this project. I’ll take all the blame.”

So, are you protected?

What If Someone Dies?

To illustrate this kind of situation, assume that what you’re doing might result in someone dying. Hard to imagine, but grant me that for a moment. Are you protected from the legal, criminal or civil penalties because you had an agreement with your “employer” that spelled out a claim that only the hiring client was responsible?

Sounds silly, of course. No you would not be protected. Both of you would go to jail, maybe even get the death penalty if it applies.

What If People Merely Lost a Limb?

What if the contracted project only resulted in maiming someone, or seriously injuring them — say it chopped off their arm, for example. Could you avoid responsibility there? Surely not. You could be both criminally and civilly prosecuted for damages, assault, conspiracy, etc.

Okay, What About Causing Financial Ruin?

Say your project only did financial damages to someone or some company. Who is responsible? Can you avoid paying damages, since you only did the web design of the damaging web-site? Or, if you gave advice about contents for the site, will your contract absolve you of any responsibility for possible damages?

It’s a slippery slope, extending down from death, maiming, financial ruin to mere insults; who IS responsible, you or the client?

The “Devil Made Me Do It” Defense

This sort of reasoning didn’t work for the accused Nazis at The Nuremberg Trials. They died, even though they were only following orders (so they claimed).

Aren’t  Web-Site Contracts Different?

Working under a contract that says you aren’t responsible could help (possibly) give some protection from the client sites’ being banned by any 3rd party due to policies he recommends or requires of you. This is an EMPLOYMENT contract. You are a “work for hire” type employee, and he assumes all responsibility for your actions. That’s the point of the contract, one of them anyway. This is the intent of the document, but it may not survive scrutiny in cou

Just because you both signed it doesn’t mean a court will agree to it. The court didn’t sign it. In fact the court can dissolve it. Courts can “penetrate” the veil of protection enjoyed by parties to any agreement. A court can enforce the agreement, or completely erase it and treat the parties as unprotected actors; each responsible for his own actions. It’s done all the time in tax cases, for example.

The Judge Didn’t Sign Your Contract, You Did

When you walk into a court, you’re in a special place. The “boss” there is the judge (and/or the jury). While they CAN recognize instruments that create “fictional relationships” like partnerships, corporations, contracted work arrangements, etc., they are not required to. If they decide to set aside such a relationship, watch out! Each individual is on their own.

Even employees are required by the law to follow certain commonly accepted legal, moral and ethical practices.

Any contract between the client and the employed independent contractor, no matter what it says on its face, must still obey any and all controlling State and Federal laws governing the Internet. Further, they will both be liable, as agreed parties taking the contracted actions, to suffer any penalties exacted upon the action — whether such penalties are exerted or enacted by governing authorities, search engines, ISP companies or whoever.

Some contracts designed to avoid external authority, laws and regulations are really a CONSPIRACY instead of a contract. An agreement between two parties that any actions they take under the agreement that violate laws, terms-of-service, regulations of ISP firms and so on will only result in actions upon one of the signatories to the contract could easily be set aside by any court. The agreement presupposes that there will be a violation and tries to evade responsibility. This is certainly a kind of conspiracy.

A court friendly to the worker might preserve the contract to protect the worker against civil claims of damages in court — but only if the judge preferred to ignore the controlling body of common law pertaining to “generally accepted” practices.

Many judges can dissolve a contract if it flies in the face of a “reasonableness” argument. This always surprises people who are new to the courts. A judge and a jury (when convened) has enormous power. The best plan is to STAY OUT OF COURT. The way to avoid the court is to DO THE RIGHT THING in the first place.

The point is: Obey the laws governing the ‘net. Obey Google’s TOS. Obey the commonly understood ‘good practices’ of being a webmaster. You’re the professional. If you do something bad that was demanded by your client, any court or authority can judge you legally, morally and ethically (and even financially) responsible, setting aside any contract between you.

Not saying they WILL set it aside, only that they could and might do. Why not simply do the right thing in the first place.

If a web-design or internet marketing client insists that you break the rules, don’t take the job, contract or no contract.

We first published these comments in simpler form at WebProWorld.com, a great place to read lively discussions about web mastering topics.

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There’s a common belief that being ‘creative’ is the way to be successful in the world of hype. Many advertising campaigns are judged as being successful if they are simply the most creative. Awards are given out for the most creative campaigns by the big marketing and advertising organizations. The Addy, the Cleo, and so on.

But, who gives out an award for the ad campaign that actually sells the most products?

Huh?

Hey, why mention SALES at a time like this, and ruin the romance of the moment. Creativity — that’s what we’re after.

Thousands of artists, performers, radio jocks, DJ’s, actors, models and impressarios occupy the CEO or President’s desks at thousands of ad businesses across the country — all of them calling themselves “advertising agencies”. You can tell they are an advertising agency because that is the way they list themselves in the Yellow Pages. “Get yourself a Yellow Page ad, and you can be an ad man, too!”

But did they get their college degree in advertising? No. If they got one, they got it in the College of Design. The Advertising Department would have been across the campus, located deep inside the College of Business. In that building, people also study marketing, use spreadsheets, and do consumer research. They study sales. They know something about mathematics, something about art, something about theater, something about music, something about focus groups and consumer polling. They know about demographics, psychographics, studies of brand recognition, consumer motivation, selling strategies, and market testing. These folks are sales people. They use mathematics, analytical market research, comparative product testing and similar approaches. And, they marry those technologies to artwork, illustration, photography, singing, dancing, acting, page design and layouts.

The idea is to SELL something.

Selling requires a witches brew of art and science. Combining them successfully demands a special ability to converge these two worlds into one productive team. You know the team has ‘won’ when the product being advertised SELLS MORE than it did before. It’s that simple.

I’ve met them socially hundreds of times. All dressed up in a suit and tie. Expensive duds. Very slick — hair in the latest styles. You engage them in small talk, and finally they get around to asking what you “do”. I’d reply that I’m an advertising agent and they’d say, “Hey that’s what I do. I own Fancy Stuff Creative down the street. You’ve probably seen my stuff for Sad Schmuck Jeans all over, huh? That’s me! The ads, not the jeans, of course. We won a bunch of awards on that run.”

After a few painful bouts negotiating myself through this verbal minefield, I soon learned to wean myself away from these folks — asap. I found you could never ask them how much money their award winning campaign made the client — they didn’t know (or care). You couldn’t even mention money, increased market penetration, and so on. That would be changing the subject. “Hey money, sales, market share — that is marketing, not advertising!” they would exclaim. “We leave that to the bean counters and boys in pin-stripes. We’re not MARKKETING people, we’re ADVERTISING people. Creativity, man… that’s our thing.” And then they would shun us real ad agents… as if we were members of those offensive sales-oriented counters of beans.

But if ad men are not artists, and not marketing people, then who are they?

They’re salemen, pure and simple. They’re salemen who lead a team of creatives and bean counters. They are people who come up with a real reason people should and probably will, actually buy the product. Then they produce the ad campaign that will end up doing the job.

Somewhere along the way, there may be a bit of creativity. It may show up in the way research is done to find out why people prefer the competitions’ products, or it may show up in the way the music and the video is done in a TV commercial that delivers the selling proposition. But, creativity is not the main thing.

But of course, the artists who run ad agencies have the cart before the horse. Advertising is the name of the industry. Artists are hired by ad agents to illustrate, to act in, to photograph, to portray and to dramatize a selling concept — a sales proposition. It’s all about sales. In producing sales, sometimes it pays to be creative. But usually, it pays to purposefully NOT be creative. We want memorability, and comprehension, and persuasion, and action (purchasing).

Creativity usually gets in the way of sales.

John O’Toole was for many years the Chairman of Foote, Cone & Belding Communications, Inc. Under O’Toole, Foote Cone became one of the world’s largest agencies with annual ad budgets in the billions of dollars. He was well known for devising advertising campaigns that continued to produce well for clients for many years, sometimes even decades. His client product’s became famous, and very profitable. And, while his campaigns were enormously successful for a wide range of famous brands, he disavowed any reliance on creativity, in fact he often warned young advertising agents:

“If you want to invest in creativity, buy some beautiful artwork and donate it all to a museum. Don’t waste your money forcing it into your ad campaigns.”

– John O’Toole, Chairman of Foote, Cone & Belding Communications and later President of the American Association of Advertising Agencies, from “The Trouble with Advertising”, Time Books, 1985.

Another great ad man often warned about relying on creativity in his books and speaches around the world. David Ogilvy was founder and Chairman of Ogilvy & Mather Advertising, which was also a multi-billion dollar agency with famous brand campaigns that produced for clients over decades. Ogilvy devised simple, dramatic and persuasive presentations. He had few secrets about the reasons for his success. He wrote about the whys and wherefores in 3 books:

1. “Blood, Brains & Beer: The Autobiography of David Ogilvy”, now out of print (written in the 1950s)
2. “Confessions of an Advertising Man”, Atheneum (1963)
3. “Ogilvy on Advertising”, Vantage (1985)

David Ogilvy and Ogilvy & Mather became so successful — due to the success of their sales campaigns — that Ogilvy himself became an icon of the industry, amassed a fabulous personal fortune, and retired to a castle in France. Throughout his career, he was known as an opinionated, rule-driven master of the science.

Ogilvy never said that he had “created” an ad. He preferred to say he had “written” it. Ogilvy had cut his teeth on working in the consumer behavior research department for George Gallup, starting in the days before World War II. As a result of that experience, and the laboratory experience of spending many millions of client dollars proving what works and what doesn’t, Ogilvy became convinced of certain simple guidelines that he called “hints” on how to write his sales communications, his ads.

Ogilvy used to say that “I hate rules.” But he used consistent principles driven by consumer research over a lifetime to make billions in profits for his clients. Ogilvy was well-known to start his pronouncements to clients and coworkers with “Research shows…” He could do that because he had always done his homework.

“Do your homework.” Ogilvy used to say to understudies in his office. He practiced what he preached. Before writing an ad, he would intensely study the product, the competition, and the product’s potential buyers. This homework often lasted for weeks. He developed ideas about how the product played in the market, which he called ‘positioning.’ And, he extracted some ways to inform the buyers decisions — to persuade them to buy his product instead of the competition’s. He called that ‘benefit-driven advertising.’ But he disowned any allegiance to creativity:

“I do not regard advertising as entertainment or an art form, but as a medium of information. When I write an advertisement, I don’t want you to say that you found it ‘creative.’ I want you to say you found it so interesting that you bought the product. When Aeschines spoke, they said, ‘How well he speaks.’ But when Demosthenes spoke, they said. ‘Let us march against Philip.’

– David Ogilvy, Ogilvy & Mather, from “Ogilvy on Advertising”, 1985.

You want to accomplish these things in an ad:

1. Have your audience know what this about at a glance.
2. Associate the ad’s ‘aboutness’ or subject with an already existing internal value. Something they know and understand, and already think is important — and want more of, or want to know more about.
3. Then you want to link the product or service — the content of the ad — to that value. You want to show how that product or service is unique and superior to other products, and where and how to buy it. You want the audience to buy it!

This means that the audience must:

1. Understand the sales message
2. Comprehend it
3. Believe it
4. Remember it at least long enough to…
5. Act on the sales proposition by…
6. Buying the product

What does this strategy require from the person producing the ad?

1. Research on the features of the product/service being offered.
2. Research on the competition.
3. Research on the values of possible customers. Who they are, what they read, watch, listen to, purchase. Where they shop and play. How to reach them.
4. Research on the market for this product or service. How much is being sold now, by which competitors. Where is it being sold? How much is it sold for? Who is the buyer by age, sex, lifestyle, income, neighborhood, etc.
5. Development of a selling proposition that may persuade the possible customers to buy the product.
6. Produce and illustrate this proposition with dramatic sales campaigns.
7. Measure the success of these campaigns against profits, market share, and possible future trends.
8. Adjust strategies and re-produce new campaigns to improve on those sales figures, or continue and expand the campaigns — whichever is needed.

Where did you see creativity in that list? You didn’t.

Oh, well maybe it might be involved in the production of Step 6: …dramatic campaigns.

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