• by Barry M. Benjamin , Rebecca L. Griffith , June 19, 2008

You are very excited - your company is set to launch a new user-generated content contest. Voters get to choose the winner, which you plan to incorporate into your upcoming ad campaign.

You should be aware, though, that legal pitfalls abound. While UGC contests can be wonderful marketing tools, you should take certain steps to protect yourself. One of those pitfalls is getting "Rickrolled." Unless your official rules are properly drafted, you may find yourself the victim of this popular prank.

Rickrolling is a prank involving a bait and switch on the Internet, where a person provides a link they claim is relevant, but which actually takes the user to the 1987 Rick Astley song "Never Gonna Give You Up." Rickrolling also occurs when the song is played loudly in public in order to be disruptive. The latest incarnation of Rickrolling is in the interactive promotions arena, where large numbers of voters, led by web communities such as Fark.com and Digg.com, organize to vote for the Rick Astley song in UGC contests.

The New York Mets were recently the target of this prank during their week-long contest inviting fans to help select the new sing-along song during the eighth inning of every home game. The contest also allowed for a write-in candidate, which gave pranksters the opening they needed to rig the vote in favor of "Never Gonna Give You Up". The power of crowds triumphed, with the Rick Astley song winning the contest with over five million votes.

Luckily for the Mets, their contest rules specified that Internet voters would only "help decide," rather than determine, the winning song, so the Mets were not stuck with the prank song selection all season long. Showing they had a sense of humor, though, the Mets did play the Rick Astley song during the eighth inning of the home opener, which prompted raucous booing. The Mets also played the top six selections once apiece during the first six home games. The one that received the best fan response was deemed the actual winner.

To keep the good times rolling, the pranksters celebrated their successful Rickrolling of the Mets by linking to a video on YouTube of the song playing at the home opener, along with the crowd's furious reaction. MLB Advanced Media was able to successfully get the video taken down with a DMCA notice, although fan videos of the event are reportedly still accessible at various sites.

While it is often said that there is no such thing as negative publicity, this recent Rickrolling episode demonstrates how easily UGC contests can get hijacked. Not only can pranks interfere with, and possibly derail, your marketing campaign, your company risks alienating consumers if its reaction to the prank is perceived as too harsh or humorless.

Therefore, it is best to anticipate the possibility of such gags in advance by including provisions in your official rules to give your company an easy-out should the contest go awry. For example, by including a provision specifying that your company, in its discretion, may disqualify entries or select the winner, you will protect your company from an undesirable outcome. Of course, it is always in your company's best interest to have a true winner, but when the winning entry clearly does not reflect the wishes or tastes of your consumers, such a provision is essential.

A related issue, as highlighted by the link to the YouTube video showing "Never Gonna Give You Up" as it was played at the Mets' home opener game, is the unauthorized display of copyrighted work. While the ability of sites like YouTube to show copyrighted works is hotly disputed, your company, as the publisher of user-generated content, could unwittingly become subject to liability for displaying copyrighted works posted by entrants. To avoid liability, your company should file the appropriate DMCA copyright agent safe harbor notice with the copyright office, include the appropriate notices in the official rules, and comply with any legitimate takedown requests. Taking these steps will go a long way towards limiting any potential copyright liability for hosting user-generated content.

Although the popularity of Rickrolling will inevitably wane, one thing is certain - a new prank is always right around the corner. While these pranks can be a trap for the unwary, properly drafted official rules will provide you with the ability to control your promotion. The rules can help you balance a sense of humor against a contest result that is antithetical to your corporate values, and ensure that your company and the pranksters do not remain "Together Forever."

Barry M. Benjamin and Rebecca L. Griffith are attorneys with the New York office of Day Pitney LLP, practicing advertising, marketing and intellectual property law.