Fashionistas are speculating whether “The Devil Wears Prada 2” can help Valentino's riveted “Rockstud” make a comeback. They discuss Chanel's garments, Dior's design, and Dolce & Gabbana's fashion show. People are downing Starbucks coffee nonstop, with the occasional Diet Coke thrown in. Maybach sedans are the cars of choice: You would probably have to watch the film scene by scene to determine whether there’s even a single shot in which no well-known brand is shown. Of course, this fits into the film’s story sometimes better than others.
But wait, what was that again about covert advertising, product placement, and all that? Shouldn't the film perhaps be labelled as a continuous infomercial—or, at worst, from start to finish? Older readers may still remember this sort of thing from Stefan Raab's shows.
In fact, more than 30 years ago, the Federal Court of Justice addressed the question of how product placement should be assessed from a legal perspective.
The initial question is always whether an action 'is intended to promote the business of the company in question' - that is, to boost sales of a specific product. The situation is straightforward when the brand owner pays for the product placement. However, this is often difficult to detect from the outside. This is why courts rely on the following reasoning: Based on common sense, a commercial act (and an intent to promote competition) is presumed to exist when a product appears conspicuously often and without any apparent editorial, artistic, or dramatic justification.
At any rate, when it comes to the fashion brands in “The Devil Wears Prada 2”, it’s hard to deny that there is a 'dramatic reason' for featuring them. Incidentally, if reports in the marketing media are to be believed, no money was spent on this; the brands simply promoted the film themselves (Maybach, for instance, with a co-branded campaign titled “The Art of Arrival”). However, this should still be a significant consideration. In that respect, we can conclude as an interim finding that this is probably a case of product placement.
The standards that apply to product placement, however, vary depending on the medium. In the broadcasting sector (which includes television), this issue is specifically regulated by the State Media Treaty. Under the treaty, covert advertising is prohibited but product placement is permitted under certain conditions and within certain limits. In particular, it must be clearly indicated – on television, for example, at the beginning and end of a programme, as well as when the programme resumes after a commercial break.
The producers of “The Devil Wears Prada 2” can breathe a sigh of relief, as feature films tend to be subject to less stringent requirements. Nevertheless, drawing the line is not easy: simply having a car manufacturer pay for the main character to drive one of its vehicles in a film does not automatically make it inadmissible. It should also be noted that this vehicle is often depicted in a conspicuous manner that is not called for by the plot. Just how much of a balancing act this can be is demonstrated almost perfectly by Meryl Streep and Anne Hathaway (not only) in their conversation toward the end of the film.
Any publication—such as Runway—that evolves from a pure glossy magazine into a hybrid world of social media and strategic partnerships must also bear in mind that the legal framework for advertising and product placement varies depending on the type of media. Different laws may even apply. For instance, the State Media Treaty has separate chapters for broadcasting on the one hand and telemedia on the other (which also differ in content); it does not apply to movie theatres or newsstands. The press code applies only to the press while competition law applies to everyone. Complicated? Yes. Product placement and cross-promotions are not light entertainment.
Even German female influencers have already tested the limits of what is permissible: Cathy Hummels, for example, was able to convince the Federal Court of Justice that she has a genuine personal interest in fashion. Posts for which she receives no consideration as a result do not have to be labelled as advertising, even if they promote her commercial social media profile. The situation was different for influencers who had received something in return. This naturally raises the question of whether it counts as 'consideration' if the production company does not have to pay for the Coke – or if Anne alias Andy is allowed to keep the dress worn in the Hamptons after filming. For the record, media regulators draw the line at a product value of 100 euros, though this is open to discussion on a case-by-case basis.
And that’s not all: the guidelines are even stricter when the target audience is primarily children.
As is so often the case with legal matters, the tried-and-tested saying applies: The devil is in the details (not in Prada).
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