Creative advertisers of America began to harness the power of the flash mob for marketing gain several years ago.  Sometimes such efforts  lead to heart warming results as with the organization of a group to visit Caine’s Arcade – a homemade arcade created during summer vacation by a 9-year old out of cardboard boxes in his Dad’s used auto parts store in LA.  The resulting short film  about the event is a must see.  Caine was hopeful for customers but there were few visitors to the auto parts store as the business largely migrated to Internet sales.  But one day film maker Nirvan Mullick happened by and was Caine’s first customer.  Amazed by what Caine had created, he organized a flash mob to visit Caine’s Arcade bringing him hundreds of customers to the store front.  And the movie went viral with a combined 3.5 million hits on Vimeo and YouTube.

Seeing Caine and his upstart business got me thinking about the use of flash mobs for mainline business –established companies and new businesses alike.  Wikipedia defines a flash mob as a group of people who assemble suddenly in a public place, perform an unusual and seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment, satire, and artistic expression organized via telecommunications, social media and viral emails.  Wikipedia uses a different term, smart mob, applied to events and performances organized for advertising, of a cause, service or product, rather than purely for entertainment – including political expression or commercial advertisement.  The flash mob as advertising has been used very effectively by T-Mobile as part of its Life’s For Sharing campaign including with dances in Liverpool Street Station  and London’s Heathrow airport  and here  are two great examples by TNT and Tic Tac.  If your marketing department has grown bored with buzz marketing – or encouraging volunteers a.k.a. brand mavens to try products and talk about their experiences — and wants to organize a flash mob to promote your product or service, what are some things for the lawyers to consider?  Criminal, property, tort, intellectual property, privacy, First Amendment, and entertainment law can all be at issue.  Efforts to regulate flash mobs bump up against the First Amendment right of free speech, including one proposed Cleveland city flash-mob prevention law that was vetoed by the mayor as overbroad.  Planning a flash mob can be grounds for criminal charges if any aspect of the event is illegal.  Applicable state or local laws may affect the ability of groups to congregate in certain areas or engage in certain behaviors.  As an organizer, it is a good idea to set and clearly communicate guidelines and  make sure potential participants know the ground rules.  Careful consideration needs to be given to how to reach out to potential participants – including that any reach out via text message is with consent of the recipients and comports with the Telephone Consumer Protection Act  – and how to ensure that disclosure of the identity of the company organizing or sponsoring the event is clear.  Many of the industry best practices and standards of conduct  put in place by WOMMA (Word of Mouth Marketing Association) are likely good starting guidelines for smart mob organizers as well.

And the flash mob has had continuing positive effects for Caine and his business even after his 15 minutes of fame are winding down.  Mullick set up a scholarship fund for Caine with over $140,000 in donations, the owner of a pinball machine store gave Caine his own real pinball machine and reportedly over the weekend before last he had 7 paying customers to his arcade!