The practice is known as virtual advertising or virtual product placement; digitally altering or inserting logos, billboards, objects or other items on physical structures or in settings only to be seen by television or film viewers. Persons viewing such broadcasts are unaware that the reality they are experiencing is different than that which is experienced by those actually present at the place in question, and visa-versa.

It has been almost seven years since the first virtual advertisement quietly appeared behind home plate on the broadcast of a minor league baseball game. Now such ads are commonplace and can be seen behind home plate during the World Series, in the middle of soccer fields, on the red carpet during the Grammy's and on early morning talk shows.

The question becomes, when does the use of this technology cross the line from permissible advertising to deceptive or unlawful use of virtual advertisements. Two years ago there was considerable discomfort with CBS' use of such technology to change an actual NBC logo in Times Square to a virtual CBS logo during the millennium New Year's broadcast. Though the broadcasters stood by their decision to alter the image, Dan Rather, perhaps fearing the credibility of future news broadcasts, publicly stated that such use was a mistake. In a day and age when even our elected leaders rely upon the cable news networks for firsthand information on current events, the possibilities are endless and even unnerving. As the line between entertainment and broadcast journalism fades, the lack of propriety of such uses could taint our view of the world.

Ambush marketers could digitally place advertisements for competing products in locations where others have exclusive rights by contract. If all parties involved (including broadcasters, advertisers, venue operators and personalities) have not negotiated the terms of use for such virtual advertisements in advance, previously negotiated and valuable sponsorship opportunities could be compromised.

The issue is slowly being addressed by industry organizations. The European Broadcasting Union, FIFA and the European Association of Communications Agencies have each set forth policies with respect to virtual advertising. They seek to control its use, limit its application, disclose the use to viewers and involve the interests of all parties connected with the broadcast.

In the case of our web-slinger, trailers for the Spider-Man film depicted the hero swinging by a USA Today billboard on Two Times Square. In reality, the building has a large multi-story sign for Samsung (Samsung is a competitor of Sony which is the parent company of Columbia Pictures). Advertisers undoubtedly factor in the high exposure in television and film when assessing the cost for purchasing space in such a recognized location. The building's owners emphasized the high exposure of its billboards, while alleging that the defendants solicited replacement virtual advertisers. The complaint filed in New York included claims of trade dress infringement, false endorsement, unfair competition, deceptive trade practices, dilution and injury to business reputation and electronic trespass (a new claim which has found a receptive ear from some courts in connection with Internet cases). In addition to seeking an injunction against the defendant's apparent intent to use the altered images in the final film, the plaintiff's sought actual and punitive damages from the defendant as a result of this action.

Though the Samsung sign did appear in the ultimate version of the film released to theatres, the lawsuit did bring more attention to the growing practice of using virtual advertising and highlights the need for advertisers and broadcasters to consider the ramifications of using such technology without the use of conspicuous disclosures or disclaimers or obtaining the consent of all affected parties