Creative advertising can drive revenue and build brand strength. A duck drove a supplemental insurance company into national prominence, and golden arches symbolize a network of hamburger restaurants. Other examples are plentiful.
Legal departments can support this innovation through safeguards that avoid infringing or misappropriating the rights of third parties. These 10 considerations can help provide safeguards.
- A Common Foundational Framework Avoids Misappropriating or Infringing Third-Party Rights.
Advertising is itself a work and may further be comprised of more elemental components: images, music, people, brands, and more.
- A review of all advertising should begin with identifying rights and issues within works as a whole, as well as individual elements of the work;
- The review should determine whether a third party owns identified protectable rights. For those rights held by third parties, the review must evaluate whether permission is required for the intended use, and if so, obtain a license or other permission from the third-party owner.
As a corollary, the review should consider the claims that could be asserted by the third party and any defenses to those claims.
- Internet Exposure Helps the Brand and Increases Due Diligence.
Just as the Internet expands outreach, particularly through social media, the vetting process must address the corresponding risks.
Materials can be copied with ease without regard to the original source. The original source may have a copyright or contractual claim in the underlying content, and the original content may not even be accurate (e.g., inaccurate facts or digitally manipulated photos).
Good due diligence necessitates understanding the source of each component in the advertisement.
- Social Media Sleuths Seek the Next Big (Embarrassing) Discovery.
Social media users can sometimes spot infringing or problematic content in minutes, while spotting the same issue in traditional advertising might have taken weeks or months.
The risk of such embarrassing discoveries can be reduced through effective diligence.
- An Image is Worth a Thousand Words. When the Wrong One is Used, Sometimes as Many Headaches.
Images are valuable IP to many photographers and other visual artists. Their use becomes a source of licensing revenue for rights holders and, occasionally, their litigators.
Due diligence extends to confirming correct usage rights. For stock images and any image retrieved from the Internet, the origin for each image needs identification.
Go to the source, and review that image’s terms for usage, including the volume of reproductions (e.g., 500,000 on packaging) or mediums (e.g., print but not online).
Although images developed in-house are often owned by the company if the proper documentation is in place, appropriate diligence in reviewing internal files can confirm correct sourcing and ownership, including correct copyright assignment documents.
Meanwhile, hybrid images containing elements of both may require understanding the manipulation of the underlying works.
- Sweet Music Can Strike the Wrong Chord.
Music used in advertising requires sophisticated review. All musical recordings comprise rights related to a composition and a master.
Further rights become relevant based on the performance of it, as well as the potential synchronization of music with video.
- Branding Can Bring Goodwill and Battle Scars.
Identifying all trademarks used in the proposed advertisement, including word marks, taglines and slogans, is part of a good vetting approach.
Using another’s mark in your own advertisement should be for a justifiable, legally appropriate reason. The misappropriation of another’s mark to promote your own risks willful infringement that can carry treble damages.
- When You’re a Celebrity, it’s Never Adios to Publicity Rights.
Any reference to a celebrity from a company’s social media account arguably has a commercial purpose.
Evoking a celebrity from that account likely will be viewed within a commercial context, even if the reference is subtle, as trying to connect the celebrity’s fame with the company.
Accordingly, social media policies should urge caution in referencing third parties through the company’s social media accounts.
- Tattoo Diligence Across Your Forehead.
Other important considerations are so-called “hidden” concerns.
For example, when retaining a celebrity or athlete to appear in print advertising or in a video game, does the celebrity have identifiable tattoos on their body? Is there any claim to the tattoo by the artist?
Ideally, the celebrity will indemnify against this risk of a claim by the tattoo artist.
- Partner Early in the Risk Mitigation Review.
Good advertising often emerges from creativity, and to some, a legal review that says “No” can be perceived as impeding creativity.
Marketers can accept rejection as many creative ideas can be rejected based on the audience, but the review may benefit from being earlier in the process to avoid being seen as the only impediment.
- “It Depends.”
As in all things, “it depends.” Each potential advertisement is unique in its own way, and diligence will play differently for your organization.
Learn More: This article is a companion to “How to Help Marketing Clear the IP Hurdle” (ACC Docket, Nov. 2024).
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