Clearing Advertising and Promotion Creative Content Checklist
- Can I use Taylor Swift’s picture in my ad for a promotion where the grand prize is a ticket to her concert?
- Can my CMO use the company twitter feed to tweet out a photo of a celebrity leaving one of my stores?
- Can I headline my ad "Jim Carrey Is Not a Winner", if I have a release from Jim Carrey, a plumber from Boston"
- Can I use movie stills in my ad for a promotion for Blockbuster Video?
- Can I call my promotion "Win a SONY" if the grand prize is a Sony TV?
- Can I use my competitors’ trademarks in the Metatags for my Website?
- Can the answers to a trivia contest be the names of celebrities?
The most successful promotions gain awareness from creative exploitation of the brands and properties of the partners in your promotion. One of the keys to reducing the risk of being sued over your promotional materials is to make legal review an integral part of the creative process. Dealing with the legal issues up front -- before money is spent toward production -- will allow you to take necessary (and often easy and inexpensive) steps to avoid costly and embarrassing situations later on.
Before the creative process begins, make sure that you have a signed contract that clearly defines who is responsible for what. Then, as you consider different creative executions and you identify the rights that need to be obtained, it should be clear who would be responsible for obtaining any necessary permission. Keep in mind that it has become increasingly more difficult to clear rights because of the exponential increase in copyright and trademark rights and the number of individuals and businesses registering and policing such rights, particularly sports and entertainment celebrities who may also pursue their expanding rights of publicity.
The legal rights, which may affect content include:
- Copyright
- Trademark including trade dress, and anti-dilution rights
- Unfair Competition/Passing off
- Right to Publicity
- Right to Privacy
- Contract rights previously granted affecting one of the above. (For example, an exclusive right to use a trademark has been previously granted to another.)
- Special rules regarding the use of "the Olympics" trademarks, national symbols and currency.
The elements, which implicate these rights include:
[ ] Artwork. Do you own the copyright rights or have you obtained the necessary releases for the recognizable artwork that you are using? You may even need releases for the contents of the artwork, for artwork that is only partially visible, or artwork embodied in packaging.
[ ] Endorsements and testimonials. Have consumer endorsements been obtained before the consumers were told that they would appear in advertising, i.e. are they impartial? Have you obtained endorser's certificates?
[ ] Film footage. Have you obtained a release from the copyright owner? Have you obtained any necessary releases for the contents (e.g., people and music) of the footage? Have you dealt with any applicable union issues?
[ ] Flags and governmental materials. Does the use of a flag or other governmental materials (e.g., seals, insignias, money, stamps, and monuments) falsely suggest the endorsement or authorization of a government entity? Are the materials being used in accordance with applicable law?
[ ] Locations. Have you obtained location releases? Does the use of a building in the background falsely suggest the endorsement or authorization of the owner or tenants of that building?
[ ] Look-alikes, sound-alikes, and impersonations. Do you have permission from the impersonator? Have you determined whether it is advisable to obtain permission from the person being impersonated as well?
[ ] Music. Do you have the necessary permissions to use the composition, the master, and the principle performers? Have you dealt with any applicable union issues?
[ ] Names or likeness of people. Have you obtained all of the necessary releases? Does new computer technology raise issues not previously addressed, such as sampling? If you take one feature from a face, a nose or an ear of a celebrity and construct a new face is that an invasion of their rights to privacy or publicity?
[ ] Organization names or insignias. Does the use falsely suggest the endorsement or authorization of a third party? Are any permissions necessary? Are you using trademarks properly?
[ ] Parodies. Have you determined whether the parody could subject you to a claim of trademark or copyright infringement? Are you using the parody to comment on another work? Are you copying only what is necessary? Does the parody falsely suggest the endorsement or authorization of a third party?
[ ] Photographs. Have you obtained releases both from the owner of the copyright (e.g., the photographer) and from the people pictured?
[ ] Props. Prop releases may be needed or advisable if the use of the prop (e.g., newspapers, books, maps, toys, products, and distinctive clothing or jewelry) could subject you to a claim of trademark or copyright infringement or to a claim that the use falsely suggests the endorsement or authorization of a third party.
[ ] Disclaimers. Are the disclaimers adequate, are they clear and conspicuous? Are they in close proximity to the claim they explain?
[ ] Quotations. Have you obtained the necessary releases? Are you using a quote that fairly represents the entire work quoted from?
[ ] Titles of movies, books, periodicals, songs, etc. Does the use fairly suggest the endorsement or authorization of the author, producer, singer, etc?
[ ] Trademarks and identifiable products. Does the use fairly suggest the endorsement or authorization of the owner/manufacturer? Are you using the products in a disparaging manner? Are you using the trademarks properly? Does the use "dilute" the rights of the owner?
