Intellectual Property Issue-Spotting: Common Themes in Recent Ad Campaigns

Faegre Drinker Biddle & Reath LLP
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Faegre Drinker Biddle & Reath LLP

We are noticing a common theme in advertising: recent commercials, web pages and social media include a series of still images of essential workers, or short videos submitted by the companies’ own clients. In case your company decides to feature similar elements in its promotional efforts, here is a short list of frequently-encountered intellectual property issues you may wish to address prior to launching the campaign:

  1. Seek releases. Individuals depicted in the photos or footage should provide written consent to the commercial use of their names, likenesses and other identifying information. If a minor is depicted, the minor’s parent or guardian should provide written consent on the minor’s behalf.
  2. Seek licenses and confirm originality. If you ask participants to submit videos, comments, or other works of authorship, require them to consent in writing to your commercial use of that material, and grant you permission to modify it. Participants should confirm that the material they submit is their own original work.
  3. Check scope of content licenses. If the campaign features music, stock photos, or stock footage, confirm that the license you obtained will cover the scope of your intended use. For example, a license to depict a photo in a single brochure may not enable you to repurpose the same photo in a highly visible television ad.
  4. Check availability of catchphrases. If your campaign is centered around a phrase or tag line, consider performing a trademark search to assess its availability. Even if you have no plans to register the phrase or tag line as a trademark, it’s prudent to check into whether a competitor has already done so.
  5. Avoid displaying third-party brands in the campaign. Persons depicted in the images may be wearing branded apparel, or branded products may be visible on nearby shelves. Blurring or obscuring third parties’ brands and package designs should minimize the risk of allegations that you are improperly suggesting an affiliation or licensing arrangement.
  6. Check charitable claims. If your campaign features a promise to make a donation to a nonprofit, does your ad include fine print that confirms the key terms and conditions of the donation? If donations are contingent upon customers’ purchases, have you made any necessary charitable co-venture filings?
  7. Consider sweepstakes and contest issues. How will you decide which participants’ entries will be featured in your campaign? If you are offering a prize or any other benefit to only certain participants based on chance, consider whether your promotion qualifies as a sweepstakes regulated under state law.
  8. Protect your brand by considering public relations aspects. Be sure that your campaign strikes the right tone. It requires finesse to encourage purchases (or at least maintain brand awareness) while remaining sensitive to the issues presented by the pandemic. As one example, your advertising may not be well received if it shows crowds of people who are not wearing masks.

When economic circumstances are challenging, intellectual property owners and individuals may be more likely to take action to protect their rights of publicity, their brands and works of authorship. Use the above strategies to minimize the risk of accusations, and keep your brand top-of-mind from afar.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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