Since the birth of SHOOT 50 years ago, the number of legal issues that advertising agencies and production companies are faced with has exploded. Dealing with legal compliance and managing risk is more complicated than ever. In honor of SHOOT‘s birthday, here are 50 legal principles that will help keep you out of trouble for the next 50 years. (1) If you are in doubt about whether you can use a location, a prop, or some other third party material, get a release. (2) And get it signed. (3) The release should cover the rights you need now as well as the rights that you may need later. (4) You don’t always need a release–but you should get some good legal help before you make that decision. (5) If you have asked for permission, and someone has said no, it’s probably a good idea to go in a different direction. (6) Copyright law does not protect ideas or facts. (7) While it is often permissible to be inspired by someone else’s work, it is usually not acceptable to copy the specific creative choices that people make. (8) You cannot have copyright infringement without copying. (9) Don’t believe people when they tell you that there are a certain number of words or notes or elements that you’re allowed to take. (10) Whether a work is “public domain” has almost nothing to do with whether the work is publicly available or has a copyright notice on it. (11) If you are hiring a third party (such as a composer or an illustrator) to create original creative material, you should have an agreement with that person that grants you the rights that you need. (12) Avoid sharing your inspiration material with that person, since that increases the likelihood that the person will commit copyright infringement. (13) It’s best to use words that describe a general style (“sixties British rock”) rather than give a specific example (“the Beatles”). (14) Get indemnified. (15) Make sure that you’re covered by insurance as well. (16) Trademark problems can come up in many different ways — such as taglines, logos, store names, and props. (17) During production, if there’s anything that calls to mind — or could possibly call to mind — a third party, consider whether a release is advisable. (18) Even the use of a fake store name, an incidental prop, or a logo that appears in the background can create an issue. (19) When creating new trademarks, ask your lawyer to do a trademark search for you. (20) And don’t forget about registering it. Be sure you have releases from any person whose (21) name, (22) signature, (23) picture, (24) likeness, or (25) voice is used. It can also be a problem if you use (26) a look-alike or (27) a sound-alike. (28) Even if you don’t use any of these things, but you call a person to mind in some way, there still may be a claim. The right of publicity protects (29) politicians, (30) celebrities, and (31) regular people too. (32) The estates of dead people often have rights. (33) And don’t forget about SAG and other union obligations. (34) Agencies and production companies also have some responsibility for ensuring that their advertising doesn’t violate the law. (35) All claims that are made in advertising–things that are objectively provable and material to a purchasing decision–must be truthful. (36) You’re responsible not only for the claims you intend to make, but for the consumer takeaway as well. (37) You must have substantiation for both express and implied claims. (38) Where you are concerned that a claim may be misinterpreted, you can use a disclosure to make the meaning more clear. (39) Disclosures are usually only going to be effective if they are clear and conspicuous. (40) That means that consumers need to actually see, read, and understand the disclosure. (41) Mouse type is rarely effective. (42) Demonstrations of product performance need to be real. (43) Undisclosed mock-ups and special effects are generally not permitted. (44) The performance should also reflect the type of experience that consumers will typically have. (45) If you need to simulate product performance, make sure to disclose that. (46) If you are going to use a consumer endorsement, that should be real too. (47) If it’s not really a consumer, you generally need to disclose that. (48) If there’s something else going on that may impact the credibility of the endorsement–you paid for the opinion, for example–that usually must be disclosed. (49) Consumer endorsements can include statements on a blog or a consumer review website too. (50) Even though emerging media may give you opportunities to mislead consumers into believing that they are seeing independent consumer content, consumers generally have the right to know when they are being shown advertising. So, if you are advertising to consumers, be up front about it. Congratulations SHOOT! It’s been a great pleasure being a part of the SHOOT family and I look forward to many more years of SHOOT issues (and Legalease columns) to come.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. Jeffrey A. Greenbaum ESQ is a partner at Frankfurt Kurnit Klein & Selz, New York.
