Great advertising strengthens brands. Whether your campaign is online, distributed through social media, or in traditional print, there are important legal watch-outs to consider. Identify and consistently protect your trademarks, be careful snagging pics from the internet, and get Kate Upton’s autograph (so to speak). Let’s get started.
Don’t “Google” it! – We’ve become accustomed to “running a search online” and “Google it” meaning the same thing. From a trademark perspective, that’s dangerous. Although it’s great for Google’s recognition, when a brand name becomes synonymous with an action or a product type, there’s a risk of “genericide”. That occurs when a trademark looses its unique association with a company’s products or services, and instead becomes a common word in our language. “Zipper”, “aspirin” and “yo-yo” were all once brand names, but each of them lost trademark significance. Given the substantial investment dedicated to building brand awareness, be careful that advertisements don’t inadvertently sabotage your trademark rights. Simple practices like adding the symbols ® (registered mark) or TM (unregistered mark) help to distinguish brands from common nouns and verbs. And don’t substitute your brand name for your product type or an action. So, for example, it’s “run a Google® search”, not “Google it.”
The Not-So-Public Domain – Social media encourages photo sharing. But, it’s important to ensure that you have the right to use an image before including it in ads. A word of warning – not every photo online is “in the public domain”. Generally, under US copyright law, a photographer immediately owns the copyright in their image and maintains that right for several years. Using a photo without the photographer’s consent (or the consent of the subsequent copyright holder) could constitute infringement. To reduce this risk, consider incorporating images available free to the public under the Creative Commons Zero (“CC0”) license. They can be found on various websites like Stock Up, but be careful to read the relevant license details, as attribution is sometimes requested even for CC0 photos. And, to avoid running afoul of rights of publicity and/or privacy, it may still be necessary to obtain consent for use of the images of the people appearing in the photos. This leads us to …
Can I take your picture? – If you plan to use images of people in your ads, it’s a good idea to consider obtaining an advance “model” release. For better clarity, model releases are for anyone appearing in your ads – not just the beautiful and famous, such as the likes of Kate Upton. When obtaining a model release, think ahead. Initial plans may be to use a photo solely on a finite social media post. But, some campaigns go viral. (YAY!) And, marketing strategies can quickly evolve beyond initial intentions. Obtaining a broadly worded model release up front can afford the freedom to adapt your use of a model’s image across media platforms. And remember to obtain written consent from a parent or guardian for any minors appearing in your advertising. Keep copies of all releases for your records.
Given the quick pace of social media advertising, consider developing brand and advertising guidelines that will help streamline approvals in advance. That way, you will have guardrails for consistently presenting and protecting your brands. Use those guidelines to set standards for sourcing images, as well. Have legal counsel review and approve the guidelines up front, and share them throughout your marketing team, as well as with outside agencies developing your copy. And, should you happen to come across Kate along the way, send me a selfie. She seems pretty cool.
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JoAnn Holmes ("Jo") is the founder of HOLMES@LAW, LLC. She serves as Outside General Counsel to select, intimate management teams for midsize companies. Likewise, Jo provides strategic support for lean law departments.
Jo founded HOLMES@LAW to provide agile, result-driven legal solutions. Beyond risk management, we help identify opportunities. The firm's focus areas are business law and strategy, commercial contracts and global intellectual property management. We build long-term relationships as trusted collaborators, and our flexibility consistently yields great value for clients.
HOLMES@LAW is also committed to service work, including through supporting local schools and leadership groups, as well as domestic and international charities. Since its founding, the firm has dedicated more than 200 hours to community service.
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