Keeping It Legal, Intellectual Property Issues In Advertising


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The advertising industry has a lot of "common courtesies," but do you know which ones are legally binding? Alicia Brown Oliver of Chambliss, Bahner & Stophel, P.C. presented this topic at an AAF luncheon in Chattanooga, TN.

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Keeping It Legal, Intellectual Property Issues In Advertising

  1. 1. © 2013 Chambliss, Bahner &Stophel, P.C. All Rights Reserved.Presented byChambliss, Bahner & Stophel, P.C.Liberty Tower • 605 Chestnut Street, Suite 1700 • Chattanooga, TN 37450cbslawfirm.comMarch 20, 2013Alicia Brown OliverKeeping It LegalIntellectual Property IssuesinAdvertising
  2. 2. • Copyrights: protects creative works, not ideas• Trademarks: protects words, symbols,slogans, used to indicate source• Rights of Privacy/Publicity: protectappropriation and exploitation of a person’sname and likeness• To a lesser extent,– Patents– Trade secretsWhat IP Rights Are at Issue inAdvertising?
  3. 3. Ownership of Creative“I Paid Someone to Create It; I Own It, Right?”“Upon completion of the Services andpayment in full from Client to Agency of alloutstanding Invoices, all final Services willbecome the exclusive intellectual property ofClient . . .”Agency Creative WorksWorks“You agree that all creative works prepared by you will be consideredworks-made-for-hire and our sole and exclusive property. In the eventthat the creative works are not copyrightable subject matter, or for anyreason are deemed not to be works-made-for-hire, then and in suchevent, by this agreement you hereby assign all right, title and interestto said works to us . . .”
  4. 4. Ownership of Creative“It came from the internet; It must be in thePublic Domain, Right?”All Images are Standard License. Need imagesfor merchandise or print runs over 250,000?View Enhanced License Plans.
  5. 5. Protecting Pitches“Agency will present to Client ideas andconcepts for (the “Ideas”) which are outsidethe scope of Services, for potential use infuture projects. It is understood that until andunless the parties reach an agreement settingforth the terms under which they will mutuallyproceed to develop and exploit such Ideas,including amending the Scope of Work and FeePayment Schedule in writing and finalpayment, the Ideas shall remain the soleproperty of Agency.”In WrittenAgreements,If PossibleIf Written Agreementis Not Possible, In aFollow-Up Email“Thanks for meeting with us today. Weappreciate the opportunity to pitch ourideas and services to you. Unless anduntil we reach an agreement setting forththe terms of any use of our ideas and/orservices, we retain all ownership rights inthem.”
  6. 6. Copyright Fair Use
  7. 7. Rights of Privacy & Publicity
  8. 8. Rights of Privacy/Publicity
  9. 9. Rights of Publicity
  10. 10. Other Considerations• Is a Celebrity’s Name Registeredas a Trademark?• Person’s Domicile• Reach of Campaign• Does the UseExceed the Scopeof License/Consent?
  11. 11. Trademarks
  12. 12. Trademark Fair UseComparative Advertising
  13. 13. Use of Trademarks asKeywords & Domain Names
  14. 14. User Generated ContentSweepstakes & Contests“Entry must not contain anymaterial or references that violatesor infringes upon a third partysrights, including, but not limited to,privacy, publicity or intellectualproperty rights nor may it in anyway infringe upon a third partyscopyright or trademark rights”
  15. 15. • Infringement, Right of Publicity & Defamation Claims• Legality of Sweepstakes & Contests• Privacy Breaches• Deceptive Ads“Agency agrees to indemnify, defend and hold Client harmless from andagainst any loss, cost, liability or damage (including reasonable attorneys’ feesand costs) resulting from any claim, suit or proceeding (threatened orotherwise) made or brought against Client, for violation of the rights of privacyor publicity, copyright infringement, libel, slander, defamation or plagiarism,that arises from advertising materials created and produced by Agency, whichmaterials are used by Client without modification . . .”Check Your Agreement!Agency Agreement Reps &WarrantiesWho Bears the Burden?
  16. 16. Deceptive AdvertisingEnforcement UpdateEnforcement Authorities Include:-State Attorney Generals-Federal Trade Commission-National Advertising Division, BBB-Federal Communications Commission-Foreign Ad Review Councils
  17. 17. Deceptive AdvertisingWhat’s Hot?• “Green”• “Up To” Claims• Behavioral Marketing• Mobile Marketing• Customer Reviews
  18. 18. Deceptive Advertising
  19. 19. Deceptive AdvertisingWhat’s Hot?• Still Going Strong -– Disclosures of “Material Connections”for Bloggers, Social Media, etc.– Nutrition, Weight Loss & Health Claims– Celebrity Endorsements
  20. 20. Alicia Brown Oliver(423) 757-0206aoliver@cbslawfirm.comQuestions
  21. 21. This presentation is provided with the understanding that thepresenter is not rendering legal advice or services. Laws areconstantly changing, and each federal law, state law, and regulationshould be checked by legal counsel for the most current version.We make no claims, promises, or guarantees about the accuracy,completeness, or adequacy of the information contained in thispresentation. Do not act upon this information without seeking theadvice of an attorney.This outline is intended to be informational. It does not providelegal advice. Neither your attendance nor the presenter answeringa specific audience member question creates an attorney-clientrelationship.Disclaimer22