The Legal Hot Buttons in Adland...And How to Handle Them

The Legal Hot Buttons in Adland...And How to Handle Them

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  The Legal Hot Buttons: Today’sGoals • Discuss common legal threads that run through client experience • Focus on the value of a preventative, proactive approach • Minimize the involvement of lawyers in your lives! • Create some conversations
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  Disclaimer Technology leads… Businessadapts … Law sweeps up behind.
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  The 5 Top IndustryLegal Hot Buttons 1. Protecting IP in a Business Pitch 2. Using a Virtual/Freelance Workforce 3. The Rights to Completed Work 4. Selecting a Client Brand or Rebrand 5. Using Testimonials or Reviews
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  Legal Hot Button #1 ProtectingIP in a Business Pitch The Business Issue: Constant tension in the pitch/ prospecting process Your best creative foot forward vs. Resources to generate work that may not lead to paying relationship The Legal Hot Buttons: – Who owns the work if the agency doesn’t get hired? – What happens if the work gets implemented by someone else?
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  Legal Hot Button #1Protecting IP in a Business Pitch: Prevention THE HARSH TRUTH: NOBODY OWNS IDEAS! Option 1: Get a confidentiality/rights ownership agreement in place pre-pitch – Make the provisions mutual Option 2: Forego the agreement and assume risk with open eyes
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  Legal Hot Button #1Protecting IP in a Business Pitch: Prevention Alternative Prevention. … Use copyright law. - Express as much of your work in written form as possible (storyboards, memos, concept pieces, detailed proposals) - Put rights ownership language in all proposals - Use copyright notices on all work product (pre-engagement)
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  Legal Hot Button #1Protecting IP in a Business Pitch: Prevention Further Consideration: Negotiate ownership in advance. – Doesn’t make agency whole, but puts everyone on same page – An increasing trend in industry
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  Legal Hot Button #1Protecting IP in a Business Pitch: Reaction Determine end goal before you pursue a remedy. – Arrange a rights transfer/license arrangement – Pursue legal claims for: • Contract breach • IP misappropriation
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  Legal Hot Button #2 Usinga Virtual/Freelance Workforce The Business Issue: Balancing the workload or need for expert resources by using virtual or freelance contractors The Legal Hot Buttons: - Originality of Work - Client Confidentiality - Work Rights Ownership - Restrictive Covenants - Insurance Coverage
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  Legal Hot Button #2 Usinga Virtual/Freelance Workforce: Prevention PUT IT IN WRITING PUT IT IN WRITING PUT IT IN WRITING….. No handshake arrangements with freelancers/creative vendors/strategic partners!
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  Legal Hot Button #2 Usinga Virtual/Freelance Workforce: Prevention Critical Contract Provisions: – Transfer of all IP and work rights – Warranty of work originality – or a license to use or transfer the work – Confidentiality – Industry or Client Noncompetition and Non-solicitation – Errors and Omissions Insurance Coverage
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  Legal Hot Button #2 Usinga Virtual/Freelance Workforce: Reaction – Get a post-engagement work rights assignment/transfer – Enforce your contract if it’s breached – Make a claim on the errors and omissions insurance policy
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  Legal Hot Button #3 TheRights to Completed Work: The Business Issue: “What issue? We’re fine with our clients owning the work!” The Legal Hot Buttons: – Agency doesn’t actually own rights (See Hot Button #2) – A Payment problem or dispute – Nothing in writing
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  Legal Hot Button #3 TheRights to Completed Work: Prevention – Acquire rights to all 3rd party-produced work in writing • Create an internal process to manage rights to all work in a client project – Include rights transfer language in client contracts • Trigger rights transfer to client on payment • If you aren’t transferring ALL the rights, say so specifically
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  Legal Hot Button #3 TheRights to Completed Work: Reaction – Get a post-completion assignment of rights from freelancers or third-party vendors – In payment disputes between agency and client, intellectual property ownership can be a lever to help resolve the matter – Negotiate broader license if the client’s desired use of work expands post-engagement
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  Legal Hot Button #4 ClientBrand or Rebrand Selection The Business Issue: Traveling too far down the path of brand selection before learning a mark is not available or will not “clear.” – Brand mark availability – Appropriate clearance of mark Domain name availability and/or clean Google® results Trademark Clearance!
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  Legal Hot Button #4 ClientBrand or Rebrand Selection: Prevention Begin the trademark search/clearance process as early as possible • Consider screening several alternatives simultaneously to save time Start the trademark registration process immediately after selection/clearance • Intent-to-use registration process allows you to apply while you’re implementing the mark
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  Legal Hot Button #4 ClientBrand or Rebrand Selection: Prevention Try to steer away from the following: – Marks that are very descriptive/generic – Marks that are likely to cause confusion with others
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  Legal Hot Button #4 ClientBrand or Rebrand Selection: Reaction If client’s intended mark does not clear (after adoption): – distinguish it (by industry/product/service) – modify it with graphics or language – acquire it
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  Legal Hot Button #5 Using Testimonialsand Reviews The Business Issue: Testimonials and reviews offer credibility for client and/or the product or service. The Legal Hot Buttons: Using testimonials in the following scenarios creates legal implications (for client and agency): - Network marketing - Product review placements - Facebook “like” incentives
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  Legal Hot Button #5 Using Testimonialsand Reviews: Prevention – FTC testimonial rule updates require: transparency and disclosure – Have a written policy of disclosure with blogger network members, affiliates, promotion partners, anyone who receives consideration for mentioning your product – Have affiliates acknowledge the policy in writing and monitor compliance – Require disclosure and transparency from your affiliates • They need a prominent policy and must disclose it to consumers
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  Legal Hot Button #5 Using Testimonialsand Reviews: Reaction FTC and regulators still interested in industry self-policing, only if they see strong enforcement – Correct violations when you learn about them – Terminate affiliates who don’t comply with policy
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  Recent Legal Developments/ Trends New TopLevel Domains – Trademark implications for brandholders: - Ton more real estate to monitor and protect on Internet – Trademark lawyers are hoping ICANN cautious about releasing new TLDs too quickly
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  Recent Legal Developments/ Trends Pinterest® &Copyright Infringement – Every “repin” is a potential copyright infringement • Jury out on whether image owners care in many cases – Stakes higher in a commercial context • Where you disrupt commercial market for an image – Don’t “repin” in a commercial context without permission
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  Recent Legal Developments/ Trends Ownership of“Social Contact” Data Who owns: – Twitter handles that include brand names – Twitter followers, LinkedIn links or Facebook fans
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  Recent Legal Developments/ Trends The Riseof Patent “Trolls” - Creates liability questions for agencies - Contract provisions need to address the patent liability issue
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  Recent Legal Developments/ Trends Taxation ofAdvertising -Increasing pressure to eliminate tax deductability of advertising -States looking at sales taxation of advertising services to raise revenue
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  Recent Legal Developments/ Trends Data andPrivacy -Regulators increasingly concern about use of big data and privacy issues -One to watch especially with vulnerable audiences or in highly regulated industries
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  Legal Hot Buttons: Questions?
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  Top Legal Hot Buttons: Questions? ThankYou!!!!!! Reach me at: E-mail: Sharon@legalandcreative.com Phone: 216.573.6000 Twitter: @SharonToerek LinkedIn: http://www.linkedin.com/in/sharontoerek Blog: www.LegalandCreative.com