Most PR firms are expanding their content creation services at an unprecedented rate. They are increasingly focused on creative brand storytelling across numerous paid, earned, and owned media platforms. These transformations are occurring so quickly that many agencies have not fully trained their account teams about the legal issues that arise in providing creative services and, specifically, in content creation.
With this in mind, allow me to present the following marketing law checklist. It has been crafted to serve as an ongoing training tool and resource for PR professionals.
COPYRIGHT – CONCEPT
•Is the underlying idea or theme of the work independently conceived?
•Where, when, how, and by whom was the creative concept for this work created?
•Does the work copy, derive, or evoke elements from other sources?
COPYRIGHT – MUSIC
•Is the music entirely original and independently created?
•Who owns the composition (music, lyrics, and arrangement)?
•Who owns the sound recording?
•Has written permission been secured from all performers (vocals and instrumentals)?
COPYRIGHT – TEXT
•Is the text entirely original and independently created?
•Does the text incorporate quotes or excerpts from any third-party authored material?
COPYRIGHT – ILLUSTRATIONS, PHOTOGRAPHS, AND FILM FOOTAGE
•Are the visual elements of the work entirely original and independently created?
•Was any third-party material, including stock art, used (incorporated or used as a reference) in creating a comp for the work?
•Was any third-party material, including stock art, used (incorporated or used as a reference) in creating the final version of the work? Was that third party material licensed? If so, what are the terms of that license?
•Do the visual elements derive from or evoke any other elements?
•Does anything appear in the visual elements of the work that may have independent legal protection or in which a third party might claim rights (e.g., brand-name props, artwork, images of identifiable persons)?
•Are there any fictitious brand names, logos, taglines, product designs, architectural works, or business names used?
•Have trademark searches been conducted to determine if these brand names are available for use?
•Are there any real brand names, logos, taglines, product designs, architectural works, business names, etc. used in the work (other than the client’s trademarks)?
•Does the work make any express or implicit suggestion that the advertised product or service is associated with the third-party brand?
PUBLICITY AND PRIVACY RIGHTS
•Are the names or nicknames of any real or fictitious persons (living or dead) used in the work?
•Are any photographs, pieces of footage, or illustrations of real or fictitious persons (living or dead) used in the work? If so, how identifiable are those persons from the depictions (e.g., headshot, crowd shot)?
•Are any voices, signatures, catch phrases, uniform numbers, or other traits that identify a unique individual (real or fictitious, living or dead) used in the work?
•Has written permission been secured for all real persons (living or dead) whose identities are conjured up by the work?
•Is the statement a representation of fact or is it an opinion that implies knowledge of facts (for which prior substantiation is required)?
•Does the statement state or imply that a test, survey, or other scientific measurement was conducted?
•Does the statement make explicit or implicit reference to one or more competitors?
ENDORSEMENTS AND TESTIMONIALS
•Does the work contain a statement from a consumer (actual or implied), celebrity, expert (actual or implied), or organization attesting to the characteristics or benefits of the client’s product or service?
•Does the statement represent that the endorser uses the endorsed product or service? If so, did the endorser use the product or service at the time the endorsement was given and does he or she continue to do so in the present?
•Does the work disclose to consumers, or would consumers ordinarily realize even in the absence of a disclosure, that the endorser was paid in exchange for his or her endorsement or has a material connection to the product or service being endorsed (e.g., he or she is an employee of the manufacturer of endorsed product or service)?
•Does the work state or suggest that the consumer endorser is an actual consumer when, in fact, the endorser is an actor? If so, does the work disclose in audio and video that the "consumer" is a "paid actor" and not an actual consumer?
•Does the work represent that the endorser is an expert? If so, is the endorser, in fact, a qualified expert in the areas represented?
•Does the website, app, or other service present terms and conditions to users prior to their use of the service? If so, have you complied?
•Does the website or app collect user-generated content? If so, do the terms and conditions contain a notice-and-takedown procedure for the removal of potentially infringing content?
•Is there any monitoring of user-generated content with respect to potentially illegal, infringing, and/or inappropriate content?
This checklist is not designed to replace consultation with experienced legal counsel in specific instances. However, this checklist should help PR pros identify issues that warrant further consideration. It will also reduce risk and, if handled properly, delight your clients.
Michael Lasky is a senior partner at the law firm of Davis & Gilbert LLP, where he heads the PR practice group and co-chairs the litigation department. He can be reached at firstname.lastname@example.org.