What questions should you ask about your advertising and labels before making them public?

Beverage producers should take a lesson from the recent media hullabaloo over Hearst Communications’ loss for publishing a photograph of President Trump at a wedding; what the court in the case called “[s]tealing a copyrighted photograph to illustrate a news article.” The direct lesson there is that just because someone publishes something to social media doesn’t mean you get to re-use it for your commercial purposes.

But the broader lesson to take away from it is that copyright and trademark principles apply to all your advertising, be it print (labels, posters, packaging), online (twitter, facebook, your website), tv, or radio. Understanding ownership, use, and having a responsible vetting/clearance process is vital to controlling and producing issue free content.

Here are some items to be keen on when vetting your adverts, packaging, and posts/releases:

  • Have you created or obtained the permission to use the text and images? – Did an employee make them? Did an independent party make them under a work for hire agreement? Where did they come from and do you have an agreement in place, if it’s not an,employee that gives you the rights/ownership?
  • Are there people in the content? Is someone being quoted or identified – even a casual tagging or mentioning triggers the need for review. If so, is the quote a quote, is it a person you paid (has that been disclosed (employees too!))? Have you gotten permission from the person to reference them and present the opinion/endorsement?
  • Are you making claims about the product? Are they substantiated? Are any terms you’re using the kind that require substantiation (“number one”; “free from defects”; “contains X”; “highest X”; “improved”; “made in USA”; “made in Hawaii”; “64 calories”; etc.).
  • Are any disclaimers, warnings, or other statements necessary? Have you made statements, guarantees, or depictions (like something that’s a size that’s not the actual size) that requires clarification or notation?
  • Have you compared yourself to others or mentioned others’ products? Are those comparisons true? Are statements about others accurate? Do they run afoul of any guidelines like a prohibition on disparaging another’s products (27 U.S.C. §205(e)(4)) or showing the flag, etc.?
  • Have you properly denoted your trademarks with the right notations – ™, ℠, or ®? Have your marks been registered or has an intent to use been applied for? Have you obtained copyright on your copy or other advertising content? Is that noted? Are you using others’ trademarks or copyright? With permission? If not, is it fair use?

Asking all these questions is part of clearance/vetting, and the advice to consider these and other issues is well taken as exposing your business to liability through ignorance of advertising laws isn’t a defense.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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