When launching any type of marketing, advertisers should be on the lookout for potential Intellectual Property (“IP”)  claims, in addition to potential exposure based on advertising-related laws.  This is often referred to as “IP Rights Clearance.”  Some of our previous blog posts have discussed various lawsuits and court decisions that underscore the importance of IP Rights Clearance in your sales and marketing activities.  Below is a non-exhaustive list of some practical tips we recommend as a starting point as you develop your own guidelines for IP Rights Clearance:

  • Build IP legal review into your release schedule so that (1) IP clearance lawyers have time to clear the publication and (2) if they raise issues, you have time to fix it.
  • Educate your Sales, Marketing, Publication, and Creative teams about IP rights clearance issues. Create a set of internal clearance guidelines.  Have an internal protocol that you can point to in the event of litigation and allegations of willful infringement (which can include “reckless disregard” for the IP rights of a third party).
  • Run all agreements by Legal that relate to third parties who create content for, or license to, your project.
  • Have a checklist of issues for your internal clients as to what they will need for each component or piece of third-party content, in questionnaire form. This prompts them in the initial creation stage and then can be submitted with the request for Legal to do to the pre-release review.
  • Have media or advertising insurance, as applicable (general insurance policies do not necessarily cover all IP or advertising claims).
  • Insurers commonly expect legal review prior to release. Check whether you should be sending your advertisements and other projects for review and clearance.
  • Keep a physical binder or electronic file folder with each agreement, etc. relating to the specific advertisement for good record keeping.
  • Attach the photo at issue to the license agreement or model release for record keeping purposes. You may (1) need it for evidence later or (2) the agreement may permit you to make other uses of certain third-party content so you need to be able to go back and match the desired photo with its license to confirm rights if you wish to re-use the particular photo.
  • Traditional IP laws still generally apply in the social media setting even though it is very easy to move quickly and overlook IP rights clearance issues in the social media context.
  • Obtain copyright licenses for third-party content. In the event you do not have one, seek fair use analyses from experienced copyright counsel.
  • Obtain likeness releases, in writing, for the particular purpose you plan to use the individual’s likeness. If you do not have a likeness release, seek advice of experienced counsel as to whether you need one, or your level of exposure if you proceed without one.
  • If you wish to retweet celebrity comments about your company’s product or service, or otherwise engage with a celebrity, but do not have an endorsement deal with the celebrity, contact experienced counsel for advice because this can be dangerous terrain for the unwary.
  • Before retweeting or sharing content, check platform rules for the platform; when in doubt, ask for permission, or ask legal counsel for advice.
  • Be familiar with the DMCA Notice and Takedown provision. Have a properly drafted policy, file your designation of agent with the U.S. Copyright Office and follow the provisions of section 512 of the DMCA is you receive a properly issued take-down notice.
  • Do not assume that just because you have “a” stock photo license, you are set. Scope!  Read the Terms!
  • If using a stock photo, track the number of copies of product that photo or other content is used in if you did not purchase unlimited rights.
  • Beware of “editorial use only” photos.
  • Make sure you are properly licensing music, particularly major label music (you generally need to obtain a license from both the rights holder(s) of the musical composition and the rights holder of the sound recording).
  • Search and clear trademarks before use. Coined, arbitrary, fanciful trademarks are strongest.
  • File trademark applications federally ASAP, even often before you launch your new product name, if possible.
  • File foreign trademark applications, if applicable, because in many countries, rights are based on the first to file an application in the particular country.
  • Do not use trademarks of others without running specific use by Legal.

IP Rights Clearance is an important component in your sales and marketing.  And there have been some notable cases recently that underscore just how important this is.  We hope that this provides some helpful tips as a starting point as you develop your own IP Rights Clearance Guidelines internally.