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.

1. © 2013 Chambliss, Bahner &
Stophel, P.C. All Rights Reserved.
Presented by
Chambliss, Bahner & Stophel, P.C.
Liberty Tower • 605 Chestnut Street, Suite 1700 • Chattanooga, TN 37450
cbslawfirm.com
March 20, 2013
Alicia Brown Oliver
Keeping It Legal
Intellectual Property Issues
in
Advertising

3. • Copyrights: protects creative works, not ideas
• Trademarks: protects words, symbols,
slogans, used to indicate source
• Rights of Privacy/Publicity: protect
appropriation and exploitation of a person’s
name and likeness
• To a lesser extent,
– Patents
– Trade secrets
What IP Rights Are at Issue in
Advertising?

4. Ownership of Creative
“I Paid Someone to Create It; I Own It, Right?”
“Upon completion of the Services and
payment in full from Client to Agency of all
outstanding Invoices, all final Services will
become the exclusive intellectual property of
Client . . .”
Agency Creative Works
Works
“You agree that all creative works prepared by you will be considered
works-made-for-hire and our sole and exclusive property. In the event
that the creative works are not copyrightable subject matter, or for any
reason are deemed not to be works-made-for-hire, then and in such
event, by this agreement you hereby assign all right, title and interest
to said works to us . . .”

5. Ownership of Creative
“It came from the internet; It must be in the
Public Domain, Right?”
All Images are Standard License. Need images
for merchandise or print runs over 250,000?
View Enhanced License Plans.

6. Protecting Pitches
“Agency will present to Client ideas and
concepts for (the “Ideas”) which are outside
the scope of Services, for potential use in
future projects. It is understood that until and
unless the parties reach an agreement setting
forth the terms under which they will mutually
proceed to develop and exploit such Ideas,
including amending the Scope of Work and Fee
Payment Schedule in writing and final
payment, the Ideas shall remain the sole
property of Agency.”
In Written
Agreements,
If Possible
If Written Agreement
is Not Possible, In a
Follow-Up Email
“Thanks for meeting with us today. We
appreciate the opportunity to pitch our
ideas and services to you. Unless and
until we reach an agreement setting forth
the terms of any use of our ideas and/or
services, we retain all ownership rights in
them.”

7. Copyright Fair Use

8. Rights of Privacy & Publicity

9. Rights of Privacy/Publicity

10. Rights of Publicity

11. Other Considerations
• Is a Celebrity’s Name Registered
as a Trademark?
• Person’s Domicile
• Reach of Campaign
• Does the Use
Exceed the Scope
of License/Consent?

12. Trademarks

13. Trademark Fair Use
Comparative Advertising

14. Use of Trademarks as
Keywords & Domain Names

15. User Generated Content
Sweepstakes & Contests
“Entry must not contain any
material or references that violates
or infringes upon a third party's
rights, including, but not limited to,
privacy, publicity or intellectual
property rights nor may it in any
way infringe upon a third party's
copyright or trademark rights”

16. • Infringement, Right of Publicity & Defamation Claims
• Legality of Sweepstakes & Contests
• Privacy Breaches
• Deceptive Ads
“Agency agrees to indemnify, defend and hold Client harmless from and
against any loss, cost, liability or damage (including reasonable attorneys’ fees
and costs) resulting from any claim, suit or proceeding (threatened or
otherwise) made or brought against Client, for violation of the rights of privacy
or publicity, copyright infringement, libel, slander, defamation or plagiarism,
that arises from advertising materials created and produced by Agency, which
materials are used by Client without modification . . .”
Check Your Agreement!
Agency Agreement Reps &
Warranties
Who Bears the Burden?

17. Deceptive Advertising
Enforcement Update
Enforcement Authorities Include:
-State Attorney Generals
-Federal Trade Commission
-National Advertising Division, BBB
-Federal Communications Commission
-Foreign Ad Review Councils

18. Deceptive Advertising
What’s Hot?
• “Green”
• “Up To” Claims
• Behavioral Marketing
• Mobile Marketing
• Customer Reviews

19. Deceptive Advertising

20. Deceptive Advertising
What’s Hot?
• Still Going Strong -
– Disclosures of “Material Connections”
for Bloggers, Social Media, etc.
– Nutrition, Weight Loss & Health Claims
– Celebrity Endorsements

21. Alicia Brown Oliver
(423) 757-0206
aoliver@cbslawfirm.com
Questions

22. This presentation is provided with the understanding that the
presenter is not rendering legal advice or services. Laws are
constantly changing, and each federal law, state law, and regulation
should 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 this
presentation. Do not act upon this information without seeking the
advice of an attorney.
This outline is intended to be informational. It does not provide
legal advice. Neither your attendance nor the presenter answering
a specific audience member question creates an attorney-client
relationship.
Disclaimer
22