How to Create Advertising Without Creating Lawsuits

Recently, I've dusted off a column I wrote more than ten years ago. To my surprise, every point is as valid today, and a few new outbreaks have emerged. Throughout twenty-five years of bodies representing advertisers and me? I have seen various clients suffer from the same recurring errors that could have been easily avoided. Due to agencies and advertisers should spend their time creating ads and no defense in court, here are some of the most common legal mistakes, tips on how to avoid and some new wrinkles that are causing headaches for industry . Who owns art? Agencies always buy art and photos of their clients. Sometimes the client believes that the property acquired, but the agency only receives a license. Carefully review your customer and supplier contracts for this costly inconsistency. Tip: copyright ownership can be transferred only in writing, and without effective transfer of copyright, it is likely that the seller owns all right, all you give your client a license. Who owns speculative creative? body or perspective? A presentation pre-contract to clarify the ownership and use rights. But sometimes the specifications of your creative finds its way into the perspective? S ads, even if you haven? He has not hired. You might consider a thank you letter to potential customers to remember that all rights are reserved and that the notice has been registered with the copyright office.Problem: Today, many advertisers are demanding that the agencies agree the release of all rights prior to participating, sometimes for a nominal fee. Agencies need to stand up for themselves, but advertisers are fearful that a presentation may be similar to another and result in accusations.Indemnification. An agency often takes his client? S product claims at face value and includes them in the copy. Then, a competitor or government charges of misleading advertising. A careful examination of customer? S claims is an independent foundation and must sometimes is a necessity. An agency should require a written contract with a customer to provide compensation if the agency gets in trouble because of something that the client has provided but this is often another source of litigation.Tip: Compensation is a two way street . The advertiser must substantiate that it is solely responsible for all the information it provides in connection with its services and products and the agency must justify that it has not violated anyone? s rights in the creation of the ads.Why can? not to use her face in my ad? Years ago, Herbal Concepts got into problems when using the naked posteriors of a mother and her daughter in an ad for shampoo. The faces were they? Is not shown, but the husband? S friends who swore under oath acknowledged the woman. The rule is that everyone has the right to operate or preserve the value of their identity. Any chance of recognition in an ad, either by post or alias, creates a cause of action. In New York is a violation crime.Tip: Always obtain and preserve its written consent to use the picture and only use them in a manner consistent with the permit. Take a break, have a laughWho? S responsible for the means of payment? The agency is an independent contractor or an agent of its principal (the advertiser). If an independent contractor, the agency will always be responsible for the media that puts it? Sa part of the contract. If an agent, the agency contracts with the media on behalf of his client. For an agency relationship existed, the client must be able to control the body and approve or disapprove their actions. In the case of New York, the court recognized the customer? s responsibility to the media as a general rule, but declined to identify the customer responsible for the media because it is aware of the agency? s financial problems, but hid them from the advertiser, which continued to pay the agency.Tip: An agency must always express the principal and agent relationship in their contract, and that sellers know in writing. The client must be careful that it appoints as its agent. Can your ad using his mark? Trademark rights are jealously saved, but an owner of a trademark does not have a monopoly on its use. Fair comparisons between products are two good reasons to use the competitor? s brand in an advertisement. Sometimes an advertiser to use another? s brand to boost the image of their product by association. Such use creates a serious risk because the owner may claim that there is an appearance of sponsorship, affiliation or approval. An advertiser should never rely on a disclaimer to eliminate what it is to organize the confusion about the sponsorship, support or affiliation.Tip: When participating in comparative advertising, dust off your liability insurance. An agency? s comprehensive general liability policy does not offer? negligence? coverage. Even if an insurance policy on advertising there, comparative advertising can be excluded. Click fraud: A magazine was accused of lying about distributing its ad to boost ratings. The new version of this is to click fraud, and can come from many sources. Advertisers pay search engines each time a prospect clicks on their ad or web page. 10% to 20% of these clicks, to 40 cents to $ 3.00. per se is not legitimate. They come from competitors and organized groups, some based in China that use the automated devices. Tip: Monitor and be suspicious activity pattern. For example, a click is 1.8 second. Employing technology to monitor the activity, and complain that the search engine if you suspect fraud.This list is not exhaustive, but it is ironic that many of the same problems that existed ten years ago exist today.
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