Frankfurt, Kurnit, Klein & Selz, P.C. attorneys Brian G. Murphy and Jeffrey A. Greenbaum will discuss the challenges these lawyers face in their presentation at the upcoming Association of National Advertisers annual Marketing Law Conference on Nov. 7-9 in Chicago. Murphy provided a preview of what he and his colleague plan to cover.
Q: What are the most important areas advertising/marketing attorneys need to understand in order to successfully represent their clients?
Advertising/marketing lawyers confront a surprisingly huge variety of legal issues on a daily basis. To help clients avoid infringement claims, you need a strong background in copyright, trademark, right of publicity, defamation and privacy law.
You need to master not only general false advertising law, but also the specific laws and regulations that apply to certain industries such as auto, pharma, financial, telecom, and so many more.
You need to know promotions law regarding sweepstakes, contests, coupons, rewards programs, and cause marketing programs.
Since almost everything is digital, you need to know something about tech and SaS agreements. You also need to be familiar with the collective bargaining agreements with SAG-AFTRA and the other labor unions and industry standards concerning negotiating agreements with performers, production companies, and others.
Q. What role do so-called “morals clauses” play in talent contracts in the current #MeToo era?
Morals clauses are one of the most heavily negotiated provisions in a talent contract. A morals clause gives the brand the ability to terminate the agreement if the celebrity commits an act that falls within the scope of the clause, usually behavior that is criminal or otherwise smacks of “moral turpitude.”
The need for these clauses is obvious: the advertiser is, in large part, paying the celebrity for the use of the celebrity’s good name.
During the negotiations, the celebrity will try to strike the morals clause altogether or, in the alternative, fight for an objective standard that permits termination under only the most egregious of circumstances. By contrast, the advertiser will prefer a broad and flexible standard that covers bad behavior that brings the celebrity into disrepute but falls short of criminality.
Q. What about influencer marketing? How can clients make sure that they are following best practices when working with influencers?
The answer is simple: Have a good contract with the influencer. Of course, the contract should contain a description of the services expected of the influencer, her compensation, approval rights (if applicable) over social posts and other activities undertaken for the brand, and a grant of rights to use her name and likeness.
The contract should also, however, require the influencer to comply with the law, the Federal Trade Commission’s Endorsement Guides, and industry best practices.
Q. Overall, what is the key contribution attorneys can make to help their clients navigate today’s advertising/marketing ecosystem?
We believe that it is the role of an advertising/marketing lawyer to help their clients achieve their creative (and other) objectives with a level of risk calibrated to the particular client and the particular project.
Sometimes lawyers get a bad rap. Jeff and I don’t see the role of lawyers that way. We think that the best marketing/advertising lawyers perform a crucial role in helping the business team identify the risks a particular campaign raises, evaluate the likelihood of the risks materializing, explore options to mitigate the risks, and help the client reach the right conclusion about whether the risks are worth the potential rewards.