This article is part of the Visual Revolution Summit interview series. Learn more about the Summit here.

Marketing is evolving and happening at a breakneck pace, and many marketers are feeling unclear around the legalities of all their interactions and rights. As a Partner in Davis & Gilbert LLP, Vejay Lalla has counseled agencies and brands on navigating the world of social media in terms of rights and privacy. We interviewed Vejay to better understand what all brands need to keep in mind when it comes to engaging and co-creating with consumers.

Q: Marketers are being told to include their fans in their storytelling – letting them take part in the creation process either through inspiration or content contribution. Are there any liabilities for brands embracing this trend?
A: There are certain risks inherent in a brand’s engagement with user-generated content (UGC). The laws, rules, and intellectual property rights considerations that apply to traditional advertising also apply in social media and to uses of UGC, but with certain guardrails in place, brands can successfully incorporate UGC into their campaigns and use it as part of their storytelling. While it’s always a best practice (and in many states, a legal requirement) to get binding, written consent from any consumer whose content a brand will use, many brands are incorporating UGC into their campaigns by asking consumers to include a unique branded hashtag in their posts. It is likely a lower risk that a consumer will bring a claim against a brand where the consumer itself decides to take part in a campaign but the legal risks still remain.

One area where brands should be more careful is the elevated risk with respect to use of high-profile sporting and entertainment events, like the Oscars or the Super Bowl. Though consumers are eager to have social conversations about these cultural occasions, and brands want to leverage that enthusiasm, these are the types of third party rights that are actively protected precisely because they are so relevant. We at D&G have developed specific live tweeting guidelines for our agencies and brands to think about before engaging in the conversation.

Q: This past year, we saw actress Katherine Heigl attempt to sue Duane Reade for the use of her photo in a tweet. Do you think we’ll see more suits like this?
A: I wouldn’t be surprised if we see more suits like Katherine Heigl’s in the future, but we’ll also see many examples of celebrities playing along with brands that engage them in social media – take Pharrell Williams’ response to Arby’s Tweet about his hat at the Grammys. State right of publicity and false endorsement laws prohibit identifying an individual in a use for a commercial purpose, such as a marketing campaign, without permission. It is generally a higher risk area, legally speaking, to use celebrity names, images, social media handles, and quotations as a result, especially if the celebrity hasn’t engaged with the brand in the first place. Katherine Heigl is a great example of this. But if a celebrity has commented on a brand or product or otherwise invoked a response from the brand’s social media account, it likely is lower risk to communicate in response to, and using the name or likeness of, the celebrity. The Old Spice video responses to celebrities who tweeted at the Old Spice character is a great example of how this could work.

Q: How can brands prevent something like this from happening to them?
A: Brands should look at a number of factors that may impact the practical risk in each situation – for example, how aggressive a given celebrity is, or how strong the implied endorsement may be. When in doubt about how a celebrity would react, it’s always best to seek permission first from the endorser. We have seen many more claims from celebrities than consumers in this regard.

Vejay will be presenting during the Your Brand is Their Brand section at VRS on November 5th, providing insights on the legalities around all the new changes in evolutions in marketingRequest your invite today!

About The Author

Monica is a book hoarder and gets overexcited about community-driven marketing. She lives in New York City and dreams of a day when a landlord will let her have a cat.

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