Branding

Co-Branding Your Film or Product Launch - Getty Images and FOX join forces

02-25-15 © UnfinishedBusiness_StarStock

02-25-15 © UnfinishedBusiness_StarStock

When you relate to a film, TV show or product, you are more likely to buy the item and recommend the product. In a great twist on marketing, Twentieth Century Fox has teamed up with Getty images to launch a line of stock photo images featuring the characters from the new film Unfinished Business. And, the photos are free to use for editorial purposes.

In the ramp-up to the film's launch, it may be hard to measure the return on investment of the "free" publicity from this co-branding relationship. The stock images are showing up all over the press as the initial 4 of 12 photos have been posted.

In any co-branding or marketing agreement, make sure to spell out what each party is required to pay for and who owns any intellectual property.

Fox seems to be taking a co-branding and marketing tip from Paramount in their marketing for Anchorman 2 in 2013.  In 2013, the Anchorman 2 marketing machine made deals to takeover the MSN and Huff Post websites as well as creating a user generated content social media frenzy.

How do you know what brand is the right fit for co-branding and helping to launch your new product or service? For an unknown or new brand, you have to know and understand the value you bring to the table before seeking out co-branding opportunities. Think local. Maybe there's a perfect relationship between a new restaurant and local micro-brewery. Consider what your consumers like to do, where they go, what they eat. If you can't reel in the big national fish, there's a good chance building a marketing relationship with a local business might just be the place to start.

In any co-branding or marketing agreement, make sure to spell out what each party is required to pay for and who owns any intellectual property that might be created as part of the relationship. Each side should be diligent in making sure their trademarks are properly and consistently used.

Vince Vaughn may not be your next spokesperson, but keep an eye out for a natural business relationship in your area.


Top 2014 Entertainment, Trademark & Copyright Law Blog Posts

createprotect - current-trends-ip-entertainment-law-blog-top-posts-2014


Endorsement Deals and FTC Compliance

A famous athlete has thousands of followers on Twitter and is well-known as a spokesperson for a particular product. Does he have to disclose that he’s being paid every time he tweets about the product?

Actors, athletes, models, musicians are usually thrilled when an endorsement deal is finalized. They might receive free products, cash upfront or even cash for every tweet that mentions a product. It's rumored Kim Kardashian receives $10,000 a tweet for certain brands she endorses.

In drafting and implementing talent and/or brand endorsement deals, it's important both the brand and talent comply with Federal Trade Commission (FTC) Revised Endorsement Guidelines. 

The revised Endorsement Guidelines reflect three basic truth-in-advertising principles:

  • Endorsements must be truthful and not misleading;
  • If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances; and
  • If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed.

Talent, to protect their integrity, should always use their best efforts to disclose their endorsers. That disclosure becomes tricky in 140 characters on Twitter. If followers understand the talent is being paid to endorse a product, then no disclosure is necessary. What if a significant number of followers don’t know? In that case, a disclosure would be needed. Determining whether followers are aware of a relationship could be tricky in many cases, so a disclosure is recommended.

Also, talent should investigate any product claims before they endorse a product. In 2014 the FTC cracked down on Sensa, L'Occtaine and HCG Diet Direct for deceptive advertising claims. Talent would regret associating with a product or service that runs afoul of the FTC.

Remember, you don't have to be rock-star or pro-athlete to be subject to the Endorsement Guidelines -   bloggers and affiliate marketers must also comply.

Texas media and entertainment lawyer Tamera Bennett can answer questions on endorsement deals and FTC compliance.


Who Controls Your Likeness? Balancing Right of Publicity and Free Speech

Originally Published in TEXAS LAWYER*

Tamera H. Bennett

Tamera H. Bennett

Sharing photos has never been easier. From checking out Ellen Degeneres' selfies at the Oscars to uploading family vacation pictures, even lawyers don't always think through how third parties might use their likenesses. But two pending court cases might change that.

Imagine that a photographer allows an engaged couple to post engagement photos online. Then, a political mailer features—without the couple's permission—a photo of them kissing, superimposed on a new background with the prominent text "State Sen. [XYZ]'s idea of 'family values'?" It happens during a heated primary race where gay marriage is a hot button topic, the mailers oppose same-sex marriage, and the newly engaged people are two gay men.

Or, imagine someone learning via Facebook that a full-color, quarter-page advertisement used her likeness and included the statements: "I am positive (+)," "I have rights," and "People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights?" By the way, the woman doesn't have HIV and didn't authorize use of her likeness.

Both fact patterns are the subjects of current litigation, with the plaintiffs bringing causes of action for misappropriation of the right of publicity and/or privacy.

Colorado common law governing torts for appropriation of name or likeness controls the political mailer case. The law requires a plaintiff to prove that: the defendant used the plaintiff's name or likeness; the use was for the defendant's own purposes or benefit, commercially or otherwise; the plaintiff suffered damages; and the defendant caused the damages.

Colorado Law

In a March 31 opinion in Hill v. Public Advocate of the United States, the U.S. District Court for the District of Colorado granted the defendants' motions to dismiss in relevant part; the defendants are all political advocates. The Hill court stated, "[A] plaintiff will not prevail on [an appropriation claim] if a 'defendant's use of the plaintiff's name and likeness is privileged under the First Amendment.'" But the use of the name and likeness must occur in the context of, and reasonably relate to, a publication concerning a matter that is newsworthy or of legitimate public concern.

The court found that the men's images were used without permission, but the use was not commercial. The use communicated a matter of legitimate public concern and did not issue a call to purchase a product or service. The mailers were sent before an election in a year when gay marriage was a campaign issue. The mailers also went out before Colorado lawmakers enacted the Colorado Civil Union Law, which grants same-sex couples the right to enter into a civil union.

The district court determined that the use of the gentlemen's likeness reasonably related to a matter of legitimate public concern: same-sex marriage. The court's balancing act weighed heavily in favor of free speech based upon the timeliness of the mailers. In the end, the First Amendment trumped the individual right of publicity.

New York Law

Let's revisit the HIV awareness campaign issue. According to the complaint filed on Sept. 18, 2013, in Nolan v. Getty Images (US) Inc., Avril Nolan alleged that a photographer took her picture years ago for an unrelated project. Nolan never signed a release or license with the photographer to use the picture. Subsequently, the photographer licensed the photo to Getty, a worldwide commercial supplier of images. Getty licensed Nolan's picture to the New York State Division of Human Rights to place in the AIDS awareness "I am positive(+)" campaign.

In the March 6 New York trial court opinion, the court stated that New York does not recognize the common law misappropriation torts of privacy or publicity. Instead, the rights and cause of action are statutory. Under New York Civil Right Law §50, an entity "that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person … is guilty of a misdemeanor."

The trial court denied Getty's motion to dismiss for failure to state a cause of action on March 6. The court found Getty's action—placing Nolan's image on its website for viewing by potential licensees—met the statutory requirement of "use" within the state.

Questions to Consider

It's unclear to me how Getty's alleged actions violate §50. But what if Nolan had sued the New York State Division of Human Rights? In that scenario, the Colorado federal court's reasoning in Hill might provide insight. Arguably, the HIV awareness campaign communicated a matter of legitimate public concern, so free speech might trump the right of publicity or privacy.

I wonder if, in either case, it would make a difference if the individuals pictured in the likeness allegedly used without authorization had been famous. Would a "commercial nature" begin to arise if it looked as if a famous athlete or actor was opposing gay marriage or supporting HIV awareness? While the tort of misappropriation applies to people who aren't famous, the scales balancing First Amendment and right of publicity might tip differently if the likeness used is well-known.

These cases should remind lawyers to think twice—and perhaps a third time—before posting that next selfie. You just don't know where it might end up.

Tamera H. Bennett is a trademark, copyright and entertainment attorney and mediator practicing law in Texas and Tennessee as president at Bennett Law Office in Lewisville.

*Reprinted with permission from the April 14, 2014 print edition of Texas Lawyer. © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.  Read more: http://www.texaslawyer.com/id=1202650390510/Who-Controls-Your-Likeness%3F-Balancing-Right-of-Publicity-and-Free-Speech#ixzz2zdHbeUxd

Kind Sues Cliff For Trade Dress Infringement

Currently Cliff Bar & Company packages their MOJO bar with a half-moon transparent opening.

The proposed new packaging for the MOJO bar has a transparent cover separated by a non-transparent stripe. Kind says the change in packaging is just too close and consumers will be confused.

Click here for a visual of the transformation of MOJO packaging.

Trade dress for product packing and product design may be registered with the U.S. Patent and Trademark Office. Famous trade dress includes the design of the COKE bottle and the "Golden Arches" of McDonald's.

Venom v. Venom in the Trademark World

NIKE, Inc. might end up in a choke hold in its trademark infringement battle against mixed martial arts clothing brand VENOM. NIKE has used the trademark VENOM for athletic equipment and apparel since 2002.  And, NIKE has a U.S. trademark registration issued in 2003 for softball bats. NIKE claims common law trademark rights for apparel.

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Defendant,  Dragon Bleu SARL, a French company, has a U.S. trademark registration issued in 2011 for VENUM with a snake design for "Martial arts and boxing clothes, namely, martial arts uniforms, shorts, kimonos; Sport shoes, especially for the practice of martial arts."

And, the venom is spewing in Federal District Court in Oregon as well as France.  Dragon Bleu SARL filed suit in France alleging the NIKE brand of HYPERVENOM is an infringement of the Dragon Bleu brand VENOM.  NIKE responded with the suit in Oregon for trademark infringement, false designation of origin and cancellation of the VENOM with design mark.

Link to the complaint.

Ambush Marketing - Sochi Olympics 2014

Ambush marketing, the act of a product or service trying to attach itself to a big event without being an official sponsor of the event, is alive and well surrounding the Sochi Olympic Games.

Here's a round-up of news stories worth a read:

American Apparel Strikes Marketing Gold - The company released a line of "Principle 6" clothing which includes a variation of language from the Olympic Charter.

Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.

The Canadian Olympic Committee thinks a LaBatt beer commercial featuring a large Budweiser blimp designed to look like a hockey goal light, along with scenes of fans in Moscow, is a little too close.  While Budweiser has an affiliation with the US Olympic Committee, LaBatt Brewing Company is not a sponsor for the Canadian Olympic Team.

And, more from the Canadians, they Canadian Olympic Committee sued outerwear/cold weather brand NORTH FACE for launching a line of clothing in Red/White featuring the maple leaf and referring to the clothing line as the "international collection" ready for "village wear."

Samsung, an official sponsor of the Sochi Games, gave the athletes a Galaxy Note 3. But, there was another "note" included in the gift bag saying cover up logos on any other phone you might be using.  Samsung, like the other 10 official sponsors of the Winter Games, does not want their competitors' trademarks on display.

Hells Angels Sue Dillard's and Rapper Clothing Line for Trademark Infringement

Hells Angel Trademark
8732 Trademark

The Hells Angels Motorcycle Club's distinctive brand identifier of the winged skull logo called the "Death Head," in use by the club since 1948, is the driving force behind a trademark lawsuit against 8732 Apparel, LLC and Dillards, Inc.  8732 is owned by rapper Young Jeezy.

The test for trademark infringement is likelihood of consumer confusion regarding the source of the product.  The first part of the test determines the similarity of the marks.  Removing my trademark lawyer cap and simply looking at these jackets as a consumer: I'm confused.  Even without going through all the steps of the likelihood of confusion test, it looks like HAMC should have a winner.

What do you think?

Link to complaint at www.jdsupra.com.

New Recording Artist Checklist: What Every Artist Should Think About

Dallas-based music lawyer Tamera Bennett co-presented with music attorney Joe Stallone at the Dallas edition of Grammy GPS on the topic "Legal Considerations for Every Aspiring Artist." 

Assembling Your Team 

When do you need a manager, an entertainment attorney, a financial manager, publicist?

Get it in writing -- Now

Protecting Your Most Valuable Assets: Trademark, Copyright, Right of Publicity

Trademark

Copyright

  • US Copyright Office
    • There is a copyright in a musical composition; and
    • A copyright in the sound recording of a musical composition.
    • Copyright arises the moment an original works is fixed into a tangible medium of expression.
    • Who will own the songs?  All the members of the band?  Just the members that wrote the songs?
    • Who will own the sound recordings?  The band?  The business entity formed by the band?
    • Will you form a music publishing company?
    • What performance rights organization will the songwriter's join ( BMI, ASCAP or SESAC ) for collection of public performance royalties of the songs?
    • Has the artist, band, producer, label joined Sound Exchange for collection of digital performance royalties?

Right of Publicity

Separate and apart from the band name and the songs/hits of the band, the band members each have an individual "right of publicity" in their persona.  Who controls that right? The band? The manager?  This is a state law right.  In Texas the right arises under common law, but is descendable by statute.

Paying For Stardom - Financing Your Career

Texas Music Office

  • The link to the Texas Music Office will provide you a wealth of guidance on getting started in the music business.  The information is not Texas-specific.

Suggested Books to Read

This post contains affiliate links. That means if you click a link I may receive a benefit.

Texas Grammy GPS: Music Business Professional Development

The Texas Chapter of the Grammy Organization is hosting "Grammy GPS" in Dallas, Texas on Monday, November 1, 2010. RSVP

GRAMMY® GPS: A Roadmap for Today’s Music Biz

Monday, November 1

Workshops 10:30 a.m. – 4:30 p.m.

Trammell & Margaret Crow Asian Art Museum (2010 Flora Street, Dallas, TX 75201)

Join fellow music makers for a professional development event designed to inform musicians and industry professionals about today’s ever-changing music industry. Enjoy networking and camaraderie during the mixer immediately following the event.

Workshops Include:

Legal Considerations For Every Aspiring Artist with Texas Music Attorneys Tamera H. Bennett and Joseph Stallone

Lunch With Chuck Rainey and moderated by Bob Parr

Booking and Touring Trends with Kris Youmans

Brave New World: Music In The E-marketplace with Aaron Sainz, Jessica Bailis and Theda Sandiford.

Networking Mixer:

4:30 – 6:30 p.m.

The Screen Door

1722 Routh Street, Dallas, TX 75201

Admission (includes lunch):

Members $25

GRAMMY U $25

Non-members $75

Parking is available at the Trammell Crow Center for $3.

RSVP BY THURSDAY, OCTOBER 28

SPACE IS LIMITED

A GRAMMY professional development event

Entertainment Law Update Podcast Episode 14

headphones
headphones

Dallas Music Lawyer Tamera H. Bennett and Los Angeles  Theater Lawyer Gordon P. Firemark discussed Mockumentaries, Downloads, Licenses, and First Sale issues in Episode 14 of the Entertainment Law Update Podcast. If you are a licensed California attorney, CLE credit hours are available.  In most other states, listening to the podcast will qualify for "self-study" cle hours.

Social Media Marketing Workshop In North Texas

Women Business Owners of North Texas is hosting a Social Media Marketing Workshop on Wednesday, September 14 from 11 am to 2:30 pm at The Pourhouse Sport Grill located at 3350 Unicorn Lake Blvd., Denton, Texas. Click here to RSVP.

11:00 - Registration

11:15 - Session One: The Real World of Social Networking for a Small Business

In this session, we'll explore

  • The best social media tools and the advantages of using them
  • Being consistent, yet unique - defining your brand and carrying it across the channels

12:00 - Lunch and Panel Discussion

During the panel discussion, we'll answer audience questions as well as questions submitted through our survey.

12:45 - Session Two: Blogging and Microblogging

In this session, we'll explore

  • Setting up a WordPress blog
  • What blogging is and what blogging is not
  • 10 things to consider when blogging- structure, content, etc.
  • Microblogging, a quick definition

1:30 - Break

1:45 - Session Three: Making it work in the Real World

In this session, we'll explore

  • Time management
  • Tools for using your social media tools effectively

Our goal is to help those in attendance get answers to their questions and increase their level of knowledge about such topics as blogging, Twitter, Facebook and LinkedIn. What should you participate in and why? How do you go about doing it?

Plan to be with us and invite anyone you know who may be interested in joining us for this extended meeting event. And the good news is that we are offering the workshop at the regular luncheon cost: $15 for members and $20 for guests with timely reservations.

RSVP by Thursday, September 9th, for a timely reservation. After that date, add $5 to the meeting cost, i.e. $20 for members and $25 for guests.

Speakers

Tamera H.  Bennett, Bennett Law Office, PC

Louellen Coker, Content Solutions

Kristy Nolan, Southwest Airlines

Heather Steele, Blue Steele Solutions