With the dramatic increase in substantial copyright litigation recoveries, the costs of intellectual property litigation and upon the often insistence of insurance companies that have to pay for infringements, more and more law firms are engaged in the practice of “Risk Management”. In lay terms this means that litigators are brought in to “teach” ad agencies, advertisers, media outlets and their in house legal counsel how to avoid costly intellectual property claims being made against them by photographers, models, celebrities, illustrators and other creatives. Jack and Ed have conducted such seminars for publications in order to teach the “Best Practices” to use, so they do not get into a position where they get sued.

When infringers, particularly media outlets and medium to large companies, get caught red handed and/or sued, their lawyers love to claim “innocent infringement” – legalese for “we didn’t know this was stealing”. It is our experience that 95% of the time the claim is nonsense because they did know or should have known in no small measure because their attorneys have been taught by insurance companies on how to stay out of trouble.

With the increasing involvement of the FTC and various Attorneys General in a wide assortment of states, advertisers are getting hit with large legal fees and penalties arising out of claims of (among other things) false or deceptive advertising, “Astroturfing” (using fake reviews), failure to disclose that certain endorsers (both celebrity and regular folk) are being compensated for their product “review”. Also using endorsers without written consent in all forms of media including every kind of social media imaginable, violations of Federal and State “decency” acts and liability for tweets, re-tweets, pinning, use on Facebook and/or business Facebook pages. And on and on. The FTC and other regulatory agencies are seeing a problem and are addressing it.

So what do the risk management teams of lawyers teach their clients and their clients’ attorneys to keep them from being sued?  Here are the common topics addressed so that the businesses most likely to violate the IP rights of creatives are not sued.

These are the typical “Best Practices” these client lawyers are passing on to their clients to avoid litigation. Here are some, in no particular order and with some of our own comments added at the end..

1. Due to various state laws regarding the right of publicity and/or privacy, do not use the image of any person without first obtaining and retaining a signed written consent for the specific uses intended. (Well that one seems obvious, but you’d be surprised or shocked that this one has to be told to clients all the time.)

2. Do not use the name, image portrait or likeness of any celebrity without obtaining the written consent of that celebrity regardless of what a stock agency or photographer or ad agency says or represents. (It’s interesting when a client is told it’s OK, but the OK was given verbally and now the celebrity remembers that consent differently, as in “Never happened”.)

3. Do not EVER rely on a “fair use“ defense for the use of a photographic image without a license for use from the creator or authorized agent. Never. (Fair use is used often, and is rarely accurate).

4. Any question as to whether a copyright license AND model/celebrity release must be reviewed and approved by an attorney AFTER an in house review has been conducted by editors and/or photo editors. (Trust your editors, but to be safe best to verify.)

5. Have an in house attorney familiar with the new FTC and state regulations regarding false endorsements, deceptive advertising, to thoroughly review all the company’s paperwork and all their endorsers. (With regulators checking more, best to also check in house more.)

6. If the user of imagery is a non-profit, the due diligence that must be performed before publication of images, ads, native advertising, advertorials and social media uses must be no different than that that of a for profit making company. (Being non-profit doesn’t exempt you or give you a pass when using work. The excuse of “We’re non-profit so you can’t or shouldn’t sue us” doesn’t mean anything legally. Being non-profit is a tax designation, not a business philosophy. Many non-profits generate tons of money and pay their employees extremely well.)

7. Legal cases brought by photographers, models, celebrities and competitors and are won or settled at great cost are reviewed extensively. Also reviewed are cases the FTC has pursued. (Let’s learn from other’s mistakes so we don’t repeat them.)

8. Look to any/all content providers for any misrepresentations or failure to disclose relevant facts which has caused or could cause a lawsuit or claim against the ad agency and/or client for the violation of any copyright, right of publicity or government regulation. (That means – did the photographer/model/model agency/illustrator intentionally or unintentionally misrepresent the rights they were licensing to the user, our client?  In other words, “If the company gets sued, can we also sue the creative for botching the transaction by not being clear or by outright lying?”)

9. Make sure there is indemnification. (Clients get indemnity from ad agencies and vice versa for the breach of any laws, regulations whether it be for copyright or right of publicity, violation of FTC regulations and so on. Photographers, illustrators and other so called “content providers” need the same indemnity to protect themselves from being involved  – even in a minor role – and for any litigation which will inevitably cost more money in attorneys fees than most solo business people can afford. If you don’t understand indemnification or the language in paperwork from the client, talk to a lawyer. We both, Jack and Ed, say that indemnification clauses in purchase orders and contracts are critically important for the health of your business.)

10. Obtain written clearances for use of the trademarks of others, avoid disparaging other brands or products, avoid defamatory language and never use materials from photographers, models or celebrities without appropriate signed, written licenses and/or releases…never. (Fairly clear advice)

11. NEVER assume that regardless of its appearance, any native advertising is going to be treated as “editorial.” (You might fool the public, but the regulators will not be fooled.)

That in a nutshell, is what companies, ad agencies and media outlets are being taught as the best practices to avoid lawsuits. Innocence? Let’s leave the term to newborn babies.