Post on 06-Oct-2020
Celebrities, Endorsements & Testimonials
The Basics
•Background
•Contractual Considerations
•Getting Clients to Care
Background – Consider…
Background
•FTC Requirements
•Changing Industry
•Changing Risk
Contractual Considerations
•Key Provisions
•Potential Review by FTC
•Monitoring
•Disclosing
Getting Clients to Care
•Bad Press
•Competitors
“What if?”
Part 1
Your client has this great picture – let’s post it to Facebook!
What if?
I don’t know you… I’m just reading my
book…
What if?
…and I just love my Nike shirt, don’t
you?!
Don’t look at me –those aren’t my rug-
rats!!
What if?
What if?
Absolutely not! Go home and do your
homework!
What if?
What if?
Absolutely not! Go home and do your
homework!
What if?
What if?
Absolutely not! Go home and do your
homework!
What if?
<Sigh> Kids!!
“What if?”
Scene 2
Client’s drink brand
Agency employee
Let’s post it to the client’s
Instagram page!
What if….
What if….
What if….
Employee posts to own Instagram page?
What if….
Agency posts to client’s social feed?
What if….
Agency posts to its own social feed?
Forget the car…
What if….
Agency posts to thisInstagram page from client’s account?
What if…. Surprise! There’s music!!
How Do I “Like” Thee?
Let Me Count the Ways (I Can Get in Trouble)
“Better three hours too soon than a minute
too late.”#LoveFedEx
#AlwaysOnTime
Hypothetical
• Do we need/ have the proper support for statements about our products?
• Do we need a disclaimer, if so is it prominent?
• Do we need special rights/ permissions to use the content/ statement?
Questions
DM+C sent Kim a basket of free products hoping that she would endorse it… what precautions should have been taken?
What if ….
This is an organic post, not motivated by any material connection, can DM+C re-tweet this? Can they reply? Can they share it on other sites?
Repeating or Responding to Shout-OutsRisk Level – Consumers v Celebs
Enthusiasm ≠ Consent
Reposting?
Risk of…
Replying?
…unless clearly directed at brand
…unless clearly directed at brand
Reposting?
Risk of…
Replying?
Possible request for gift from brand
Reposting?
Risk of…
Replying?
Questions about brand
Reposting?
Risk of…
Replying?
Questions about brand
You claim = we claim?
Is it “love or advertising”?
Possible disclosures?
“I’m proud to be a spokesperson for X Brand”
“Thanks, Brand X, for the gift!! #ad, #sponsored”
“Check out my new ad campaign with X Brand”
“Come behind the scenes on my new campaign for X Brand”
Other hashtags: #partner, #client, etc.
A few examples…
Katherine Heigl vs. Duane Reade (2014)
WHAT HAPPENED: Duane Reade Tweeted a paparazzi photo of Heigl leaving a Duane Reade store carrying two Duane Reade shopping bags.
THE OUTCOME: Heigl sued for $6MM., alleging unauthorized use of her name and likeness in violation of Heigl’s right of privacy and publicity under NY law and false endorsement under the Lanham Act. Confidential settlement and Tweet takedown.
Arby’s and Pharrell (2014)
JUST GUESSING: Maybe Pharrell thinks that consumers would not believe that he’d endorsed Arby’s. Tweet simultaneous with event. No sell message.
RELEVANT? Arby’s subsequently bought Pharrell’s hat at auction and gave proceeds to charity.
QUESTION: Why did Arby’s Tweet about Pharrell notresult in public legal action?
Selena Gomez & the Taco Cake (2013)
WHAT HAPPENED: Gomez Tweeted “My cake was … Jack [‘n’] the [B]ox tacos …:” with link to Instagram photo. Jack In the Box wanted to capitalize on positive references to its brand and product.
ISSUE: Gomez controls copyright in photo and the right of publicity in her likeness. Instagram prohibits reposting ‘Grams. Need permission from the other people in the photo.
THE OUTCOME: Jack In the Box did not re-gram the photo, and responded using only Gomez’s registered and regularly used handle — @selenagomez.
NOTE: Responding to a celebrity’s post in this manner is still risky.
Questions??