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Advertising, Marketing & Promotions Alert >> Branded Entertainment, Product Placement and Viral Technology

May 21, 2014

How are fashion and beauty brands partnering with film, television and music businesses and personalities to engage consumers and enhance their brands?  And how can advertising companies balance the legal risks against the brand’s demands to be culturally relevant and widely talked about?

Panelists Ewa Abrams (Associate General Counsel & Chief Privacy Officer of Tiffany & Co.), Geri Lynn Elias (Vice President & Intellectual Property Counsel of Kate Spade & Company), and Marguerite Hill (Vice President and Legal Counsel of Rue La La) addressed these issues at the Cardozo Law School Fashion Law Symposium: “The Latest in Brand Marketing and Legal Compliance,” in a panel titled “Branded Entertainment, Product Placement and Virtual Technology,” moderated by Davis & Gilbert partner James L. Johnston.

Considerations of the Deal
Successfully negotiating branded entertainment deals requires balancing both legal and business needs.  The business issues may range from a limited budget and urgent deadlines to ensuring a good fit with the brand and the talent’s image.  As for legal matters, exclusivity and the scope of rights must be addressed.  

As fashion brands expand their portfolios, the potential for conflicts is ever greater.  A fashion brand must consider each of its lines of business – apparel, accessories, footwear, jewelry, timepieces, eyewear, skin care, fragrance, cosmetics, hair care and more – to ensure that the brand’s investment is protected.  The trend to digital media also expands the scope of these types of deals to not only include the exchange of cash for celebrity affiliation, but also access to an expanded audience for enhanced coverage of movie launches, including email lists, reels highlighting the actresses’ wardrobes, Facebook posts, and style blogs.

Creative control and approvals remain an important issue as well, particularly for brands that want to engage their consumers through social media.  Customary approval windows are insufficient for social media.  Since it would be impractical to obtain approvals for these platforms in a timely manner, legal counsel should aim to secure rights to post first and permit talent or the studios to object later. 

Finally, morals and termination rights are also key issues.  With every aspect of celebrity lives in the public consciousness, any misstep poses the risk of damaging the brand.  An appropriately drafted morals clause provides the brand with a way to exit the relationship and limit its exposure.  Each brand must consider its own risk tolerance as well as the kinds of risky or risqué activity it is willing to tolerate.  

Regulatory Concerns
Regulatory concerns are a significant consideration in structuring and implementing any branded entertainment program.  Brands have more opportunities than ever to connect with consumers in a wider variety of media and platforms.  This variety heightens the risk that consumers may not even be aware that the content they are enjoying is marketing content.  Say, for example, a brand provides free product samples to talent and suggests that he/she tweet about their use of that free product.  Or a brand has an integrated promotional partnership with a studio for a movie and the studio asks its stars to tweet about the brand’s presence at the premiere party.  FTC Endorsement Guidelines require these communications include a disclosure of that material relationship.  Brands are required to monitor and ensure that talent, influencer bloggers, studios, networks, producers or any other third party who received compensation or free products, whether directly from the brand or indirectly through an intermediary, makes these disclosures.


The Bottom Line

When working on branded entertainment deals, legal counsel should be aware of key legal provisions such as exclusivity, creative control and termination rights, as well as regulatory concerns, as they balance these issues against the business demands.