I had the true pleasure this week of speaking at the Content Marketing World Conference in Cleveland. I was on a panel of lawyers talking about the legal issues surrounding the use of content marketing. My fellow panel members were Cleveland lawyer Mark Avesc:
and Portland Maine attorney Fred Frawley:
Our moderator was recovering attorney Jeff Rohrs:
Kevin Spacey was the Keynote speaker. Which means I can honestly say that “Kevin Spacey and I spoke at the Content Marketing World Conference.” Sounds good, right?
But anyway, I was reminded of a checklist that my colleague Amanda Penick put together some time back. Worth a read if you’re doing any content marketing!
Q: You know what they call a company that adopts a content marketing plan?
A: A publisher.
And that is a more profound riddle than you might think. Because once you’re a publisher, you have a few things to consider. Here’s a quick checklist:
- TRADEMARK – Are you using someone else’s brand or logo? Do you mention another company or its product by name?
While trademark law prevents you from using someone else’s trademarks to sell your competing products, it doesn’t stop you from using the mark to talk about the other company or its products. But beware: you want to be sure that you’re not using their trademarks in a way that might suggest they endorse you, your product, or your CBM piece.
How are you using your own trademarks? Does your company have a policy about the size, font, or color of its trademarks on promotional materials?
Some companies have very specific standards for how their trademarks should be used. Be sure that the way you use the trademark in your CBM piece meets those standards so you don’t risk harming the brand.
- COPYRIGHT –Are you borrowing any content, including quotes, text, video, or art? Cutting and pasting good stuff from the Internet?
Short quotes – and sometimes other words and images – may be fair use, not copyright infringement, so long as you’re using it to comment, criticize, or somehow add to the debate on an item that someone else has posted.
Beyond that, you may expose yourself to copyright infringement claims. Attribution is not always enough. As a publisher, you need to get explicit permission to use someone else’s images or words and other content. Your First Amendment protections can get a little thinner where your speech has any commercial element.
- RIGHT OF PUBLICITY – Are you using a celebrity’s or famous person’s name, photograph, or likeness?
The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without their permission in a way that harmed them, even if it’s only financially from missed endorsement fees. Get permission. Also beware that you can be liable if your use implies a false endorsement.
- PRIVACY – Are you sharing information about specific customers or their experiences using your products or services? When you engage your audience, are you collecting any data from them? Do they know?
If you plan to use customer testimonials, get their permission upfront and in writing.
- DEFAMATION – Do you talk about another company or product? Do you write about the other company or its products in a negative way?
Defamation is the communication of a false statement that is harmful to someone's reputation. Trade libel is defamation against the goods or services of a company or business. For example, saying that products sold by your competitor do not meet government quality control standards (if it isn't true). Make sure your statements are vetted and true.
- FALSE ADVERTISING – Did you pay someone to create the content? Endorse your company or its product? Give them freebies to entice them to write a review? Do you make any claims about how a product works?
The FTC requires you to disclose connections between a company and someone who endorses or write a review of the product if the connection might materially affect the credibility of the endorsement. This could include if the endorser was paid or given free products.
Also, even though your CBM piece might look and feel like an editorial piece, beware of the claims you make about how your company’s product works. Make sure that any claims can be supported with facts – and that they’re not misleading.