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SBJ/March 31-April 6, 2014/Opinion
Understanding your counsel’s concerns with creative marketing
Published March 31, 2014, Page 15
I recently worked on a creative marketing relationship intended to engage fans through interactive social media content related to a promotional sweepstakes. The platform was somewhat new to both parties, and at times the negotiation got bogged down by questions regarding the logistics of the execution, the structure of the sweepstakes, and the ownership of intellectual property used in the program. Throughout the process, it occurred to me that marketing professionals might appreciate a better understanding of some of the issues raised by creative marketing in order to ensure the smooth documentation and activation of a campaign.
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Apart from law, some social media platforms have their own rules and guidelines for conducting promotions. Facebook’s rules were recently softened to allow easier use of promotions, and while Twitter doesn’t impose rules, it does offer guidelines to curb behavior likely to discourage other participants. Along those lines, official rules should be written to grant the advertiser latitude on enforcement, and advertisers should closely monitor participation for suspicious activity, including the use of multiple accounts and “vote farming,” a coordinated effort to solicit votes online. In 2013, a Boston radio station had to disqualify the winner of a promotion for a meet-and-greet with Taylor Swift after a group coordinated an effort to vote for a middle-aged man who wanted to take photographs of himself smelling the singer’s hair.
■ Social media
Rooney’s Nike tweet ran afoul of British regulators in 2012.
There are also various Federal Trade Commission rules that may apply to social media promotions, including the Guides Concerning the Use of Endorsements and Testimonials in Advertising, which require the disclosure of
The FTC’s loss to Steve Garvey helped lead to changes in
■ Reduced control
Creative activation is generally more difficult to control and can result in accidental ambush marketing or unintended brand associations. For example, Samsung was an official sponsor of this year’s Academy Awards and was reported to have paid specifically for “selfies” during the broadcast (including the infamous group selfie that reportedly broke a record for retweets), but off-camera, host Ellen DeGeneres was tweeting from her iPhone, and each tweet bore the tag “via Twitter for iPhone.”
Hopefully, keeping these issues in mind will help marketing professionals anticipate potential legal concerns as they structure marketing campaigns, keeping attorneys like myself where we belong — far away from creative marketing.
Matt Efird (MEfird@rbh.com) is a corporate attorney at Robinson, Bradshaw & Hinson, P.A. in Charlotte, with a focus on sports and entertainment law, specifically in NASCAR and other motorsports series. The 7th annual The Racing Attorney Conference in Charlotte on April 8-9 (www.racingattorneys.com) will include discussion of legal issues in creative marketing, sponsorship and other areas relating particularly to motorsports.