What must agencies be aware of when using testimonials in advertisements?

January 03rd, 2018

Many companies want the support of famous personalities for their brands. The most current example of a celebrity in an advertisement is the new Vodafone Giga TV commercial with a testimonial from Daniel Craig. To get a heavyweight for your advertisement requires having great contacts with their management. Celebrities are so popular because they humanize a product or service and can give a campaign real emotional appeal. The testimonial needs to be emotive and convey a high level of credibility and authenticity. These positive attributes are transferred to the brand.

However, the effort can backfire, if the credibility of the celebrity is tarnished if they’re involved in a scandal, photographed drunk or seen publicly in other negative ways. Then the positive effect is replaced by a negative one and the brand suffers as a consequence. Along with added legal complexities, here are some major points to ensure your rights clearance is done right.

Early involvement of experts

Creative teams often have ideas for campaigns in which they’d like to include certain testimonials. The problem: the client is often presented with ideas that can’t be realised because the celebrities aren’t available, don’t allow certain things or have other commitments that are contrary to the idea.

An example: A designer wants to create an advertisement using Albert Einstein. Einstein is generally used in campaigns to impart the attribute “very intelligent”, “creative intelligence” or “genius” to a product or service. However, if the designer wants to change something, such as his hairstyle, then they have to discard it as this particular copyright holder doesn’t allow it.

More serious is a celebrity used in a company’s advertisement without being asked. This was the case with an American Apparel advertisement- an image of Woody Allen was used without his consent having been granted. It led to a claim for damages and ended up costing the American company 5 million dollars. If, when planning the campaign, they had consulted an expert on third party rights, the claim for damages wouldn’t have arisen, nor the resulting damage to the image of American Apparel. An expert would have pointed out the third-party rights and obtained them for the company.

If the copyright holder approves a certain campaign idea, it’s a question of the cost of the third-party rights, which depend among other things on criteria such as the type of media it will appear in, the temporal and spatial terms and the circulation. The costs are generally negotiated by service providers and laid down in contractual form. It is advisable to include the cost of third party rights in the budget from the outset.

Timing is also important. You must include a buffer in the overall schedule for the campaign. Creative releases are often a protracted process, particularly when the copyright holder expresses a desire for changes to the layout or creative idea.

Quotations, symbols, emblems

Not only celebrities are protected, but also landmarks, symbols such as the Olympic rings or quotations.

It often happens that companies unthinkingly use the Olympic rings for example in their advertisements - And then they are surprised when they receive a hefty fine. There are also perils with using buildings, such as contemporary architecture or emblems in advertisements.

So, during the day the Eiffel tower is considered to be in public domain, free property. However, if you want to make commercial use of a night time photo of the Eiffel Tower you must pay license fees due to the light artist who illuminates the Eiffel tower at night, effectively making the Eiffel tower a work of art. The amount of the financial fee is a matter for negotiation and depends on the usage parameters.

Sensitive subjects must be clarified

Alongside all the named subjects that involve third party rights, so-called sensitive subjects play an important role. These include, for example, advertisements for alcohol, politics, erotica, pharmaceuticals and betting.

A past advertising campaign for a painkiller manufacturer wanted to use famous sportsmen. All the sportsmen approached declined to participate. Another example concerns alcohol advertising: a company wanted to include a famous actor in their campaign for an alcoholic drink. However, the wife of the actor had previously been an alcoholic. The actor was outraged and rejected the offer.

A specialist would have provided the insight and suggested another actor. This illustrates how important it is to hold prior consultations with experts on rights clearance and celebrities. The service provider is then able to offer advice at a very early stage in the process of developing ideas. Without this consultation, the agency or client can put a lot of time and energy into a project that is from the outset unrealisable.

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