Lawyers Litigation and Lawsuits:
Protecting Your Business in a Litigious Society

By Rick Kurnit and Mike Frankfurt, Frankfurt, Garbus, Klein & Selz

One of the keys to reducing the risk of being sued is to make legal review an integral part of the creative process. Dealing with the legal issues up front - before money is spent toward production -- will allow you to take necessary (and often easy and inexpensive) steps to avoid costly and embarrassing situations later on.

Before the creative process begins, make sure that you have a signed contract that clearly defines who is responsible for what. The AICP has a Standard Commercial Production Agreement which provides significant protection of your rights. Agency "standard" agreements impose a great deal of responsibility on the production company. Then, when you are in the planning stages, it is essential that you identify the rights that need to be obtained and who will be responsible for these matters.

Here are some of the big things to look out for:

1. Artwork. Have you obtained the necessary releases for the recognizable artwork that you are using? You may even need releases for the contents of the artwork or for artwork that is only partially visible.
2. Demonstrations. Is the demonstration a true and accurate depiction? Do you have producer's affidavits?
3. Endorsements and testimonials. Have consumer endorsements been obtained before the consumers were told that they would appear in advertising? Have you obtained endorser's certificates? If you are producing a commercial that looks like an endorsement, but isn't, have you determined that the agency and advertiser are aware and responsible?
4. Film footage. Have you obtained a release from the copyright owner? Have you obtained any necessary releases for the contents (e.g., people and music) of the footage? Have you dealt with any applicable union issues?
5. Flags and governmental materials. Does the use of a flag or other governmental materials (e.g., seals, insignias, money, stamps, and monuments) falsely suggest the endorsement or authorization of a governmental entity? Are the materials being used in accordance with applicable law?
6. Locations. Have you obtained location releases? Does the use of a building in the background falsely suggest the endorsement or authorization of the owner or tenants of that building?
7. Look-alikes, sound-alikes and impersonations. Do you have permission from the impersonator? Have you determined whether it is advisable to obtain permission from the person being impersonated as well?
8. Music. Do you have the necessary permissions to use the composition, the master, and the principal performers? Have you dealt with any applicable union issues?
9. Names or likenesses of people. Have you obtained all of the necessary releases?
10. Organization names or insignia. Does the use falsely suggest the endorsement or authorization of a third party? Are any permissions necessary? Are you using trademarks properly?
11. Parodies. Have you determined whether the parody could subject you to a claim of copyright infringement? Are you using the parody to comment on another work? Are you copying only what is necessary? Does the parody falsely suggest the endorsement or authorization of a third party?
12. Photographs. Have you obtained releases both from the owner of the copyright (e.g., the photographer) and from any people pictured? You may need other releases as well, depending on what else is depicted.
13. Props. Do you have the necessary prop releases? Prop releases may be needed or advisable if the use of the prop (e.g., newspapers, books, maps, toys, products, and distinctive clothing or jewelry) could subject you to a claim of copyright infringement or to a claim that the use falsely suggests the endorsement or authorization of a third party.
14. Software and websites. If you are depicting software, a website, or a web browser, have you obtained the necessary releases?
15. Supers. Are the supers clear and conspicuous? Do they comply with applicable law and network guidelines?
16. Quotations. Have you obtained the necessary releases? Are you using a quote that fairly represents the entire work quoted from?
17. Sponsor identification. Has the sponsor been properly identified?
18. Talent. Do you have agreements with all of the talent appearing in the commercial? Have you dealt with any applicable union issues?
19. Titles of movies, books, periodicals, songs, etc. Does the use falsely suggest the endorsement or authorization of the author, producer, singer, etc.?
20. Trademarks and identifiable products. Does the use falsely suggest the endorsement or authorization of the owner/manufacturer? Are you using the products in a disparaging manner? Are you using the trademarks properly?