Mini Law LessonBiggest Myths in Digital Marketing

(and how to combat them)

Brian Heidelberger bheidelb@winston.com

Twitter @briheidelbergerInfo @ www.winston.com/bheidelberger

IMPORTANT DISCLAIMER

• I am not your attorney.• This is not legal advice.

2

Myth #1:Its On the Internet So We Can Use It

• Internet ≠ public domain • Creative material = legally

protected• Right clicking ≠ major

advertising

3

Myth #2: We Can Just Change It 30%

• Its dangerous to start with someone else’s creative work

• There’s no set percentage• Have you created an entirely

different aesthetic where only the idea is the same

5

Myth #3: We’ll Pull It If We Get Caught• Pulling = no ad to run• Pulling = new costs

creative/production• Pulling = = angry boss/client• Pulling ≠ the end

6

Myth #4: They Do It On Saturday Night Live

• TV, Movies and Books = strong First Amendment protection• Advertising = weaker First

Amendment protection

7

Myth #5:We’re In the Clear Because We

Got It Past the TV Networks, Client, Our Lawyers

• Network clearance ≠ legal clearance • Client clearance ≠ Client

responsbility• Lawyer clearance ≠ no risk

8

9

Tip #1:Run it By Legal First

• Avoid the embarrassment and anger caused when the idea is killed after being sold to client• Come up with a creative solve

before it becomes a problem

10

Lawyer’s Can Help – They Aren’t Evil

11

Tip #2:Only the Idea Should be the

Same, Not the Expression

• Ideas ≠ protectable• Creative Expression = Is Protectable• Make sure the expressive elements

of your execution are unique

12

Tip #3: Consider Ignoring the Prior Tip• Anyone can sue anyone for anything• Are they extremely litigious?• Do they have a big investment to

protect• Are you/the client a “deep pockets”

target?• Being “right” may come at a big cost

14

Tip #4:Don’t Reference Your Points of

Inspiration• “Sounds like Gangham Style”• “Looks just like Justin Bieber”• “A Superman story”

15

Tip #5: Ask for Permission When All Else

Fails• Getting permission is possible • But ….

You are on their timeline You are on their financial budget You are subject to their creative

whims• If they say no, it gets really risky

16

Follow me on Twitter

@BriHeidelberger

17

More Mini Law Lessons?

YouTube.com/AdAgeOR

YouTube.com/BrianHeidelberger

18