By Jen King
April 28, 2014 Luxury Daily - NEW YORK – When negotiating for branded entertainment, product placement or viral campaigns, it is important for a luxury brand’s legal counsel to manage marketers’ expectations while balancing the risk, a panel of in-house lawyers suggested April 24 at the Cardozo School of Law’s Semi-Annual Fashion Law Symposium.
Although on the surface entertainment content, sponsorships and public relations strategies that involve intellectual properties such as film, television, music and celebrity personalities may seem straightforward, there are contractual issues that must be considered. The panelists discussed the legalese of promoting intellectual property such as with jeweler Tiffany & Co.’s capsule collection for Baz Luhrmann’s adaptation of “The Great Gatsby” and subsequent promotions.
“This was a very important, substantial and successful deal for [Tiffany & Co.],” said Ewa Abrams, intellectual property counsel at Tiffany & Co., New York.
“[The Great Gatsby capsule collection was] one of Tiffany’s largest deals [and] was an opportunity for marketing and PR to leverage a small budget,” she said. “The output was an investment and was hopefully returned through sale of merchandise and promotional materials with Warner Bros. Studios.
“We look at if [the partnership] is a good fit, if it sounds like a great opportunity [and then] I coach our PR and marketing team to understand the tenor of the film and the product itself.”
Placing products
During the panel, Ms. Abrams discussed how Tiffany’s legal team worked with its PR department and marketers closely to create The Great Gatsby partnership while aiming to minimize the risk that jeweler would undergo if anything went sour.
In the case of the Great Gatsby, the end result of the campaign was known, since F. Scott Fitzgerald’s work is one of the most well-known books in American history. For new films or promotional initiatives that are created in-house, the risk is significantly different.
Tiffany’s marketers and legal team also worked closely with Warner Bros. Studios to understand the content’s direction. Tiffany’s drafted contractual arrangements to provide exclusivity in the product category, billing as the jewelry provider in the film, the use of tag lines in branded promotions and advertisements as well as imagery with actress Carey Mulligan who starred in the film.
The campaign then began emerging on various platforms.
For instance, Tiffany pushed its 1920s’-inspired jewelry lines through advertisements on The New York Times’ desktop and mobile sites on the day that Mr. Luhrmann’s The Great Gatsby hit theaters.
While sites such as YouTube and Yahoo! opened with video ads for the film, the New York Times’ desktop site May 10 presented an oversized banner ad with videos of items from Tiffany’s Jazz Age collections. That same day, the jeweler took out a static banner ad on the news outlet’s mobile site that linked to an optimized page where consumers could purchase items from its Ziegfeld Collection (see story).
By including these clauses in its contract with Warner Bros., Tiffany was able to weave a network of promotional activities.
One instance of this is the guarantee that the movie’s talent walked down the red carpet wearing Tiffany jeweler. This allowed for an endorsement that was quickly picked up, for free, by the press.
Ms. Abrams stressed the importance of “understand[ing] the studio’s relationship with the talent.”
“You don’t want to be in the position to create engagement but cannot use the promotional materials,” she said. “[Brands] need to add in rights with the talent to use their photos.
“Make sure you have those rights pre-negotiated with the studio.”
What about digital promotions?
The digital space has altered how branded promotions are handled. Now, many marketers are under the impression that anything digital can survive indefinitely, but it is common that a studio will want content removed when the promotion contract expires.
Social media is an exception where content. Ms. Abrams sees social promotions as a “snapshot in time, it will get buried but the promotion still happened” and will not negatively affect the studio or talent in the future when in contractual negotiations with a competitor.
“The best way to think about the viral promotions,” said Geri Lynn Elias, vice president and intellectual property counsel at Kate Spade & Co., New York, “is a mark on a brand’s timeline, that isn’t used for marketing purposes but rather to highlight the evolution of a brand.”
Also, the panelists agreed that during a brand-talent relationship, or when a promotional contract comes to an end, the terms can become murky. Brands must consider that these ambassadors are people and may be seen wearing a competitor, either personally purchased or gifted by brand or loved one.
For instance, a breach of contact can occur when a marketer uses a photograph of a celebrity wearing its products and that individual is under contract with another brand.
Though many brands have celebrity sighting sites, there is a spectrum that must be considered before going forward.
The right side, according to Ms. Abrams is implicit consent through gifting suites or lent products, while the opposite end is infringement, meaning the celebrity received a personal gift, was photographed and the brand uses that image for its own benefit and then the middle ground is more ambiguous and includes posting to a celebrity “people and parties”-type page.
Clearly, it is advisable to veer toward the right side of the spectrum.
“For [Tiffany], exclusiveness is important,” Ms. Abrams said. “We don’t want celebrities wearing competitors on the red carpet.
“What would cause reputational harm is important to consider,” she said.