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Advertising law: art director liability?

By: Julia Ptasznik

Julia Ptasznik is an honors graduate (BFA) and a faculty member of the Advertising/Graphic Design department of the New York, USA-based Fashion Institute of Technology. She has written and presently teaches a course on Professional Practices to upper-class design students. In addition to being the editor of Visual Arts Trends, Julia is a freelance consultant specializing in marketing strategy development, copywriting and graphic design. Her portfolio includes work for companies and organizations such as the United Nations, Buick, Bertolli USA, Sprint PCS, The Fragrance Foundation and Domino's Pizza. Prior to starting her own business, Julia has worked on both client and agency sides, most recently as director of communications of an international trading firm, Atwood Richards Inc., which has offices in 32 countries. Her previous experience includes working on design projects for the U.S.Open Tennis Tournament, well-known apparel industry brands such as Bonjour, and varied toy packaging accounts. Contact: editor@visualartstrends.com

With offices in New York and London, Visual Arts Trends is an international quarterly "state of the industry" report for the creative professional Focusing on graphic design, advertising art direction, photography and illustration, each report offers a brief, business-oriented, definitive and timely overview of industry developments that affect aesthetics, pricing, salaries, working conditions and client relations. Visual Arts Trends combines unique proprietary research with material gathered by monitoring hundreds of publications, companies, membership organizations, online sources, and other relevant sources of information. The reports review and analyzes professional trends by business category and by specialization. In addition, each report profiles "hot" client industries interviews with senior executives of leading companies and organizations. An annual subscription retails for US$29.99 and includes four reports available for download as PDF files. Visual Arts Trends is a trademark of and is published by Colonial Communications Corp. Contact: info@visualartstrends.com

With every passing day, the number of advertising-related law suits increases. While it is difficult to give a global perspective of the numbers, the NY, USA-based law firm of Hall Dickler Kent Friedman & Wood handles about 40 cases based on intellectual property, false advertising, and trademark infringement claims each year. And thatís just one firm, granted that it is based in one of the biggest advertising cities in the world. You do the math.

We talked to Mr. Peter D. Raymond, the head of the Litigation Department of the Hall Dickler, and here is the bottom line. Advertising art directors, just like designers, photographers, and illustrators, tend to be only marginally aware of the legal issues affecting what they do for a living. Now, consider this. According to Mr. Raymond, the art director is always a potential defendant in an advertising-related lawsuit. Today, such suits are no longer as cut-and-dry as one claim being made against one individual or company. Claims can be based not only on the actual content of an ad or a TV commercial, but also on its design, general look and feel, etc., making the designer or art director just as liable as his or her client.

As such, visual artists need to be aware of the most common potential causes of ad-related law suits. Apart from direct copyright infringement (i.e., use of an image, words, music, etc. whose copyright is purportedly not owned by the advertiser), with which most visual artists are intimately familiar, Mr. Raymond suggests that if you get sued over your advertising, the claim or claims made against you are likely to be based on one or more of the following theories of liability. And we promise to spare you the legalese.

False advertising; deceptive advertising (i.e., express or implied false claims in a comparative advertisement; inducing consumers to purchase the advertised product through false statements; respectively). These days, there is a big trend among advertisers to run print and TV ads in which they claim that their product or service is better than that of their direct competitor for one reason or another. The problem, however, is that many of such claims are not adequately supported by statistical research or consumer perception surveys, thus making the statements false, and, consequently, making the advertiser vulnerable to a law suit.

One could argue that art directors are not responsible for the core message, rather for its visual execution. However, Mr. Raymond, once presented with a false advertising claim, often asks: "How did this happen? How did someone along the advertising chain not realize that this ad had something so obviously false as part of its concept?" He suggests that the art director, being one of the individuals responsible for getting advertising to market, should be aware of such issues and be able to do something about them, thus preventing his or her client from making a serious mistake. 

Trademark dilution; trademark infringement (i.e., disparagement, blurring or alteration of a competitor¹s "famous" trademark; use of a competitorís trademark in a manner likely to cause consumers to be confused as to the advertised productís source or origin; respectively). This issue is even more directly related to design and art direction, and prevention is almost entirely in the hands of the artist executing the assignment. As a case in point, Mr. Raymond cites an instance in which someone created a T-shirt in the proprietary Coca-Cola typeface, where the wording was actually changed to "Cocaine." It looked like the famous symbol and created the impression that Coca-Cola was somehow endorsing drug use. How did the designer not object to that?

Infringement of the Right of Privacy/Publicity (i.e., use of the plaintiffís name or likeness without permission, either directly or by use of a "look-alike" or "sound-alike"). This one is a bit tricky, as many people remain under the impression that celebrities give up their right to privacy just by virtue of being a celebrity. However, Mr. Raymond explains that this only applies to news reporting, and not the commercial use of a celebrity name or likeness in advertising.

One example involves a TV commercial for Timex watches. In this humorous spot, a tall, dark, and lanky fellow is brought into a lab-type room by a couple of guys wearing white coats. He sits down next to a table and starts concentrating. The camera then pans to the table, and everything on it, including a Timex watch, a fork, and a spoon, starts shaking. The fork, spoon and watch bend; the entire table flips overÖ and here comes the famous newsman John Cameron Swayzeís payoff line: "It takes a licking and keeps on ticking." Incidentally, the spot has won a Cleo. But here is where the story gets really interesting. According to Mr. Raymond, a fellow named Uri Geller, an Israeli psychic known in the seventies and eighties for allegedly bending utensils with his mind, sues, claiming that the spot not only uses a look-alike, but that it also copies his "act." Mr. Raymond, representing the defendant, takes Mr. Gellerís deposition, marking a fork as an exhibit and asking the plaintiff to bend it, which he refuses to do. In the end, Mr. Raymondís client has won the suit on summary judgment; however, Mr. Geller has made some interesting claims in the process, such as the one that he owned the intellectual property rights to the "act" itself.

There have been lots of other advertising law suits brought on claims of using look-alikes or sound-alikes. While suits based on using look-alikes are relatively straightforward, the definition keeps expanding. For instance, Bette Midler has won a big case on the grounds of the advertiser using a sound-alike. Such cases tend to be much more difficult to prove or disprove, as they are very subjective. However, Ms. Midler has had irrefutable proof; she has demonstrated that the advertiser has asked her to do the commercial prior to going with the sound-alike. The aforementioned Uri Geller has pushed the definition of infringement even further, saying that the mere similarity of the act portrayed would make people think he sponsored the Timex commercial. From the advertiserís point of view, some of these creative tactics may be caused by trying to get out of the enormous celebrity endorsement fees. However, as evidenced by the myriad of law suits, such tactics have a tendency to backfire. So, art directors, beware. The prospect of being named as one of the defendants in such a law suit is not very enticing.

An article written by Mr. Raymond ("Damage Control: What To Do If You Do Get Sued Over Advertising"), prepared as a handout for the attendees of a recent seminar, "Aggressive Advertising and the Law," is presently posted at ADLAW.com, the portion of the Hall Dickler website that functions as a virtual library on the subject of advertising, marketing, and promotion law. Read it if youíd like to know what remedies are available in case you, your company, or your client are faced with a law suit such as the ones described above. But remember: prevention is a much better solution than litigation.

Afterword: International law resources
In addition to the ADLAW website mentioned in the above article, we wanted to provide those of you who are interested in further edification on the topic with additional resources.

If you are looking for a law firm in your area, check out The World Law Guide. It is a comprehensive international list of firms, categorized by country. If youíd like to know more about advertising liability, check out the site of the London, UK-based firm Tim Carswell Solicitors. Its principal areas of activity involve advertising, including agency agreements, copy clearance and regulatory issues, and intellectual property, and there are two very informative articles posted on this law firmís site: "Plagiarism or pure Genius?" and "Comparative Advertising ó guidelines." Finally, if you want to see not only an informative, but an incredibly well-designed site, visit Avocats Associés (ASA), a firm operating in the cities of Strasbourg and Paris. Its site is available to readers in French, English and Dutch, and one of the firmís areas of expertise is in patents, trademarks, copyright, designs and models.

First published by www.VisualArtsTrends.com

© Copyright 2000, Visual Arts Trends

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