Legally creative (or why creative agencies should incorporate legal planning)

This article first appeared in the first issue of the New Media Journal which you can view in iPaper (care of Scribd) here.

There is a marked disconnect between creative agencies and lawyers which could spell doom for agencies’ clients. To put it plainly, creative agencies develop and implement innovative campaigns without taking into account the legal considerations and, in the process, place their clients at unnecessary risk.

While this sounds fairly alarmist, recent events have revealed just how risky marketing campaigns can be in the absence of adequate and appropriate legal guidance. You are probably aware of the controversy over a version of Facebook’s terms of use recently. Without going into the matter in great detail (I published a more detailed post here), Facebook published a new terms of use which bound all Facebook users, personal and business alike, by virtue of their continued use of the service. The revised terms of use included a broader license than the one that appeared previously and, unlike the previous version, the overly broad license persisted even after the users account was terminated.

One of the reasons the license was too broad was that Facebook sought to exercise an “irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license” over not just content uploaded to its service directly but also to any content Facebook users linked to from within Facebook or using a “Share” button or link on external websites to share content from those websites in Facebook. This formulation presented a number of difficulties ranging from Facebook’s efforts to take a license over content the person sharing the content had no right to give (typical in the case of third party content shared on Facebook) to a total disregard for the license (or lack thereof) applied to the content in the first place before it entered Facebook’s ecosystem. The irrevocable and perpetual nature of the license only aggravated the matter.

What does this mean for businesses? Well, for starters creative agencies that develop marketing social media marketing campaigns frequently point out Facebook’s tremendous potential as a platform for part or the whole of the campaign. They are not wrong. Facebook can provide access to a receptive and engaged audience for a business’ brand but how a business makes use of Facebook should be carefully planned. Often a Facebook campaign involves making content or services available through an advertisement on the site or a Facebook Page which fans would join and (hopefully) use to engage more directly with the brand and the business behind it. It is a very appealing opportunity on paper but what agencies rarely include in their planning is provision for the licensing implications for their clients’ content posted to the site.

Not only does Facebook take a particularly broad license over a business’ content posted to the site (the license permits commercial use of the content in addition to what I have quoted above) but provisions dealing with shared content potentially bring a business’ content within the license’s scope where the a user shares content on an external website with other users on Facebook. An example of this is where a “fan” links to the company’s website from its Facebook Page, finds an interesting blog post or video and, using a “Share” link or bookmarklet (usually through a web browser), shares that content with other Facebook users. At first blush this is precisely what a Facebook campaign may be intended to achieve. On a closer look it becomes apparent that by sharing that content with other Facebook users, that shared content becomes subject to Facebook’s license, irrespective of the company’s wishes. If the company publishes a “Share” link on its own website with the intention that users share its content on Facebook then it is similarly bound to license its content to Facebook under the same license.

It is important to note that with all this attention on Facebook’s terms of use, it isn’t just Facebook that has terms of use with these implications. Facebook, itself, reverted back to a previous set of terms of use after a public outcry online but its current terms of use don’t address all the concerns about the previous set, particularly the licensing concerns. A number of other platforms have similar broad licenses but factors which distinguish some of those services from Facebook include a user’s ability to remove content from the service and revoke the license in the process as well as a materially narrower license over user content which grants just sufficient rights to enable the service to continue to operate effectively. Overall, though, almost all of these services publish terms of use and even privacy policies that can have profound implications for a business’ content.

I’m not arguing against using these services as part of a marketing campaign. These services can be tremendously powerful marketing tools. What I am suggesting is that agencies and their clients should involve lawyers when they plan a campaign as well as when they execute it to ensure that the legal concerns that apply to the particular platform are highlighted and catered for. The relevant terms of use bind the user when the user registers, indicates agreement to the terms and uses the service. It is far too late to read the terms of use in the middle of a campaign, the damage will have been done. As the saying goes, prevention is better than the cure so insist that your agency incorporates appropriate legal planning before launching your campaign.

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