Events, Productions and Promotions: Media Buying Beyond IAB 3.0
The AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less Version 3.0 remain the standard governing terms in the media industry fourteen years after their initial release (although a Task Force of industry members, including Justine Gottshall on the ILG team, are hard at work on much needed updates). Throughout this time, the advertising opportunities offered by media companies continue to expand beyond traditional digital media placements. This is especially true with the rise of retail media networks that offer advertisers the unique opportunity to advertise in the physical locations where their products are sold, using tactics that integrate seamlessly with retail media networks’ digital media placements.
The IAB’s standard representations, warranties and indemnification are generally limited to responsibility for ad materials and ad subject matter, and data collection and use obligations. As a result, once you move beyond digital media, standard IAB terms are often insufficient, and advertisers and media companies alike need to consider what contractual terms will govern those expanded media offerings.
As an initial step, talk to your marketing teams about the scope of their media buys and the process for buying media and agreeing to governing terms (e.g. on a one-off IO basis, part of a yearly spend commitment, etc.). Ask to see media plans and any supporting decks or materials to make sure you have a clear understanding of the media deliverables at issue. Ensure additional terms include a clear delineation of the parties’ respective responsibilities, and additional representations, warranties and indemnification obligations tailored to those responsibilities. Examples of common deliverables beyond traditional digital media include events or other physical programs, branded content, and promotions. Let’s consider each of these in turn.
Media companies may offer advertisers the opportunity to participate in events or other programs with an in-person or physical component. This may include offering product samples and using brand ambassadors. If an advertiser has certain brand protection requirements or expectations for how product samples are handled and administered, ensure those are appropriately memorialized. With brand ambassadors, for example, consider who is responsible for the actions of the brand ambassadors and whether background checks will be required. Insurance is not addressed in the standard IAB terms so determine what coverages are needed for in-person events.
Branded content creation may be a component of an integrated media buy that can include deliverables such as advertorial sponsored content or product integrations into video productions. Governing terms should address the specifics of the content creation and its intended use. For example, terms governing video productions should contemplate talent considerations, including any applicable union obligations. Advertorial content creation should address the FTC’s native advertising disclosure obligations, accounting for how and where the content will be used by the parties.
Promotions such as sweepstakes and contests offer a way to build on digital media campaigns to directly engage consumers and have numerous compliance obligations that can be allocated between the parties. For example, a media company may offer to sponsor a sweepstakes advertised to its users that gives away an advertiser’s product as a prize. There, it may be appropriate for the media company to take responsibility for sponsoring the sweepstakes, including sweepstakes administration and development of the legally required official rules, while the advertiser will have an obligation to provide the advertised prize.
Finally, don’t overlook value-added services that are provided at no additional cost to an advertiser. They may take the form of traditional media services such as reporting and analytics, may consist of offerings beyond media placements such as promotions and events as noted above, and aren’t always captured in an IO. Learn the details of upcoming media plans from your marketing teams and don’t forget to account for value-adds when reviewing and aligning on governing terms between the media company and advertiser.
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.