Are You Ready For Some Football (Commercials)?
8 Considerations for Advertisers
by: Mindy Abern
It’s officially football season! College football is underway, and the NFL season kicks off tonight. This also means that it’s the season for some of the best (and most expensive) commercials. A 30-second spot airing during Sunday night football is estimated to cost upwards of $800,000 this season. For brands looking to promote their products, football season is a great opportunity to get in front of millions of viewers, but it takes careful consideration and planning from a legal perspective.
Here is a list of things to consider if you’re a brand looking to advertise this season:
1. Are you working with an agency? In addition to creative strategy, agencies can be helpful in creating a commercial and handling the related paperwork and logistics. It’s important to think about, and document, who will own the ideas and concept of the commercial. See if your agency can handle music licensing, this is a big job. It often requires multiple agreements. Agencies can also find the right talent and help you engage with them. This not only refers to the contract process, but also can include managing talent’s ancillary obligations (e.g., social media posts) and related obligations. Last, but not least, agencies can often perform trademark or other searches that are required (e.g., for a slogan or tagline for a campaign).
2. Are you working with a production company? In addition to filming the commercial, production companies can often secure a studio/location and necessary equipment. Productions companies can also help coordinate logistics like dressing rooms, meals, wardrobe and “glam”, procuring set insurance, etc. Most production companies handle post-production editing and can assist with union obligations such as hiring a set monitor.
3. Where will your ad be shown? Of course, you need to secure your ad space. You can either do this directly with the network or through an agency. Media agencies can be helpful in not only procuring the ad space, but also strategizing ad placement (e.g., how close to half time and category exclusivity). Make sure to review any applicable network ad standards you must follow. Plan whether there will be any other uses of the spot, or its footage/photos/b-roll, after it airs (e.g., social media, billboards, etc.). If so, consider any required contracts or platform terms that apply.
4. Are you engaging talent? If are you using union (e.g., SAG) talent, you may need a paymaster or signatory to assist with adherence to union obligations like paying pension and health benefits. If there will be background talent like dancers or extras, you must obtain rights from them as well (this should be done before the shoot). If any talent have subsequent obligations like posting to their social channels make sure they agree to your influencer guidelines and other legal requirements in their contract. Consider performing background check(s) on talent and featured performers (including review of their social media presence).
5. Allow time. Build in time for negotiations with talent, trademark searches, and legal review. Allow enough time for all parties to review the spot and potentially request revisions. Don’t forget about editing time.
6. Stay generic! Use caution with any team colors, logos, jerseys with famous numbers on them, etc. This includes use of certain protected terminology as well. All content needs legal review to ensure nothing is infringing or may infringe any third-party rights.
7. Craft an inclusive budget. Consider your budget as a whole. Airtime is not the only cost – talent fees, insurance, licensing, union payments, and other costs can all significantly affect your budget.
8. Plan your ad content. What will the content of your commercial be? Will the spot be interactive (e.g., include a QR code or text promotion)? Will there be competitors mentioned or implied in the ad? Will AI be used, and if so, how (e.g. animations, a bot based on the commercial actor/character that interacts with the public)? What type of claims do you plan to make about your products and services and are the claims substantiated? Are any disclosures required? Each of these may necessitate procurement of services by more vendors and will likely trigger additional compliance.
Bottom line … don’t punt on legal compliance when it comes to high visibility commercials. There are so many things to consider, but they can be easily managed with the right team.
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.