CHAPTER 8:
MARKETING, ADVERTISING AND PROMOTION
Ashima Dayal, Vejay Lalla and William Jelinek
Summary adapted from Chapter 8 of "Fashion Law: A Guide for Designers, Fashion Executives and Attorneys" edited by Guillermo C. Jimenez and Barbara Kolsun (Fairchild Books, 2010).
Fashion advertising involves a series of difficult legal issues that could potentially create costly legal missteps. Chapter 8 intends to educate the reader on how to ensure diligent legal compliance in the planning and execution of fashion advertising campaigns. The authors explore different stages of fashion advertising from a legal standpoint, providing a practical framework that ranges from the concept of advertising to the importance of substantiating a claim on the attributes and performance of the advertised product.
Advertising not only constitutes what we see on the media, any communication to the public directed to the promotion of an advertiser and/or its products is regarded as advertising. In this sense, a product display, an event sponsorship and even an oral communication by sales staff constitutes advertising and must be legally compliant.
Most fashion companies rely on advertising agencies to execute their advertising campaigns and in turn, these agencies rely on their staff members or subcontractors to provide creative services. Considering all the individuals involved in these projects, the fashion company must ensure that it owns all the rights in the created campaign. A company may obtain either full ownership rights or merely licensed limited rights over the creative work product depending on what is determined in the assignment agreement between the company and the agency. Another issue that may arise in the execution of a campaign relies on the risks of hiring well-known talent (i.e. a "signature" model or actor) for a campaign. Considering behavior of this individual may affect the reputation of the advertiser and/or its services in a considerable manner, a carefully drafted "morals clause" in the associated talent agreement must be one of the advertiser's concerns when hiring a well-known talent for a campaign.
The relationship established between advertisers and vendors, arises another core question with regards to ownership of creative work. Advertisers can "buy out" (own all rights including copyright) or merely license (limited rights) the content used in advertising campaigns. Materials like photography, music by third parties that are commonly used in campaigns require a cautious clearance by advertisers, meaning they must assure that they get permissions to use those materials before launching a campaign.
Advertising usually includes three types of statements and representations: express claims, implied claims and puffery. Express and implied claims must be materially true and not misleading, and have reasonable support and substantiation. On the other hand, Puffery includes vague representations that are not likely to be believed or do not address specific characteristics of a product or service. While puffery is not subject to legal scrutiny, express and implied claims are.
Chapter 8 presents a practical and detailed study of the legal issues presented above and many other key topics on Fashion advertising and the law, providing a guide that fashion advertisers and companies should carefully review when creating a campaign and therefore, ensure the success of their campaigns not only from a creative perspective but from a legal perspective as well.
Author details:
Ashima Dayal
Davis and Gilbert LLP
New York, New York
Vejay Lalla
Davis and Gilbert LLP
New York, New York
William Jelinek
VP and General Counsel
Estee Lauder Companies
Summary by: Margarita Serrano
