Managing Risk in the world of marketing, advertising and communications.
The Media, Advertising & Communications sector in Turkey is moving at a fast pace and there are regular amendments and reforms made to Turkish Laws. Often overlooked and sometimes avoided the legal framework is in place for the protection of both business and consumer and It is worth the time and due diligence required to make sure your business is protected from the risks of litigation, patent and Trademark disputes. The KILIC & Partners legal teams are knowledgeable within the sector of media and entertainment and can advise on the latest regulation in data protection, consumer issues, telecommunications law, e-commerce, contractual and infrastructure rules and regulations within Turkey.
We understand agencies and businesses in the media industry are focused on their customers in providing dynamic inventive and innovative products services and solutions, the prospect of entering into formal legal contracts and considering legal consequences may overlooked as creativity is the key, but creativity creates risk. Which is why we have identified some of the risks you should consider.
The potential for liability claims or a large legal claim is significant and intellectual property rights (IP) are the main source of income on creative works and the main stay of the Media industry sector. Protection of intellectual property is a major business factor and it should not be taken lightly by any media business who are trying to establish a significant industry presence. There are a number of Risk and Legal decisions and questions that must be asked and actioned at the initial stages of a company-agency-client relationship.
First of all, who owns the Creative?
Intellectual property is usually a key asset in marketing, advertising and communications and can have significant value which can be attacked or exploited by third parties, this can lead to long, complex disputes.
Before submitting any service, product or creative to a client, you need to establish who owns the IP and does it pass to client at which point and at what cost, or that the IP will be retained and licenced. Words, images, videos, brand names and logos all constitute intellectual property which must either be original and owned by the publisher or contractual permission must be granted for their use.
The problems that can arise include but are not limited to, the scope of the licence issued not being broad enough to cover the purposes for which the material is being used, like only covering one country and not covering international so it can be used in all the countries your client trades or to which communications may be initiated. The contract could be too short in duration and not coverer the full period for which the materials will be used.
The cost of legal claims in relation to IP disputes can rise very quickly and could even include claims against you from your own clients who may be sued by third parties alleging they own the rights for the materials you delivered, it is the due diligence you carry out at the beginning, that will protect both you and your clients from future problems.
Licensing intellectual property out to others and not including sufficient protection, giving away exclusivity or control or even ownership of part of the intellectual property. You must make sure that you are not assigning rights when you may just wish to grant a much tighter licence.
Employees and sub-contractors and they work they do is imperative to your business, but be aware if you have engaged third parties such as freelancers or contractors make sure that you have correctly contracted with them before they create any materials for you. Whilst there is the presumption that copyright generated by employees in the execution of their work, will be owned by the employer in the absence of a written agreement for contractors or consultants this is not true, intellectual property generated will belong to those consultants and contractors.
Contracts should contain very clear parameters as to project services and work they will be providing for you and also the transfer to you of all intellectual property rights of their work.
Confidentiality, non-disclosure agreements and trade secrets
Imagine that you have been invited to pitch for a client and they ask you to sign a confidentiality/ non-disclosure agreement (NDA). This will require you to keep any company information you receive ahead of the pitch confidential. It can be easy to overthink or worry about the implications or technical nature of a NDA, but you must make it work for you and may need to consider
- Will you be able to share information with the people who need to know in order to deliver the project?
- Do you wish your client to also sign an NDA as you are sharing your own business information?
Even if you are not asked to sign an NDA, confidentiality law requires you to keep any information given to you in circumstances which make clear that it is confidential. This would almost certainly cover a pitch scenario where company secrets are shared with you, a perfume manufacturer is launching a new scent or a secret recipe for popular soft drink, etc. If you disclose confidential information and your potential client suffers loss as a result, they will have a claim for damages against you.
When it comes to online there are many simple mistakes businesses make which can be easily avoided with the correct contract and legal due diligence.
Common things to consider.
Domain names, being registered in the name of an individual registrant rather than the company itself. This can lead to ownership disputes if an individual leaves a company, or become a major issue for possible investors in your business.
Registerable IP, such as trademarks and patents which not have not been registered or are not being registered in the correct name of the company. If you fail to register intellectual property that is capable of registration, there is very little to stop a competitor or other third party making the registration. You may have developed an exciting brand or invention but if it’s not registered and in the countries you wish to trade or advertise, then the intellectual property is not protected. Trade mark and patent disputes can be very costly
Open source software, free apps and downloads, you may be developing your own applications but using open source software to create parts, with no real records of the type of licences entered into or impact on the proprietary code. There is risk that your new super developed software or app which includes any “open source” may become open source itself and therefore required to be made available on a free basis to the world!
The use of people, Endorsements and in advertisements
If you know of a celebrity is using your client’s product, it can be tempting to tell the whole world but be careful to obtain permission beforehand your client may even know the person you wish to promote. Celebrities can command huge fees for endorsing products and may claim damages for false endorsement should their image be used to sell a product without their consent. Also using images or recommendations from members of the public you may also think is simple. Everyone has the right to privacy and using an individual’s image without consent could be a breach of the Data Protection Act. You should keep signed and dated proof of any testimonials.
Comparing products and services of a competitor when advertising can be dangerous, but is often a major creative plus, but get it wrong and your client could be liable for trade mark infringement and possibly libel and malicious falsehood.
For example if the advert comparing like-for-like, Adverts must not mislead their target audience. Consider all factors first identify the characteristics of the goods and services advertised, compared to those of the competitor but also how they are delivered and how it is priced. Make sure you’re not riding on the reputation of a client’s competitor. Adverts must not take unfair advantage of a competitor’s reputation in the market, example “Our new sports car handles like a “Porsche” an established sports car brand, well it’s not a Porsche unless your advertising a Porsche!
Native advertising and branded content
These are issues that need to be addressed especially if it breaks the rules and laws of the specific industry or sector. If you do create branded content for publication or display in a third party publication where the content and presentation is ‘native’ to the publication i.e. it looks and feels like editorial often called advertorials, then make sure you have a disclaimer and are transparent as to the purpose of the content.