PR 317 Chapter 17 Notes
Summary of Working with Lawyers -
- The worldview of public relations is disclosure and transparency. Attorneys are often hesitant to release any details about information that might be litigated. - A cooperative relationship must exist between public relations personnel and legal counsel. It helps if both groups report to the same top executive and are on key committees.
Summary of Sampling Legal Problems -
- A public relations practitioner can get caught up in a lawsuit or a complaint by a government regulatory agency in any number of ways. - Practitioners may be held legally liable if they provide advice or support the illegal activity of a client.
Summary of Trademark Law -
- A trademark is a word, symbol, or slogan that identifies a product's origin. Trademarks are always capitalized and used as adjectives rather than nouns or verbs. - Companies vigorously protect trademarks to prevent them from becoming common nouns. - Misappropriation of personality is a form of trademark infringement. It's the use of someone's name or image for promotional purposes without permission.
Summary of Copyright Law -
- Copyright is the protection of creative work from unauthorized use. It is assumed that published works are copyrighted, and permission must be obtained to reproduce material. - The "fair use" doctrine allows limited use of copyrighted material if it is properly attributed and quotation marks are used. - Unless a company has a specific contract with a freelance writer, photographer, or artist to produce work that will be exclusively owned by that company (a situation called "work for hire"), the freelancer owns his or her work. - Copyrighted materials cannot be downloaded or uploaded to Internet sites unless permission is given.
Summary of Invasion of Privacy -
- Organizations should only cover the work-related activities of their employees in newsletters. - It is important to get written permission to publish photos or use employees in advertising materials, and to be cautious in releasing personal information about employees to the media. - Employees should be cautious expressing criticism about their employer on blogs and social media sites. Employees can be fired for revealing trade secrets or harassing fellow employees through email or websites. - Companies also have guidelines for employee blogs. All employees should identify their affiliation if they are writing a blog or posting messages on social media sites about their employer and its products.
Summary of Regulatory Agencies -
- Public relations materials are considered commercial speech and subject to regulations by state and federal agencies charged with protecting the consumer from false, misleading, and deceptive messages. - Public relations personnel should be familiar with the guidelines of the FTC, SEC, FCC, and the FDA for the content and dissemination of information to the public.
Summary of Libel and Defamation -
- The concept of defamation can involve false, malicious, or negligent communication about an individual who is injured either financially or by loss of reputation. - Libel suits can be avoided through the careful use of language.
Avoiding Defamation Suits -
A lawsuit is always expensive and often damages an organization's reputation even if the lawsuit is dismissed, so it's always wise to carefully consider your choice of words. Words have denotative and connotative meanings. - In either case, an executive can invite a lawsuit by simply calling the leaders of a labor union a "bunch of crooks using Nazi tactics" during a labor dispute. - Or an executive might call a news reporter "a pimp for all environmental groups." ----> Such language, although highly quotable and colorful, can provoke legal retaliation. In situations involving personnel, organizations often avoid potential lawsuits by saying that an employee left "for personal reasons" or to "pursue other interests," even if the real reason was incompetence or a record of sexual harassment. ----> The main reason for using fairly innocuous language is that the individual usually hasn't been formally charged or convicted in a court of law. - It's also a good idea to avoid unflattering comments or accusations about the competition's products or services. Although comparative advertising is the norm in the United States, a company must walk a narrow line between comparison and "trade libel" or "product disparagement." ----> Statements should be truthful, with factual evidence and scientific demonstration available to substantiate them. Companies often charge competitors with overstepping the boundary between legitimate, factual comparison and defamation. EX. The dispute between Subway and Quiznos demonstrates the dangers of an ad campaign based on user-generated content: - Subway sued Quiznos because it sponsored a contest for the best homemade video showing why Quiznos sandwiches are superior to Subway's. The winning video showed a race between two wagons. The Quiznos wagon, in the form of a meaty sandwich, blasted smoke at the plain-looking Subway car, causing it to crash in defeat. The ad's creator got $10,000, and the video was shown on the Internet as well as on a giant screen in Times Square. Subway claimed that the video and others entered in the contest made "false statements" and depicted Subway in a "disparaging manner." Quiznos, of course, claimed that it was not legally liable for the content of a contest entry. An organization, however, can offer the opinion that a particular product or service is the "best" or "a revolutionary development" if the context clearly shows that the communication is a statement of opinion attributed to someone. ----> Then it is classified as "puffery" and doesn't require factual evidence, according to Federal Trade Commission (FTC) guidelines.
The Fair Comment Defense (17.2.1) -
A possible lawsuit provides a warning of what can happen, but this does not mean that an organization has to avoid statements of fact or opinion in public relations materials. Truth is the traditional defense against libel charges, but opinions also have a degree of legal protection under the First Amendment to the U.S. Constitution, which protects the freedom of speech. - This legal concept is known as fair comment privilege. EX. This defense, for example, explains why theater and music reviewers can skewer a play or concert with impunity. - It also means that mainstream journalists and even bloggers are protected when they write or post comments blasting a company's policy or products even if they have some of the facts wrong. As already stated, when individuals and companies voluntarily display their wares to the public for sale or consumption, they have no real recourse against criticism done with honest intention and lack of malicious intent. Fair comment also protects the critical comments of organizational executives, which may be included in a news release or as the result of a media interview. EX. In one case, the owner of the New York Yankees was sued for libel by an umpire when a news release from the team called him a "scab" who "had it in" for the Yankees and "misjudged" plays. A lower court awarded the umpire libel damages, but a higher court overturned the judgment by ruling that the comments in the news release constituted protected statements of opinion. **If you ever have occasion to write a news release that makes critical comments about another individual or organization, you can use the fair comment defense. ----> However, experts recommend that you take several precautionary measures, as follows: - Accompany opinion statements with the facts on which the opinions are based. - Clearly identify statements as opinions by using quote marks and attributing them to a particular individual. - Review the context of the language surrounding expressions of opinion, for possible defamation.
Libel and Defamation (17.2) -
According to the AP Stylebook, "Libel is injury to reputation. Words, pictures or cartoons that expose a person to public hatred, shame, disgrace or ridicule, or induce an ill opinion of a person are libelous." Traditionally, the term libel was a printed falsehood and slander involved an oral communication, such as a speech or a broadcast mention. - Today, however, the courts often use defamation as a collective term that involves comments made in the traditional media or even on social media. Juries award defamation damages to the extent that the following four points can be proved by the injured party: - the statement was published to others by print or broadcast; - the plaintiff was identified or is identifiable; - there was actual injury in the form of monetary losses, impairment of reputation, humiliation, or mental anguish and suffering; and - the publisher of the statement was malicious or negligent. EX. In one case, for example, a former employee of J. Walter Thompson advertising agency filed a $20 million defamation lawsuit after an agency news release said she was "let go" because of financial irregularities in the department she headed. - The lawsuit was dismissed because she could not prove that the agency acted in a "grossly irresponsible manner." With public figures—people in government, politics, and entertainment—the test is whether the publisher of the statement knew that it was false or had a reckless disregard for its truth. - Corporations, for the most part, are also considered "public figures" because they offer products and services for purchase and comment by consumers. ----> Consequently, corporations have little recourse when an activist group says a company is a major polluter, a consumer affairs reporter says a product is a "rip-off," or consumers pan a restaurant on Yelp! Such statements are in the realm of fair comment which is discussed next.
Trademarked or Generic? -
An example of an advertisement placed to remind others of your trademark is the Kleenex tissues ad that appeared in an issue of the Columbia Journalism Review Organizations adamantly insist on the proper use of trademarks in order to avoid the problem of having a name or slogan become generic. Or, to put it another way, a brand name may become a common noun through general public use. - Some trade names that have become generic or are popularly used as generic names include app, aspirin, thermos, touchtone, cornflakes, nylon, cellophane, yo-yo, and zipper. ----> This means that any company can use these names to describe a product.
Misappropriation of Personality (17.5.3) -
Another form of trademark infringement can result from the unauthorized use of well-known entertainers, professional athletes, and other public figures in an organization's publicity and advertising materials. - A photo of a rock star or movie star might make a company's brochure or newsletter more interesting, but the courts call it misappropriation of personality if permission and licensing fees have not been negotiated. Deceased celebrities also are protected. - To use a likeness or actual photo of a personality such as Michael Jackson, Marilyn Monroe, or even Princess Diana, the user must pay a licensing fee to an agent representing the family, studio, or estate of the deceased. T EX. he estate of Michael Jackson, for example, generates about $150 million annually, and the estate of Peanuts comic strip creator Charles Schulz collects about $25 million annually. Even celebrities like Elvis ($55 million), Marilyn Monroe ($27 million), and Albert Einstein ($10 million) generate remarkable income for their estates. ----> In sum, you need to be familiar with what might be considered trademark infringement. Don't use stock photos of living or dead personalities or a Dilbert or Peanuts comic strip unless you have arranged permission and, in many cases, paid a licensing fee. - Also, be cautious about using a known slogan as the basis for coming up with a similar slogan. ----> One non-profit was sued by the International Olympic Committee for having a "Reading Olympics."
Product Publicity and Advertising (17.3.3) -
As already noted, an organization must have a signed release on file if it wants to use the photographs or comments of employees and other individuals in product publicity, sales brochures, and advertising. - An added precaution is to give some financial compensation to make a more binding contract. EX. Facebook unfortunately learned this lesson the hard way. - The social network used pictures of millions of Facebook users in "Sponsored Story" advertisements. Facebook was accused of using the names, photographs, and identities of these users to advertise products without the users' consent. When Facebook users "liked" certain content, the social network created an ad displaying the names and photos of those users, implying endorsement of the product. The plaintiffs maintained that no one had requested permission to use their names and photos in advertisements. Facebook settled the lawsuit for $20 million. Facebook is only one example of brands showcasing and reusing customer photos and videos on websites and social networks. Such user-generated content, however, requires companies to put in place customer permissions to avoid lawsuits. If a brand is sponsoring a contest that involves submission of photos, essays, and videos by customers, the best approach is to have entrants check a box that they understand and agree that the organization can reuse their content for public relations and marketing purposes. EX. In another situation, Walmart was accused of using an employee's photograph in an advertisement to promote the opening of a new store. The employee had previously given consent to use the photograph in another context but after the employee was fired, Walmart used the photograph in a different context and attributed a quote to the employee that he had not made. The employee won the lawsuit and was paid $15,000 by Walmart. These actions are called misappropriation of personality, which is discussed later in this chapter. "If I used my mother in an ad, I'd get her permission—and I almost trust her 100-percent." — Jerry Della Femina, advertising executive Written permission also should be obtained if the employee's photograph is to appear in sales brochures or even in the corporate annual report. - This rule also applies to other situations. EX. A graduate of Lafayette College sued the college for using a photo of his mother and him at graduation ceremonies, without their permission, in a financial aid brochure.
Media Inquiries About Employees (17.3.4) -
Because press inquiries have the potential of invading an employee's right of privacy, public relations personnel should follow basic guidelines as to what information will be provided on the employee's behalf. In general, employers should give a news reporter only basic information about their employees. FLASHCARDS - - conformation that the person is an employee = DO provide - the persons title and job description = DO provide - date the beginning of employment or termination = DO provide - salary = do NOT provide - home address = do NOT provide - marital status = do NOT provide - number of children = do nOT provide - organizational memberships = do NOT provide - job performance information = do NOT provide If a reporter does seek any of this information, you can handle the request in several ways, depending on the nature of the story. 1) First, you can volunteer to contact the employee and explain that a reporter would like to speak with him or her. If the employee agrees to speak with the reporter, this absolves the company of responsibility. 2) Second, many organizations do provide additional information to a reporter if it is included on an optional biographical sheet that the employee has filled out. In most cases, the form clearly states that the organization may use any of the information in answering press inquiries or writing its own news releases. A typical biographical form may have sections in which the employee can list such things as memberships in community organizations, professional affiliations, educational background, past titles and positions, and even special achievements. - This sheet should not be confused with the person's official employment application, which must remain confidential. - It's also important to keep bio sheets up to date; one compiled by an employee 5 years ago may be hopelessly out of date.
The Securities and Exchange (17.6.2) -
Company megamergers, stock offerings in new companies, and major financial scandals have made the Securities and Exchange Commission (SEC) practically a household name. - This federal agency closely monitors the financial affairs of publicly traded companies and protects the interests of stockholders. SEC guidelines on public disclosure and insider trading are particularly relevant to corporate public relations staff members who must meet the requirements. - The distribution of misleading information or failure to make a timely disclosure of material information may be the basis of liability under the SEC code. - A company may even be liable if it satisfies regulations by getting information out but conveys crucial information in a vague way or buries it deep in the news release. The courts are increasingly applying the mosaic doctrine to financial information. - A court may examine all information released by a company, including news releases, to determine whether, taken as a whole, they create an "overall misleading" impression. EX. In Cytryn v. Cook (1990), a U.S. District Court ruled that the proper test of a company's adequate financial disclosure was not the literal truth of each positive statement, but the overall misleading impression that it combined to create in the eyes of potential investors. ----> As a result of such cases, writers of financial news releases must also avoid such practices as: - Unrealistic sales and earnings reports - Glowing descriptions of products in the experimental stage - Announcements of possible mergers or takeovers that are only in the speculation stage - Free trips for business reporters and offers of stock to financial analysts and editors of financial newsletters - Omission of unfavorable news and developments - Leaks of information to selected outsiders and financial columnists - Dissemination of false rumors about a competitor's financial health The SEC also has regulations supporting the use of "plain English" in prospectuses and other financial documents. - Companies and financial firms are supposed to make information understandable to the average investor by removing sentences littered with lawyerisms such as aforementioned, hereby, therewith, whereas, and hereinafter. - More information about SEC guidelines and the agency publication, A Plain English Handbook: How to Create Clear SEC Disclosure Documents, can be accessed at SEC.gov. A key SEC regulation is the Fair Disclosure regulation (known as Reg FD). Although SEC regulations already mandated "material disclosure" of information that could affect the price of stock, this regulation expands the concept by requiring publicly-traded companies to broadly disseminate "material" information via news releases, webcasts, or SEC filings. - According to the SEC, Reg FD ensures that all investors, not just brokerage firms and analysts, will receive financial information from a company at the same time. - Schering-Plough, a drug maker, was fined $1 million by the SEC because the company disclosed "material nonpublic information" to analysts and portfolio managers without making the same information available to the public.
Work for Hire (17.4.3) -
Copyright automatically belongs to the creator of the work, but the "work for hire" concept provides a notable exception. - If you create a work as an employee of an organization, the copyright belongs to the organization. ----> In other words, all those wonderful news releases and brochures that you write and produce on the job belong to your employer. It gets a bit more complicated, however, when an organization outsources work to a freelancer, such as the writing of a brochure or a feature story. - The U.S. Supreme Court has ruled that freelance writers retain ownership of their work and that purchasers of it simply gain a "license" to reproduce the copyrighted work. ----> In other words, a freelancer commissioned to write an article for the company magazine or a feature distributed to the media can also use the same information to sell articles to other publications. - That's why it's important for public relations staffs to negotiate contracts with freelancers. Writers may agree to assign all copyright rights to the work they have been hired to do or they may give permission only for a specific one-time use.
Can Facebook Get You Fired? -
Employee statements on their own personal blogs or Facebook also have legal ramifications, which are discussed in the Tips for Success below. All employees should realize that they can get fired for (1) sharing inappropriate comments via the organization's email system, (2) surfing the Internet at work, and (3) even criticizing their boss on their own Facebook page. VENTING ON YOUR FACEBOOK PAGE - It's wise to avoid ranting about your employer or boss on Facebook, which can also lead to being fired or getting involved in a long legal battle to keep your job. About 25 percent of employers surveyed by the Society of Corporate Compliance and Ethics had disciplined an employee for improper activities on social networking sites. According to a CNN report, "If a worker posts something negative, and a manager finds it, he or she can legally be fired, some employment attorneys say." However, Marshall B. Babson, a former member of the National Labor Relations Board, said that a firing offense is dependent upon whether statements are factual and business-related. Experts gave CNN some tips on how to avoid legal hassles or possibly lose your job because of what you post on Facebook or other social networking sites. They include these warnings: - THINK BEFORE YOU POST. Imagine your post appearing in the newspaper the next day. - BE PICKY ABOUT WHOM YOU "FRIEND." Only allow people you trust into your social network. Don't necessarily accept requests from all coworkers or even managers. - DO IT ON YOUR OWN TIME AND COMPUTER. Avoid using the company computer. - WATCH WHAT YOU POST. Many companies monitor social media comments that mention the name of the organization. - FIGURE OUT PRIVACY SETTINGS. Make sure certain information doesn't reach everyone.
Invasion of Privacy (17.3) -
Invasion of privacy "n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded." — Gerald and Kathleen Hill, The People's Law Dictionary One area of possible liability and potential lawsuits is an organization's treatment of its employees or customers with regards to privacy. ----> Public relations writers and staff are vulnerable to litigation on the basis of an invasion of privacy, in at least five areas: - Employee newsletters - Photo releases - Product publicity and advertising - Media inquiries about employees - Employee blogs
Employee Newsletters (17.3.1) -
It is no longer true, if it ever was, that an organization has an unlimited right to publicize the activities of its employees. - In fact, Morton J. Simon, a Philadelphia lawyer and author of the classic Public Relations Law, wrote, "It should not be assumed that a person's status as an employee waives his right to privacy." ----> Today, Simon's comment is still correct. A company newsletter or magazine does NOT enjoy the same First Amendment protection that the news media enjoy when they claim "newsworthiness" and "public interest." - A number of court cases have shown that company newsletters are considered commercial tools of trade. - This distinction doesn't impede the effectiveness of newsletters, but it does indicate that editors should try to keep employee stories organization-oriented. ----> Indeed, many lawsuits and complaints are generated by references that may invade the privacy of employees. Although a mention that Joe Smith collects baseball caps or that Mary Worth is now a great-grandmother may sound completely innocent, the individuals involved—for any number of reasons—might consider the information a violation of their privacy. - The situation could be further compounded into possible defamation by "cutesy" editorial asides in poor taste. ----> In sum, one should avoid anything that might embarrass or subject an employee to ridicule by fellow employees. Here are some guidelines to remember when writing about employee activities: - Keep the focus on organization-related activities. - Have employees submit personal stories or notes in writing, giving permission for them to be used or quoted. - Double-check all information for accuracy. - Ask: "Will this embarrass anyone or cause someone to be the butt of jokes?" - Don't rely on secondhand information; confirm the facts with the person involved. - Don't include racial or ethnic designations of employees in any articles.
Photo Releases (17.3.2) -
Ordinarily, a public relations practitioner doesn't need a signed release form if a person gives implied consent by posing for a picture and is told how it will be used. This is particularly true for "news" photographs published in internal newsletters or posted on the organization's intranet. Public relations departments, however, should take the precautions of : - filing all photographs, - dating them, and - giving the context of the situation. ----> This can help prevent the use of old photos that could embarrass employees or subject them to ridicule. In other cases, it also precludes using photographs of persons who are no longer employed or have died. ----> This method also helps to ensure that a photo taken for the employee newsletter isn't used in an advertisement. If a photo of an employee or customer is used in product publicity, sales brochures, or advertisements, the standard practice is to obtain a signed release, getting the explicit consent of the subject in the photo to use her or his image in particular ways.
Fair Use versus Infringement -
Public relations writers are in the business of gathering information from a variety of sources, so it is important to know where fair use ends and infringement begins. - This also applies to plagiarism. PLAGARISM - Copyright infringement and plagiarism differ. - You may be guilty of copyright infringement even if you attribute the materials and give the source but don't get permission from the author or publisher to reproduce the materials. In the case of plagiarism, the author makes no attempt to attribute the information at all. - As the guide for Hamilton College says, "Plagiarism is a form of fraud. You plagiarize if you present other writer's words or ideas as your own." - Maurice Isserman, writing in the Chronicle of Higher Education, explains, "Plagiarism substitutes someone else's prowess as explanation for your own efforts." ----> At its most basic level, plagiarism is using sentences and paragraphs from someone else's work without attribution or quote marks. The Internet has increased the problems of plagiarism because it is quite easy for anyone, from students to college presidents, to cut and paste entire paragraphs (or even pages) into a term paper or speech and claim them as their own creation. - Of course, getting away with it has become more difficult because of sophisticated tools such as Turnitin, which can scan the Internet and find the exact sentence or paragraph that the student copied and pasted into a paper. - "... 85 percent of the cases of plagiarism that we see are straight copies from the Internet—a student uses the Internet like a 1.5 billion-page cut-and-paste encyclopedia." — Turnitin founder John Barrie in The Wall Street Journal Most universities have very strong rules about plagiarism, and it is not uncommon for students to receive an "F" in a course for plagiarism. - In the business world, stealing someone else's words and expression of thought is called theft of intellectual property and employees, including CEOs, are fired. ----> In sum, don't use "cut and paste" as a substitute for producing your own work. - If someone's sentence or paragraph is really great, at least put it in quotes and give proper attribution. FAIR USE - Fair use means that part of a copyrighted article can be quoted directly, but the quoted material must be brief in relation to the length of the original work. EX. It may be, for example, only one paragraph from a 750-word article and up to 300 words from a longer article or book chapter. ----> Complete attribution of the source must be given regardless of the length of a quotation. In the case of using a source or a quote in an ad or promotional brochure, it's necessary for the original source to approve the quote and the context in which it's used. The copyright law does allow limited copying of a work for fair uses such as criticism, comment, or research. - If an organization wants to reprint multiple copies of a newspaper or magazine article, however, a licensing fee must be paid directly to the publisher or through the Copyright Clearing Center. EX. The Wall Street Journal, for example, has a whole Dow Jones Reprints department that arranges reprints that can be used in print, email, or PDF formats. Government documents, as already noted, are in the public domain. - Public relations personnel, under the fair use doctrine, can freely use quotations and statistics from a government document. - Care must be exercised, however, to ensure that the material is in the correct context and not misleading. The most common problem occurs when an organization uses a government report as a form of endorsement for its services or products. EX. An airline, for example, might cite a government study showing that its on-time arrivals are the best in the industry, but neglect to state the basis of comparison or other mediating factors.
A Sampling of Legal Problems (17.1) -
Public relations writers, once they have mastered the basics of persuasive writing, also have the responsibility to work within the law. - You must understand basic legal concepts that provide a framework for all your writing. A false product claim in a news release or the unauthorized use of a celebrity's photograph can lead to costly lawsuits for you and your employer or client. - Here's a sampling of recent government regulatory agency cases and lawsuits that involved public relations materials and the work of PR practitioners: LIBEL AND DEFAMATION - - Texas Tech football coach Mike Leach sued Spaeth Communications, ESPN, and ESPN analyst Craig James for defamation and conspiracy. Leach claimed that James hired Spaeth to create "public opinion hostile to Leach." The lawsuit was eventually dismissed by the court. INVASION OF PRIVACY - - Actress Katherine Heigl sued drugstore chain Duane Reade for $6 million after the company posted on its Twitter and Facebook accounts a paparazzi photo of her carrying the chain's shopping bags. The lawsuit was eventually dropped when the drugstore chain agreed to make a contribution of an undisclosed amount to a charity of the actress's choice. - A Chicago man sued for invasion of privacy after he appeared in a video news release for a cholesterol-lowering drug, because the company and video producer didn't tell him the actual purpose of the taping. - An 81-year-old man sued the United Way of America for using his picture on campaign posters and brochures without his permission. COPYWRITE - - The Michigan Economic Development Corporation was forced to take down a popular YouTube video when Songs Music Publishing claimed music used to promote Michigan tourism was based on the song "Good Time," to which the music publishing house held the copyright. - The Beastie Boys filed a lawsuit against Monster Beverage Corporation charging copyright infringement and false endorsement for using a Beastie Boys song on a video of a beverage-sponsored snowboarding event. The music group was eventually awarded a $1.7 million judgment in the case. TRADEMARK - - The Walt Disney Co. is known for carefully guarding its trademarks. When Canadian musician Joel Zimmerman, a.k.a. Deadmau5, filed for a trademark of his big-eared, big-smile mouse logo, Disney filed a trademark infringement suit. Unlike many who are faced with similar actions from Disney, Zimmerman didn't back down and the case remained active. REGULATORY AGENCIES - - The Federal Trade Commission (FTC) charged home security company ADT with "misrepresenting paid endorsements as independent reviews" when the company compensated a child safety expert, a home security expert, and a technology expert to appear on NBC's Today Show and many other programs to endorse the home security company. - Bonner & Associates and its client, the Pharmaceutical Research and Manufacturers of America, were charged with violating Maryland's lobbying disclosure laws by distributing materials under the name of a fictitious consumer-based organization set up by the pharmaceutical industry. - The Securities and Exchange Commission (SEC) fined a former employee of Ogilvy PR Worldwide $34,000 for giving his father "insider information" that he then used to purchase stock. - The FTC sent a warning letter to shoemaker Cole Haan when the shoe company engaged consumers in a Pinterest campaign Haan called the "Cole Haan Wandering Sole" campaign. The company was warned that it should have had consumers say they created Pinterest boards in pursuit of the $1,000 shopping spree prize. The prize, the FTC said, could be seen as compensation for endorsement and so the contestants were potentially paid endorsers. - Applied Food Sciences (AFS), a company that sells Green Coffee Antioxidants as a weight-loss supplement, was fined $3.5 million by the FTC after the company issued a press release touting its product and its mention on The Dr. Oz Show. The FTC charged that weight-loss claims were based on a scientifically flawed study that AFS should have known was questionable. - The FTC fined Legacy Learning Systems $250,000 for paying a marketing firm's employees to post glowing reviews of the company's new DVD series on various consumer websites. ----> These examples provide some idea of the legal pitfalls that a public relations practitioner may encounter. - Many of the charges were eventually dismissed or settled out of court, but the organizations paid dearly for the adverse publicity and the expense of defending themselves. ----> The goal, of course, is to understand the law well enough to avoid these types of situations in the first place. Public relations personnel must be aware that they can be held legally liable if they provide advice concerning or tacitly support a client or employer's illegal activity. ----> This area of liability is called conspiracy. You can be named as a coconspirator with other organizational officials if you: - Participate in an illegal action such as bribing a government official or covering up information of vital interest to the public health and safety - Counsel and guide the policy behind an illegal action - Take a major personal part in the illegal action - Help establish a "front group" whereby the connection to the public relations firm or its clients is kept hidden - Cooperate in any other way to further an illegal action ----> These five concepts also apply to public relations firms that create, produce, and distribute materials on behalf of clients. The courts have ruled on more than one occasion that public relations firms cannot hide behind the defense of "the client told me to do it." - Public relations firms have a legal responsibility to practice "due diligence" in the type of information and documentation supplied by a client. Regulatory agencies such as the FTC have the power under the Lanham Act to file charges against public relations firms that distribute false and misleading information.
Employee Behavior Online (17.3.5) -
SOCIAL MEDIA - Many organizations now encourage employees to have a blog or other social media presence as a way of fostering online discussion and obtaining informal feedback from the public. - In some large companies, even top executives have a blog or Twitter account, although public relations professionals often do most of the actual writing for blog posts. In most cases, blogs and Twitter account pages are clearly identified with the creator and give information (and images) about the employer. - As John Elasser, editor of Public Relations Tactics, says, "Some of that content may be innocuous; other types may be embarrassing or come back to haunt the company in litigation." ----> Consequently, organizations should have guidelines for what rank-and-file employees, as well as public relations writers, can and cannot say in their blog posts, tweets, or even their Facebook pages. One consideration is the protection of proprietary information such as financial data, marketing strategies, legal proceedings, or impending changes in executive personnel. EX. Google, for example, fired an employee blogger for leaking information about an impending raise in salaries for all employees. Employees are also discouraged from talking about fellow colleagues or making comments about supervisors and executives. - Such postings can invade the privacy of other employees and even lead to lawsuits if someone feels that he or she has been ridiculed or defamed in some way. EX. The U.S. Equal Employment Opportunity Commission, for example, has a number of regulations protecting employees against discrimination in terms of religion, ethnic background, gender, and even their English skills. If employees mention the company in any way on a blog or other social media, most organizational policies require them to reveal their affiliation to ensure transparency. - BUT most also have rules about appropriate social media content. EX. Walmart, for example, has a policy that states, "In any and all interactions make sure that you don't share confidential or private information about the Company's business operations, products, services, or customers; respect financial disclosure laws; and do not say you speak for the Company without express written authorization from the Company to do so." "If someone is a fisherman and they want to talk about fly fishing outside of work, that's not our business. But if someone is going to talk about notebooks, they have to say they are from Dell." — Bob Pearson, vice president of Dell Computers ORGANIZATIONAL EMAIL - A number of court decisions have reinforced the right of employers to read employee emails. EX. Pillsbury, for example, fired a worker for calling management a bunch of "back-stabbing bastards" in an email to a fellow employee. Other employers have successfully fired workers who used company email for: - making racial slurs - harassing fellow workers - sharing off-color jokes - revealing proprietary information, such as trade secrets, to outsiders ----> In other words, you should assume that any emails you write at work are subject to monitoring and that you can be fired for violating company guidelines. SURFING THE NET - Surfing the Internet at work for personal reasons can also get you fired. - Employers, of course, are concerned about the loss in productivity when employees watch YouTube videos, update their Facebook page, and make bids on eBay. - Employees surfing porn sites also pose a possible liability problem if other employees are offended and file a complaint with the Equal Employment Opportunity Commission (EEOC).
Copyright Law (17.4) -
Should a news release be copyrighted? What about a corporate annual report? Can a Pearls Before Swine comic strip be featured in the company magazine without obtaining permission from the strip's creator? What about reprinting or even photocopying an article from Fortune magazine and distributing it to the company's sales staff? Are government reports copyrighted? What about posting a video clip from Comedy Central on YouTube? What constitutes copyright infringement? ----> These are just some of the bothersome questions that a public relations writer should be able to answer. Knowledge of copyright law is important from two perspectives: (1) what organizational materials should be copyrighted and (2) how to correctly utilize the copyrighted materials of others. ----> In very simple terms, copyright means protection of a creative work from unauthorized use. U.S. copyright law states: "Copyright protection subsists...in the original works of authorship fixed in any tangible medium of expression now known or later developed." The word authorship is defined in seven categories: - literary works; - musical works; - dramatic works; - pantomimes and choreographic works; - pictorial, graphic, or sculptural works; - motion pictures; and - sound recordings. The word fixed means that the work is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated. ----> Thus, a copyright does not protect ideas, but only the specific ways in which those ideas are expressed. EX. An idea for promoting a product, for example, cannot be copyrighted—but brochures, drawings, news features, animated cartoons, display booths, photographs, audio and video recordings, corporate symbols, slogans, and the like that express a particular idea can be copyrighted. Under current law, a work is automatically copyrighted the moment it is "fixed" in tangible form—whether on paper or stored in a computer. - Although such a "work" doesn't have to carry a notice of copyright, many organizations take the extra precaution of using the copyright symbol—the letter "c" in a circle (©)—followed by the word copyright and the year of copyright, to discourage unauthorized use. - A more formal step is official registration with the Copyright Office of the Library of Congress. Registration isn't necessary for copyright protection, but it is often helpful in a court case against unauthorized use by others. A copyright, under current U.S. law, protects original material for the life of the creator plus 70 years for individual works and 95 years from publication for copyrights held by corporations. ----> This is often called the "Mickey Mouse" law because Walt Disney Corporation lobbied Congress to extend copyright protection of its Mickey Mouse character that was due to expire.
Guidelines for Endorsements and Disclosures -
The FTC is constantly adjusting its guidelines to adapt to changing media environments and promotional tactics. - In 2010, the FTC expanded its guidelines for using testimonials and endorsements. EX. Celebrities who endorse products on television talk shows, or even social media sites (such as Facebook or Twitter), for example, must now disclose that they're being paid to do so. In addition, they can be fined by the FTC for making false or unsubstantiated claims during a product pitch. Bloggers and public relations firms are also under the FTC microscope. - Bloggers who endorse a product or service must disclose whether they received cash, free products, or other in-kind payments to review the product and endorse it. According to Andrew Goldstein, writing in O'Dwyer's, "If these disclosures are not made, the post is considered to be deceptive and false or misleading. In addition, the FTC has specified that its guidelines apply not only to the provider of the product or services...but also to the advertising or PR agency that was responsible for the endorsements." "Marketers have an obligation and responsibility to the public—and to their clients and employers—to ensure they provide the most trustful and accurate information, regardless of the medium or presentation materials used." — PRSA position statement on FTC's environmental marketing guidelines - In 2013 the FTC distributed new rules for disclosures on digital media. In a document titled ".com Disclosures: How to make effective disclosures in digital advertising," the FTC said that disclosures have to be "clear and conspicuous." Among the guidelines are: Disclosures must be close in proximity to the "triggering claim." - Disclosures must be adaptable between devices. - They must work the same on a phone screen as on a tablet screen. - If using a hyperlink to make a disclosure, the link has to be obvious and labeled in a way that conveys its importance. - Avoid requiring consumers to scroll to get to a disclosure. - Keep up with research about where consumers do and don't look on a screen. - Disclosures must be made before a consumer makes a buying decision. - Disclosures shouldn't be hidden in places like "terms of use." - Size, color, and graphics should be used to prominently display disclosures. - Disclosures should be made in common, understandable language.
The Federal Communications Commission -
The Federal Communications Commission (FCC) provides licenses to radio and television stations, allocates frequencies, and ensures that the public airwaves are used in the public interest. - On occasion, the commission's policies and procedures directly impact the work of public relations personnel and writers who produce and distribute video news releases (VNRs) and B-roll packages on behalf of employers and clients. According to FCC rules, broadcasters must disclose to viewers the origin of material produced by the government or corporations when the material runs on the public airways. - FCC Commissioner Jonathan Edelstein told the Washington Post, "We have a responsibility to tell broadcasters they have to let people know where the material is coming from. Viewers are hoodwinked into thinking it's really a news story when it might be from the government or a big corporation trying to influence the way they think." The failure of a news announcer to identify the source of a VNR or a video clip on the air is one issue, but another issue involves what is known as pay-for-play, which is also against FCC guidelines. EX. In one instance, toy manufacturers paid up to $11,000 to be part of a series of back-to-school news features that aired in 10 major U.S. cities. According to the Los Angeles Times, the segments featured a "toy expert" who was paid to promote the toys. Many of the stations using the "news features" failed to identify them as paid promotions. - The FCC only regulates and fines stations for engaging in pay-for-play tactics and failing to identify the source of video clips in news programs. -- However, public relations professionals must also ensure that their employers and clients don't participate in or initiate "pay-for-play" strategies.
The Federal Trade Commission (17.6.1) -
The Federal Trade Commission (FTC) ensures that advertisements are not deceptive or misleading. - The agency also has jurisdiction over product news releases and other forms of product publicity, such as videos, brochures, websites, and social media posts. EX. In 2014, for example, the FTC sued Pure Green Coffee for using websites designed to look like legitimate consumer news sites; the sites made false claims about the product and posted fake consumer testimonials. The FTC considers advertisements and product publicity materials as vehicles of commercial trade—and therefore subject to regulation. - In fact, Section 43(a) of the Lanham Act makes it clear that anyone is subject to liability if that person participates in the making or dissemination of a false and misleading representation in any advertising or promotional material. ----> This includes advertising and public relations firms (and their personnel), which also can be held liable for writing, producing, and distributing product publicity materials on behalf of clients. "There is a trend toward potential claims, including PR firms, for their role in disseminating a message that is misleading or ... has omitted material facts." — Michael Lasky, partner in the New York law firm of Davis & Gilbert The prospect of liability for communicating false or misleading information has led many public relations firms to sign contracts with clients that stipulate that the client, not the PR firm, is legally responsible for any information about their products and services that may be distributed by the firm. - Despite such agreements, however, the FTC contends that public relations firms can still be held liable for disseminating client messages if there is a justifiable reason for them to suspect the client may be misleading the public, either through distortion or by leaving out important information. ----> Ethically, a public relations professional should ensure that a client's claims can be substantiated and there's statistical evidence to support any claims. Gene Grabowski, senior vice president of Levick Strategic Communications, told PRWeek, "We can serve as a check for the client. And we consider that part of our job because as a communicator, you can easily get into competitive entanglements or litigious issues." FTC investigators are always on the lookout for unsubstantiated claims and various forms of misleading or deceptive information. - Some of the common words in promotional materials that trigger FTC interest include authentic, certified, cure, custom-made, environmentally friendly, free, germ-free, new, natural, unbreakable, perfect, first-class, exclusive, and reliable. - In recent years, the agency has also turned its attention to companies promoting their products as "green, "organic," or "eco-friendly." According to James Kohm, associate director of FTC's enforcement division, there has been a "tsunami of green marketing claims" for all kinds of products that has confused and frustrated consumers. ----> As a result, the FTC guidelines now say companies must provide facts and data to substantiate any "green" product claims in ads, product news releases, and on packaging.
The Food and Drug Administration (17.6.4) -
The Food and Drug Administration (FDA) oversees the advertising and promotion of prescription drugs, over-the-counter medicines, and cosmetics. - Under the Food, Drug, and Cosmetic Act, any "person" (which includes advertising and public relations firms) who "causes the misbranding" of products through the dissemination of false and misleading information may be liable. The FDA has specific guidelines for video, audio, and print news releases on health care topics. 1) First, the release must provide "fair balance" by telling consumers about the risks as well as the benefits of the drug or treatment. 2) Second, the writer must be clear about the limitations of a particular drug or treatment, for example, that it might not help people with certain conditions. Third, a news release or media kit should be accompanied by supplementary product sheets or brochures that give full prescribing information. "Always minimize the risk of handing over a communication that could result in regulatory action by scrutinizing not only what is being said, but how it is said, how it is presented and what, in the end, is the total picture." — Mark Senak, senior vice president of Fleischman Hillard's health care practice The Office of Prescription Drug Promotion (OPDP) resides within the FDA and has the primary responsibility for ensuring that promotion is true and balanced. - Previously, the OPDP was called the Division of Drug Marketing, Advertising and Communications. ----> Because prescription drugs have major FDA curbs on advertising and promotion, the drug companies try to sidestep the regulations by publicizing diseases. EX. For example, Allergan, a health care company that specializes in ophthalmic pharmaceuticals, sponsors the website MyDryEyes.com. The website suggests several ways to manage Chronic Dry Eye Syndrome, including artificial tears and prescription medicines. The company also happens to manufacture REFRESH Brand Lubricant Eye Drops and RESTASIS, a drug that helps increase tear production. Another public relations approach that has come under increased FDA scrutiny is the placement of celebrities on television talk shows who are being paid by drug companies to mention the name of a particular drug while they talk about their recovery from cancer, a heart attack, or depression. - Some programs, such as the Today show, have now banned such guests.
PR Casebook : Legal and Regulatory Bodies Continue to Define Social Media Rules -
The National Labor Relations Board (NLRB) has been active in trying to bring some clarity to rules for social media use by employees. - The NLRB works to support employee rights. ----> These cases help define the rules for employers. Phillip Gordon and Lauren Woon of the Littler Mendelson law firm provide some tips about employer social media policies based on recent NLRB cases. Employers have limited ability to protect confidential information. A case against a Hooters franchise was based on the employer's social media policy, which read, in part: [t]he unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party [might result in discipline up to, and including immediate termination.] This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records. A judge found that the rules were unlawfully broad because employees might be led to believe that the policy prohibited them from discussing wages or conditions of employment with nonemployees. Additionally, the language didn't provide any exceptions for legally protected speech or activities. Employers should avoid broad restrictions on social media posts. A case against Lily Transportation addressed policies that provide broad restrictions on what employees can post about their employer online. The Lily Transportation policy stated: [E]mployees would be well advised to refrain from posting information or comments about [the company], the [company's] clients, [the company's] employees or employees' work that have not been approved by [the company] on the internet .... [The company] will use every means available under the law to hold persons accountable for disparaging, negative, false or misleading information or comments involving [the company] or [the company's] employees and associates on the internet... The NLRB said these policies were "impermissibly overbroad" because: They didn't adequately specify what types of information employees couldn't post; They didn't adequately differentiate information employees were prohibited from posting and protected speech; They didn't provide "appropriate," "professional," "respectful," or "unfavorable" examples of social media content. In short, employers can't simply ban negative comments about their organization or set totally subjective standards. Employers can't require "respectful" posts. In the Hooters case the employer fired a server, in part, for "posting disparaging comments about coworkers and managers on social media." The employer said the behavior violated the company's insubordination rule, which prohibited "insubordination to a manager or lack of respect and cooperation with fellow employees or guests." The court said the rule was subjective because it didn't adequately define "insubordination," "lack of respect" or "cooperation." Another problem is that there wasn't any description of what was or wasn't uncooperative behavior. Employers can't prohibit posts that "negatively affect" them. Laurus Technical Institute had a "No Gossip Policy" that came under fire. The policy prohibited "gossip about the company, an employee, or customer" and defined "gossip" broadly to include: (a) "[n]egative or untrue or disparaging comments" about others, (b) "repeating information that can injure a person," and (c) "repeating a rumor about another person." The NLRB said the language was overly broad and ambiguous and that it might keep employees from complaining about terms or conditions of employment. Employer Takeaways Social media law is still constantly changing. This means that employers need to keep apprised of changes and check their social media policies with legal counsel on a regular basis. Social media policies need to be specific and easily understandable. What is allowed and not allowed on social media should not be subjective. Consider whether social media policies could be interpreted as designed to keep employees from talking about wages and other workplace employment matters. Use examples and define limits when establishing social media policies for things like being "respectful." If a social media policy references something like non-disclosure of confidential information that is discussed in more detail elsewhere in an employee handbook, then the specific citation for the detailed policy should be noted in the social media policy section.
Photography and Artwork (17.4.2) -
The Web is now a vast repository of photos and, because public relations personnel use even more images in their content, it's quite easy for them to just search Google, right-click on a photo or illustration, and insert it into their Facebook page or blog. - The only problem is that many of those photos are copyrighted and require permission and even a licensing fee in order to use them in a public relations program or campaign. Copyright law clearly protects freelance and commercial photographers who retain ownership of their work. ----> In other words, a customer who buys a copyrighted photo owns the item itself, but not the right to make additional copies. - That right remains with the photographer unless it's transferred in writing to the individual or organization that has bought the photograph. Freelance photographers generally charge for a picture on the basis of its use. - If it is used only once, perhaps for an e-newsletter, the fee is low. - If, however, the company wants to use the picture in the corporate annual report or on the company calendar, the fee may be considerably higher. ----> Consequently it is important for a public relations person to tell the photographer exactly how the picture will be used. Arrangements and fees then can be determined for (1) one-time use, (2) unlimited use, or (3) the payment of royalties every time the picture is used. Computer manipulation of an original artwork can also violate copyright. EX. A photo distribution agency successfully sued Newsday for unauthorized use of a color image after the newspaper altered the agency's original picture and claimed it as its own photo. EX. In another situation, the Rock and Roll Hall of Fame filed a copyright suit against a freelance photographer who snapped a picture of the unique building at sunset and sold posters of his work without paying a licensing fee. ----> In sum, public relations personnel must be diligent about ensuring they have authorization to use a specific photograph. One approach is to purchase photos from a free stock image website or collection. - Some sites charge a subscription fee that allows unlimited downloading of images. - You can also search for images under the "Creative Commons License," which has images that the photographer has released for common use. ----> In all cases, you should give credit to the photographer or source of the image.
FTC Guidelines for Publicizing Products -
The following guidelines, adapted from regulations of the Federal Trade Commission (FTC), should be taken into account when writing product publicity materials: - Make sure the information is accurate and can be substantiated. - Stick to the facts. Don't hype the product or service by using flowery, nonspecific adjectives and ambiguous claims. - Make sure celebrities or others who endorse the product actually use it. They should not say anything about the product's properties that cannot be substantiated. - Watch the language. Don't say "independent research study" when the research was done by the organization's staff. - Provide proper context for statements and statistics attributed to government agencies. They don't endorse products. - Describe tests and surveys in sufficient detail so the consumer understands what was tested under what conditions. - Remember that a product is not "new" if only the packaging has been changed or the product is more than 6 months old. - When comparing products or services with a competitor's, make certain you can substantiate your claims. - Avoid misleading and deceptive product demonstrations.
How to Use Copyrighted Material -
The list of guidelines in the Tips for Success below can help you sort out various copyright issues. All major public relations materials (brochures, annual reports, photos, videos, position papers, and the like) should be copyrighted, if only to prevent unauthorized use by competitors. Additionally, keep the following guidelines in mind when reproducing or redistributing materials. PERMISSION DEFINITELY NEEDED - - Although there is a concept of fair use, any copyrighted material intended directly to advance the sales and profits of an organization should not be used unless permission is given. - Permission is required to use segments of television programs or motion pictures. Permission from a recording company must be obtained to use segments of popular songs (written verses or sound recordings). - Photographers and freelance writers retain the rights to their works. Permission and fees must be negotiated to use works for purposes other than those originally agreed upon. - Photographs of current celebrities or those who are now deceased cannot be used for promotion and publicity purposes without permission. - Permission is required to reprint cartoon characters, such as Snoopy. In addition, cartoons and other artwork or illustrations in a publication, such as the Cat in the Hat, are copyrighted. HANDLE WITH CARE - - Ideas cannot be copyrighted, but the expression of those ideas is protected. - An entire article that is emailed to a large number of people or posted on a website or a blog requires the permission of the publication or creator of the work. - Using news clips to track coverage is acceptable, but distributing clips to a large audience is a violation of copyright. - Copyrighted material should not be taken out of context, particularly if it implies endorsement of the organization's services or products. - Quantity reprints of an article should be ordered from the publisher. - Government documents are not copyrighted, but caution is necessary if the material is used in a way that implies endorsement of products or services. - Private letters, or excerpts from them, cannot be published or used in sales and publicity materials without the permission of the letter writer. - Original material posted on the Internet has copyright protection. - The copyrighted material of others should not be posted on the Internet unless specific permission is granted. Not all materials, however, have copyright protection. - Some material is considered to be in the public domain because of its age. Many literary classics and the works of great composers, such as Chopin, can be used without violating copyright. Materials produced by the federal government can also be used freely, but there are some guidelines regarding their use that are discussed further in the next section.
Regulatory Agencies (17.6) -
The promotion of products and services, whether through advertising, product publicity, or other techniques, is not protected by the First Amendment. - Instead, the courts have traditionally ruled that such activities fall under the doctrine of commercial speech. ----> This means that messages can be regulated by state or federal agencies in the interest of public health, safety, and consumer protection. Public relations writers involved in product publicity and the distribution of financial information should be aware of guidelines established by four federal agencies: - the Federal Trade Commission, - the Securities and Exchange Commission, - the Federal Communications Commission, and - the Food and Drug Administration.
Use of Online Material (17.4.4) -
The same rules apply to cyberspace as to more earthbound methods of expressing and disseminating ideas. Original materials in digital form are still protected by copyright, and fair use guidelines apply for materials disseminated online. EX. An organization, for example, may receive digital copies of media stories about the organization as a way to track its publicity efforts, but it can't automatically distribute a published article on its own website or intranet without permission from the publication where the article appeared. - In many cases, the monitoring service arranges for such permissions. An organization's public relations staff members, as already mentioned, can also be liable for copyright infringement if they upload a copyrighted photo or cartoon to the organization's website or other sites as part of a media kit or a feature news story. The following are some examples of copyright owners monitoring the Internet for possible infringement: - Dutton Children's Books threatened a lawsuit against a New Mexico State University student for using Winnie the Pooh illustrations on his home page. - Paramount Pictures sent warning letters to Star Trek fans for posting photos from the TV series on various Internet sites. - Corbis Corporation, which has millions of photos for licensing or purchase, threatened legal action against a retirement community for using a photo of an elderly couple on its website without paying the licensing fee. ----> In all cases, it is the obligation of the staff to determine conditions of use and whether a licensing fee should be paid. - The legal aspects are somewhat related to the concept of misappropriation of personality that is discussed under trademarks.
The Protection of Trademarks (17.5.1) -
The three basic guidelines for using trademarks are as follows: 1) Trademarks are proper adjectives and should be capitalized and followed by a generic noun or phrase. For example, Kleenex tissues or Band-Aid bandages. 2) Trademarks should not be pluralized or used in the possessive form. Saying "American Express's credit card" is improper. 3) Trademarks are never verbs. Saying "The client FedExed the package" violates the rule. In addition, organizations take the step of designating brand names and slogans with various marks. - The registered trademark symbol is a superscript, small capital "r" in a circle: ®. "Registered in U.S. Patent and Trademark Office" and "Reg. U.S. Pat. Off." may also be used. - A superscript "tm" in small capital letters indicates a trademark that isn't registered. ----> It represents a company's common-law claim to a right of trademark or a trademark for which registration is pending. An example is 3M™ Post-it® Notes. - A service mark is like a trademark, but it designates a service rather than a product, or is a logo. An "sm" in small capitals in a circle is the symbol for a registered service mark. -- If registration for a service mark is pending, "sm" should be used without the circle. ----> These symbols are used in advertising, product labeling, news releases, company brochures, and so on, to let the public and competitors know that a name, slogan, or symbol is protected by law. Many news releases, for example, include a standard statement at the end that gives a brief description of the company and its trademarks. EX. "Teva®, Simple®, and UGG® are registered trademarks of Deckers Outdoor Corporation." Public relations writers play an important role in protecting the trademarks of their employers. - As a professional, you will be expected to safeguard trademarks and respect other organizational trademarks in the following ways. TO PROTECT YOUR ORGANIZATIONS TRADEMARK - - Ensure that company trademarks are capitalized and used properly in all organizational literature and graphics. Lax supervision can cause loss of trademark protection. - Distribute trademark guidelines to editors and reporters and place advertisements in trade publications. - Educate employees as to what the organization's trademarks are and how to use them correctly. - Monitor the mass media and news websites to make certain that trademarks are used correctly. If they are not, send a gentle reminder. - Monitor publications to ensure that other organizations are not infringing on a registered trademark. If they are, the company's legal department should protest with letters and threats of possible lawsuits. - Make sure the trademark is actually being used. The law no longer permits an organization to hold a name in reserve. TO RESPECT OTHERS TRADEMARKS - - Ensure that the trademarks of other organizations are correctly used and properly noted. A good source is the International Trademark Association; it has a directory of more than 3,000 trademarks and service marks with their generic terms. The International Trademark Association also provides a helpful "Guide to Proper Trademark Use for Media, Internet and Publishing Professionals" on its website.
The Problem of Trademark Infringement (17.5.2) -
There are thousands of companies offering a multitude of products and services, so finding a trademark that is not already in use is extremely difficult. - The task is even more frustrating if a company wants to use a trademark on an international level. - The complexity of finding a new name, coupled with the attempts of many to capitalize on an already known trade name, has spawned a number of legal battles and lawsuits claiming trademark infringement. Here are some examples: - Entrepreneur magazine was awarded $337,000 in court damages after filing a trademark infringement lawsuit against a public relations firm that changed its name to "EntrepreneurPR." - Best Buy, which has trademarked "The Geek Squad," sued its online rival Newegg.com for using the term "Geek On" in its advertising. It also threatened to sue a Wisconsin priest for putting a "God Squad" sign on his car. - IKEA filed a cease-and-desist order against IKEA fan site IKEAHacking.net. The fan site gave tips on how to alter, that is "hack," IKEA furniture to alternative uses. IKEA said the website name infringed on its trademark by misusing the company name. The company later reconsidered, presumably thinking that the hacking site might actually contribute to increased sales. - Under Armour sued Nike for using the phrase "I Will" in some of its advertising. Under Armour had trademarked and used the two-word phrase in many marketing campaigns. Eventually the two sportswear giants settled the case out of court. - Facebook filed an infringement lawsuit against start-up PlaceBook (a travel research and booking site), which forced the site to change its name. PlaceBook is now TripTrace, and the new website is still in development. - Anheuser-Busch filed a trademark infringement suit against a North Carolina college student for producing and selling T-shirts that said "Nags Head, NC—King of Beaches" and "This Beach is for You." - Blue Sphere Inc. filed suit against Taylor Swift and American Greetings for use of the phrase "Lucky 13" on Swift-branded clothing and an American Greetings/Swift sweepstakes contest. Blue Sphere Inc., a regional clothing producer, had previously trademarked and used the phrase "Lucky 13". ----> In all of these cases, organizations claimed that their registered trademarks were being improperly exploited by others for commercial or organizational purposes. Sports franchises are particularly protective of their trademarks. - Teams in the National Football League and the National Basketball Association earn more than $3 billion annually just selling licensed merchandise. - Major college teams also rake in millions of dollars annually by licensing their logos to be placed on everything from beer mugs to T-shirts. Perhaps the most zealously guarded and expensive sports trademark is the Olympic rings. - Companies pay up to $100 million for the right to use the Olympic symbol in their marketing and public relations efforts. - The five rings featured in the logos for all Olympic Games - The Olympic rings logo is one of the world's most recognized brands. It is trademarked by the International Olympic Committee (IOC) and cannot be used without paying hefty licensing fees. The logo for the 2014 Sochi Olympics is also trademarked and can only be used by official sponsors, who pay up to $100 million in licensing fees. Here are the major guidelines that the courts use when considering cases of trademark infringement: - Has the defendant used a name as a way of capitalizing on the reputation of another organization's trademark—and does the defendant benefit from the original organization's investment in popularizing its trademark? - Is there an intent (real or otherwise) to create confusion in the public mind? Is there intent to imply a connection between the defendant's product and the item identified by trademark? - How similar are the two organizations? Are they providing the same kinds of products or services? - Has the original organization actively protected the trademark by publicizing it and by actually continuing to use it in connection with its products or services? - Is the trademark unique? A company with a trademark that merely describes a common product might be in trouble.
Trademark Law (17.5) -
What do the names Bubble Wrap, Cheetos, Dockers, eBay, Filet-O-Fish, LEGO, LILLY PULITZER, M&M'S, Q-tips, Ray-Ban, Tabasco, Velcro, Weedwacker, Xbox, and even Zippo have in common? Or what about "A diamond is forever" or "Just do it"? ----> They are all registered trademarks protected by law. Public relations writers must know how to use trademarks in their writing. - Failure to properly use a trademark frequently causes legal problems. ----> A trademark is a word, symbol, or slogan, used singly or in combination, that identifies a product's origin. According to Susan L. Cohen, writing in Editor & Publisher's annual trademark supplement, "It also serves as an indicator of quality, a kind of shorthand for consumers to use in recognizing goods in a complex marketplace." EX. Research indicates, for example, that a majority of Americans say brand quality takes precedence over price considerations. The concept of a trademark is nothing new. - The ancient Egyptians carved marks into the stones of the pyramids, and the craftsmen of the Middle Ages used guild marks to identify the source and quality of products. What is new, however, is the proliferation of trademarks and service marks in modern society. EX. Coca-Cola, Google, and Microsoft are some of the world's most recognized brands, but they are only some of more than 1 million active trademarks registered with the U.S. Patent and Trademark Office.
Working with Lawyers (17.7) -
You now have an overview of how various laws and government regulations affect your work as a public relations writer and specialist. - A basic knowledge of the law should help you do your work in a responsible and appropriate manner, but you also should realize that a smattering of knowledge can be dangerous. Laws and regulations can be complex. - You are not a trained attorney, so you should consult lawyers who are qualified to answer specialized questions regarding libel, copyright, trademarks, government regulation, and invasion of privacy. Your organization's legal staff or outside experts on retainer are good sources of information. - At the same time, remember that lawyers can tell you about the law, but they should not tell you what to say or how to say it. - They are legal experts, but not experts on effective writing and communication. They don't understand that the media want information now or that "no comment" is perceived as a guilty plea in the court of public opinion. Indeed, a major area of friction can be the clash between the legal and public relations departments. - Lawyers generally prefer to say little or nothing in most situations, whereas the public relations staff perceives its role as providing a steady flow of information and news about the organization to multiple publics. ----> The result is often a never-ending tug-of-war. - At the same time, it is essential that the legal and public relations staffs cooperate in the best interests of the organization. Great care must be taken in releasing information about litigation, labor negotiations, complex financial transactions, product recalls, and plant accidents. Numerous laws and regulations, to say nothing of liability considerations, affect what should or should not be said. EX. Out-of-court settlements, for example, often stipulate that the amount of the settlement will not be publicly disclosed. This is why it is often important to work with legal staff to draft news releases that provide information but keep within the bounds of any legal constraints. Your relations with legal counsel will be more pleasant and more productive if you keep abreast of new developments. - To do this, you should maintain a file of newspaper, magazine, and online articles that report on legal developments and decisions relating to public relations. This might include new regulatory guidelines, consent decrees, libel awards, trademark infringement suits, product recalls, and court decisions on employee privacy. - Trade publications or online newsletters are a good source of legal news that is of particular relevance to public relations. The following guidelines can go a long way in ensuring cooperation and mutual respect between the legal and public relations functions: - Each department should have a written definition of its responsibilities. - The heads of both departments should be equal in rank and should report to the organization's chief executive officer or executive vice president. - Both departments should be represented on key committees. - The legal counsel should keep the public relations staff up to date on legal problems involving the organization. - The public relations staff should keep the legal staff up to date on public issues and media concerns that will require an organizational response. - The departments should regard each other as allies, not opponents.
