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With the holiday season fast approaching (or really, already
here), an influx of holiday themed ads is upon us. As an
abundance of Santas, snowmen, reindeer, and presents pop up in
commercials, on billboards, and throughout social media, brands
should be mindful of some of the legal issues surrounding their
holiday choices. So, here are some examples to help you be
good, for goodness sake!
While familiar holiday jingles certainly
add festive cheer to a spot, you shouldn't assume that just
because you've been singing them all of your life that they are
free to use. While there are certainly some songs that are
likely in the public domain (check out, for example, "Jingle
Bells," which was first published in the 1850s), many of the
most familiar and popular songs are still protected by copyright.
If "Jingle Bell Rock" (made popular by Bobby Helms
in the 1950s) is in your plans, for example, you'd better make
sure that you've gotten the licenses you need. Remember,
just because the original composition is in the public domain, that
doesn't mean that subsequent versions of the song or the master
recording is as well.
Are you planning on using reindeer and snowmen in your holiday
ads? That should be fine, so long as you don't infringe
the copyright or trademark in some familiar holiday characters.
Some famous Christmas characters are
protected by trademark (as well as other rights). For
example, Classic Media (now DreamWorks Classics) owns both the
Rudolph the Red-Nosed Reindeer trademark and the Frosty the Snowman
trademark. You'd better watch out! In 2003, the
company asked a brewery to cease use of the name and label for an
ale titled "Rudolph's Reserve," citing trademark
protection over the popular character.
If you're planning on using Santa
Claus in your advertising, you may want to be
careful about what you say. A few years ago, one advertiser
got in hot water with consumers in the UK after suggesting that
Santa may not exist. You should make sure that you're
creating your own original version of the character and not copying
the costume, voice, or dialogue from a particular Santa depiction.
You should also pay attention to the context in which
you're using Santa. For example, The Distilled Spirits
Council, through its DISCUS Code, specifically states that,
"beverage alcohol advertising and marketing materials should
not contain the name of or depict Santa Claus."
Don't forget to pay attention to your Christmas
decorations and holiday-themed props as well.
While no two snowflakes may be the same, it's important
to consider the props you're using and whether they're
protected by copyright or other rights. Even though that may
look like a familiar gift-wrap design to you, or a run-of-the-mill
Santa climbing the chimney Christmas ornament, it may in fact be
protected by copyright.
Brands should be careful about the role of
religion in holiday commercials. Networks
may not accept commercials that push specific religious beliefs.
For example, several years ago, Fox rejected a Super Bowl ad
encouraging viewers to look up a specific Bible verse, because
"Fox Broadcasting Company does not accept advertising
from religious organizations for the purpose of advancing
particular beliefs or practices." It's also easy to
cause offense. You don't want to pull your campaign
because consumers feel like you're being insensitive to their
religious beliefs.
Finally, don't forget that your holiday
sales -- and all of the great discounts and promotions
that go along with them -- are governed by same rules that govern
sales the rest of the year.
This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.
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