law books

Let’s face it. Beyond the initial startup years or a major industry outreach campaign, most marketers and small business people don’t spend a lot of time or money on the legal side of marketing communications. But doing what you’ve always done, or what you see others do, can leave you red-faced — or worse, in court — when guidelines, laws, regulations or enforcement levels change while you’re not paying attention.

Although decidedly non-lawyers here, we see certain questions arise regularly for our clients in fast-changing arenas. Here are three questions to ask yourself to see if you may need to be paying more attention.

1. Green Guidelines

Do you use terms such as “green,” “sustainability,” “recyclable,” or “biodegradable” in your packaging, advertising or news releases? If so, the FTC’s new Green Guidelines are widely expected to increase enforcement and litigation around green issues. If being “green” is why you do what you do, the damage to your reputation could be significant if you miss changes in the works.

2. Recording others

Are you recording customer testimonials or interviewing others as a podcaster? You may record others, but you may need to get their consent to record the interview. Many states require all parties to consent for recording audio. Some states also prohibit hidden cameras. State by state law can change quickly. For a quick overview, see the RCFP’s Tape-Recording Laws at a Glance.

3. Quoting others, or using their images

Do you or your employees quote interesting items from others in your corporate blog, white papers or advertising? Short quotations will usually be fair use, not copyright infringement, but there are no hard and fast rules in the digital age. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative.” The blog’s author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well. The Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107).

There are, of course, myriad other legal issues surrounding Truth-in-Advertising laws, product labeling requirements, online advertising, green claims, intellectual property, and advertising restrictions for specific products such as alcohol, but if you were comfortable answering the three questions above about fast-changing legal issues, chances are you are on top of your game. In a future post, we’ll look at how to use time-saving digital tools and techniques for tracking legal issues relevant to your company and industry, so subscribe by email or RSS feed above to be sure not to miss out.

Note: Nothing written on this blog is a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you’re being threatened with a lawsuit.