These days, the rise of social media has produced a gray area for brands, as some unknowingly assume high risk in their pursuit to be topical and clever while attaching themselves to celebrities.
Enter real-time marketing, or RTM. I have spent enough hours in meetings with Legal to know one thing. Lawyers will rarely say you can't do something; they simply evaluate risk and offer advice.
Ultimately, the choice is yours, depending on the risk you're willing to take: low, medium or high.
For years, a three-tier risk system was benignly uncomplicated. Copyright, IP and use of likeness had been pretty simple in traditional marketing. You wouldn't use an R.E.M. song in a spot without the band's permission. Nor would you use Harrison Ford's photo in a print ad for a deodorant without his official involvement.
At last year's Grammys, the Twitterverse gushed over Arby's tweet at Pharrell, asking for the brand's hat back. Pharrell (who has his own "blurred lines" with intellectual property rights) took it in stride, but he could have easily sued. And won. Easily won. Easily, easily won.
But he wouldn't have gained much by winning; in fact, it would have shown he couldn't take a joke. So he had no choice other than to ride the wave, and pretend to be cool with it. In the end it worked out. But those in the know had a collective realization that Arby's had just dodged a bullet, both by Pharrell and the Grammys.
— Arby's (@Arbys) January 27, 2014
Let's look at it from another perspective. What if you were Pharrell? Would you be happy to have your fashion put on blast during the Grammys by a brand without proper payment? What about other brands that pay to use your name, likeness or music? Would you like your name forever associated with this moment, without compensation, burned into Google search results for "Arby's Twitter?" I wouldn't.
As Legal would say, that tweet was high risk for Arby's. The brand won, but in the same breath exposed itself to litigation that could have been damaging, both to their brand and financially. But what happens in other cases, when the celebrity is less than pleased by the shout-out, and does something about it?
Last year, Katherine Heigl sued pharmacy chain Duane Reade for using her name and likeness in a tweet. Here's the rub: She was coming out of their store at the time.
It was a $6 million misfire from the drugstore and failed on two levels. It used Katherine Heigl's photo without permission, and to a lesser extent, used a paparazzi shot for which they did not have usage rights.
It was not a tweet, but a 2011 press release (yes, you can get sued for a press release), that asked Jersey Shore's "The Situation" to stop wearing Abercrombie clothing. The failed publicity stunt and borrowed interest on a T-shirt design resulted in a $4 million suit from Sitch. In the end, he lost, but with two years of litigation and legal fees to consider, there were no winners here. But any lawyer worth his or her salt would have won this case for the plaintiff.
Even today, with all these examples, brands continue in this high-risk behavior.
With the exodus of One Direction singer Zayn Malik, some brands, including JobSite UK and Marmite, used the bandmates' names and likenesses to promote their own agenda.
— Jobsite UK (@JobsiteUK) March 25, 2015
— Marmite (@marmite) March 25, 2015
Social is confusing. Celebrity is confusing. Ownership of IP is confusing. But it's important for brands to remember that just because they are using the same tools as publishers, that doesn't make them publishers. And they are not granted the same permissions that publishers receive as journalists.
Let's take a step back: How would you feel if a brand used your likeness in an ad, without permission? It happened to this family when their Flickr image was used in Prague.
Celebrities deserve that same right to their image, even in social media. And so do the photographers who shoot them.
Legal aside, I hope the industry stops publishing these RTM tweets and stops feeding the beast. Many marketers agree that brands potentially will come off as desperate as they chase the elusive real-time tweet win.
So how should a brand navigate this real-time space? Rather than jump in with a "me too" tweet, brands should chase something more valuable—like creating unique content for fans to rally behind.
Think like a publisher, but remember that you are not. Forget the borrowed interest, and create your own. Brands do it all the time. Because sooner or later, the risk of RTM will not be worth the reward.