A Checklist for Modern Marketers (continued)
In part 1 of this post, we covered the pre-campaign planning that helps marketers create a protective framework to avoid legal issues, maintain clear ownership of their content and operate more efficiently by having established processes in place. Now we’ll walk through campaign planning and post-campaign considerations to support marketers in properly using and protecting intellectual property (IP).
Campaign Planning
For the individual or team responsible for the IP clearance, it is important for them to verify where their marketing materials are coming from, what third-party IP is being used and to weigh the benefits of when to license materials compared with producing materials in-house.
1. Know where you’re sourcing your content
Every piece of content—whether visual, audio or written—carries potential legal risk if not properly cleared. The key is to pay attention to where you are getting your materials and develop a systematic review and approval processes, because even a single unlicensed element can expose your entire campaign to legal action.
Images
Visual content drives engagement but also represents high risk for IP violations. For example, someone can easily copy images online, and this accessibility makes it tempting to use content without proper verification. This is even more prevalent with the emerging challenges of artificial intelligence (AI). With the surge of AI-generated content, it can be hard for marketers to know whether they are publishing an image that was ethically sourced from the original creator or stolen from another source that the AI used. Always keep in mind that your ability to access online images does not equal permission to use the images.
Before using a photo:
- Check ownership or proper licensing for every image used
- Confirm that you have a license for the photo and that license covers your intended commercial use
- Ensure you have signed releases in place for recognizable people in images Document and maintain agreements that include license terms, restrictions and expiration dates
- Avoid using images found through generic web searches
- Be cautious with AI-generated content and consider using commercially licensed databases of AI-generated content
- Crediting the source does not provide you with legal protection
Written Content
While text might seem less risky than visual content, written materials carry their own IP considerations. Beyond obvious concerns like plagiarism, marketers must consider trademark implications of slogans and fair use limitations on quotes.
Fair use is perhaps the most misunderstood aspect of copyright law among marketers. While it provides limited protection for certain uses, it does not act as a blanket exception that justifies using any content.
Before implementing text in marketing materials:
- Verify originality of all copy and creative content
- Check that the slogans and taglines don’t infringe on existing trademarks
- Review content for potential defamation or privacy concerns
- Understand that fair use doctrine provides limited protection
- Recognize that fair use analysis is highly fact-specific
- Avoid relying on fair use claims without legal guidance
- Remember that commercial marketing purposes receive less fair use protection
- Consider different exceptions of fair use like commentary, criticism, research, scholarship and parody
- Obtain permission for any quoted material beyond fair use
Audio and Video
Video marketing can present tricky IP challenges because a single video can incorporate multiple protected elements. For instance, music licensing is complex as even a few brief clips may require proper clearance. This complexity multiplies when you consider sync rights, performance rights and the different licensing requirements across platforms.
Before incorporating video and audio content:
- Obtain licenses for music paired with visual content
- Verify that video footage is properly licensed for commercial use
- Review for any trademarked or copyrighted elements visible in video content
- Document all audio and visual licensing agreements
2. Understand licensing options
Not all content licensing is the same, and the licensing landscape ranges from free Creative Commons options to premium commercial licenses, each with different restrictions and use cases. Different marketing platforms will also have different rules and enforcement mechanisms.
- Explore different types of licenses (e.g. Creative Commons licenses) with different levels of use rights
- Understand the attribution-only requirements vs. commercial use limitations
- Evaluate commercial and AI licensing services for vetted, quality materials that have been approved by the original creator
- Maintain organized records of all licensing agreements
3. Create and protect your own brand materials
While you can obtain explicit permission before using third-party content and provide proper attribution to the original creator to acknowledge their work, the best way to avoid infringement is to create your own original content. Creating original content reduces reliance on third-party materials, builds valuable IP assets for your business and removes licensing costs.
- Federally register your trademark for your brand elements
- Establish clear brand guidelines for internal and external use
- Maintain records and evidence of your original creative work
Post Campaign
1. Know your insurance policy
Not all IP risks are created equal, and understanding your insurance policy can help allocate resources effectively. While prevention is the best strategy, preparing for potential IP disputes is equally important.
- Examine business insurance policies for IP liability coverage
- Produce response protocols for cease-and-desist letters
- Develop procedures for handling takedown notices
2. When IP issues arise: next steps
Upon discovering an IP issue, a proper and immediate response can prevent escalation while preserving options to resolve the issue.
- Stop using the disputed content
- Replace disputed content with approved substitutions
- Keep all records of the correspondence of the dispute
- Assess the scope of potential liability and involve legal counsel if appropriate
Takeaways
Navigating intellectual property in digital marketing requires constant vigilance, proper planning and systematic execution. This checklist provides a framework for protecting your organization while creating engaging marketing content. Remember that IP law is complex and constantly evolving, particularly in the digital space.
Investing in proper IP clearance and compliance can help reduce legal risk, make the launch of a campaign smoother and without interruptions, and ensure stronger relationships with content creators and partners. When in doubt, always consult with a qualified attorney who specializes in intellectual property.
Instead of viewing IP compliance as a constraint, forward-thinking marketers recognize IP as a competitive advantage that drives sustainable growth and creative excellence. By using this checklist as a tool, you’ll build robust processes that protect your organization while enabling creative, compelling marketing campaigns that get results without legal complications.
Jason Keener edited this article. He is the Managing Partner of Irwin IP LLP, now part of Miller Johnson.
