If You Don't Know Them You Should: Michael McSunas

Company name:
The esteemed law firm of Chambliss, Bahner & Stophel

A discription of your company:
Law firm

Responsibilities at your company:
I am the partner in the law firm. I also chair our firm's innovation committee, which is in charge of finding new ways of doing things that are both cost and time efficient and sometimes common sense. What can we do differently to better serve our clients, to make our jobs attorney easier, to market ourselves differently, etc.

What legal issues are more typically overlooked in today's advertising?
What isn't overlooked? Typically, I think people think they can use images of famous people or politicians without consent, they think they can do parodies of famous movies without consent, etc. I also think that claim substantiation can be overlooked. Do you have the substantiation to back up the claims you are making? Another really big thing that often can get overlooked in the excitement of winning a new client is the agency agreement - What are you agreeing to? What are responsible for? What do you own and what does the client own? Same with production agreements - have you secured all ownership rights for your client or does the production company retain some of the copyright?

What legal resources are available for creative professionals that you would recommend? Websites?
You can follow me on Twitter!!! http://twitter.com/AdLawGuy and read my always informative tweets or ask me questions. Some other good resources are http://www.adlawbyrequest.com, and http://www.manatt.com (has some good forms). Advertising Age and Ad Week also have some great articles on current legal issues.

Talk to me about "Brand Protection." What can one do legal in this respect to protect a brand?
You should always use your brand name as an adjective and never as a noun (this relates to trademark protection). Think of how people use Xerox generically as a verb to mean "photocopy." Xerox actually writes to publications to tell them not to use the term as a verb. Once a trademark becomes generecized through misuse, it can lose trademark protection and anyone can use it.

You should never allow anyone to use your brand name without permission either; that can lead to loss oftrademark protection as well. You have vigorously protect the mark. This includes people using your brand in a disparaging manner - for instance, McDonalds would not allow someone to portray Ronald McDonald drunk or littering.

<unless Crispin gets the account I think to myself>

What are the legal checklist that advertisers should go through when starting a campaign?
Trademark search (e.g., for the tagline), no copyright infringement (e.g. not copying someone else's work - movie, photography, music, etc.), have releases from everyone in the campaign and location releases from everyplace in the campaign, claim substantiation (can I prove all the claims I am making?)

What are the legal checklist a client should go through once recieving the work?
Make sure the agency has contracts with all the talent (and make sure the P&W with SAG is computed in a reasonable manner), make sure the agency has proper contracts with vendors/production houses the ensure that the client has ownership of the work. Most important, make sure you have a good indemnity provision in your contract with the agency so the agency is responsible for any mistakes, errors ,etc and make sure your agency had the money (or insurance) to back up that indemnity obligation.

Talk to me about using social media. What should one consider legally?
Advertising is advertising, whether it is on tv, print or in social media. The same laws apply. You probably have some leeway with social media if you areinteracting with your consumers (e.g. via Twitter). For instance, if an advertiser mentioned Angelina Jolie in tv ad without getting her consent, the advertiser most likely would be sued. If an advertiser mentioned Angelina Jolieon Twitter in a nonadvertising context (e.g., "She is a great actress and humanitarian."), the advertiser will probably be fine.

How are you using social media?
As mentioned above, I use Twitter religiously. You learn a lot of what is going on in the advertising world. I have also gained a few clients out of Twitter. One in particular is Red Square Agency, an amazing ad agency out of Mobile. Twitter has also led to interviews by Advertising Age and some other publications.

When you watch TV what makes you say "OMG, they could get sued for that!"
Lack of disclosures - you know the fine print you see at the bottom of print ads and tv commercials. I used to be in house counsel for GM's ad agency, so I am really attuned to that. I also shudder every time I see an ad with a lookalike of a famous person or politician. There were a series of ads by Acceptance Insurance that have a George Bush impersonator - that could have put them in a lot of hot water. But I guess sometimes you just have to weigh the risks versus rewards, and sometimes the rewards win out!

What aspect of advertising do you see as broken? Why and is it beyond repair?
I think it iscan be difficult for traditional advertisers to creatively compete with the new, innovative agencies who are willing to try anything and that embrace new technologies and mediums (e.g., social media, mobile). Some of the agencies owned by the holding companies are dedicated to just traditional media. One company does print/tv/media, another does digital, another doespublic relations, etc.They don't have the capability to do everything (or if they do, they still have to hand over the digital part to their digital agency brother. I have been excited and impressed that some traditional production houses (if that is even the right word) that are digital experts have branched out and now do creative themselves. They deal directly with the advertisers themselves, instead of being subcontractors. FirstBorn (http://www.firstbornmultimedia.com/) is a great example of this - they do incredible work.

The whole compensation model seems a bit broken too. Advertisers keep trying to lower fees and squeezing the agencies. The advertisers are basically saying, "Accept this lower fee or consider this our notice of termination." There has been some movement toward performance-based compensation, but that can be hard to measure.

I don't think anything is beyond repair. You will always find an agency with a new way of doing things. I think the days of summer fridays may be over though!

Copyright laws: Grey areas? Online and in print, where do you see the pitfalls? How best should one protect themselves?
My general rule of thumb is that the work is over 100 years old then it is in the "public domain", which means you can use it. But just because the original creation is in the public domain does not mean the all iterations of that creation are in the public domain. For instance, the book "Frankenstein" by Mary Shelley is in the public domain and those characters can be used in advertising but the Frankenstein character featured in Hollywood movies is not in the public domain - the green monster, with bolts coming out of his neck. One pitfall is that people mistakenly believe that if you are parodying something, it is not copyright infringement, Legally, "parody" does not mean a funny take off. Stay away from parodies, they almost always end in a lawsuit.

Creative copyrighting – how can someone do due diligence to insure against plagiarism?
If you are a creative and submitting work for consideration, you should put copyright notice on the work. This won't prevent someone from stealing your idea, but at least it puts people on notice that you are indeed claiming copyrights in your creation. Ideally, you would want to have a confidentiality and nondisclosure agreement with whoever is going to look at your creative, but realistically that is not going to happen. Obviously, the better records you keep, the easier it is for you to prove that someone has infringed your copyright.

Do you feel there are essential insurance types for agencies to carry in order to legally protect their business? If so which one(s)?
Professional Liability insurance and Errors and Omissions insurance are must haves!!! These would cover copyright infringement, invasion of privacy, trade libel, etc.

Talk to me about contracts. RFP's, scopes, creative briefs, gantt charts – where do agencies go wrong?
In my experience, the client can sometimes have unreasonable expectations and the agency can overpromise. With regard to contracts though, I think the biggest mistake is that agencies don't thoroughly read them. Theyget so excited about getting a new client that I often hear "Make as a few changes as possible" or sometimes they justsign them without completely understanding whatthey could be liable for. Then, with the relationship goes south, they realize that they did notprotect themselves at all.

Thoughts on mobile advertising?
I think the most impressive and creative advertising agency from Mobile is Red Square Agency http://www.redsquareagency.com/ (tee-hee). I am fascinated with mobile advertising, especially with the advent of applications for the iPhone. The one knock against some mobile advertising is that often the consumer is required to pay for it through fees charged by his provider (although there are many programs out there where such cost is paid by the sender) and that the consumer has to "opt in" (or agree to receive) such advertisements. But you cannot deny the growth and potential. Mobile advertising is subject to a whole different set of advertising rules (TCPA, CAN-SPAM Act) in addition to the traditional laws. More regulation means more work for us lawyers so I guess I should be grateful about that.

If and when obtaining legal representation what should an agency look/ask for?
An attorney that has both in house experience at an advertising agency and private practice experience - in short, me! Seriously, you need someone who understands the business. Someone who understands what it is like to be at an agency and have a client breathing down your neck. You need an attorney who will help you get to "yes" instead of one that immediately says "no." You need someone is pragmatic.

What's the best thing the freelancer/consultant can do to legally protect themselves?
Keep copious and detailed records of your work and correspondence. Read whatever an agency asks you to sign. Most likely you will be signing a document that says anything you create will be a work made for hire, which means the agency owns it, not you.

If I wasn't here, I'd be doing?
I would be a Bollywood star (you should see some of my dance moves)

Create a new superpower for yourself.
I have often thought about this. I want the power to decide who can drive and who can't. If someone is driving slow in the fast lane, I want the power to be able to say that that person is no longer allowed to drive. I would be fair but firm; I would probably remove about 20% of the drivers out there. I think I would be a hero to the whole country.

<certainly in my book!>

Bio and Social Media Links you wish people to connect to at.
https://twitter.com/AdLawGuy
http://www.cbslawfirm.com
email: MMcSunas@cbslawfirm.com

Thanks Michael, you're my Bollywood hero.

Posted on August 14, 2009 and filed under Advertising, Interview, Mobile.