Breakout 1A: Why Lawyers Nix Your Awesome Marketing Ideas (and How to Change That)

“What you don’t know can absolutely hurt you.” That’s the first thing that Kerry O’ Shea Gorgone said to start off her conference session. She then told a story of a Peace Corp volunteer who challenged a black mambo snake because he did not know what it was, the most deadly snake on earth. He stabbed it to death with an umbrella and only later did he realize the danger he could have faced if the snake had bit him. That’s like not knowing the pitfalls of law when you do your job as a PR professional.

Kerry is an attorney licensed in two states; her charge is to help people to make things legal. She doesn’t practice anymore, so she can’t help you with any legal issues you’ll encounter at conference, so stay legal.

“Most lawyers are not evil, we just want to keep you from danger.” Kerry stressed that point and shared a presentation filled with humor for very serious and expensive situations.

Problem #1: Using copyrighted content is risky. 1 picture X 1 use =$4000.

Problem #2: Your giveaway might actually be an illegal lottery. 1 giveaway = $102,000 fine. Pay to play is illegal and are only legal if the state is running them. “No purchase necessary should be stressed.”

Problem #3: Streaming video without planning.

Problem #4: Influencers don’t always disclose.

Use of memes can cause you to risk copyright infringement. Keep things in context when you use them, and be careful that you’re not risking a lawsuit. “Creative Commons” content might be stolen. Though someone may state it’s free to use, 71% of content on YouTube is stolen. Because you can’t know for sure, it’s very risky to use “Creative Common’s” content on your clients social media or website.

Solution #1: Create Your Own Content.

Take a look at what you’ve posted on Instagram or Snapchat. People love low quality, original imagery so use what you have to create your own content. It’s the safest option.

You must stress the no purchase necessary option to not be considered a lottery. Giveaways aren’t legal in Canada. Void where prohibited language is important. Know the difference between a giveaway and a contest. A giveaway is a game of chance. A contest involves skill. It doesn’t have to be an amazing skill, like whistling with your belly button, but it does involve some sort of skill. In a giveaway or sweepstakes, winners are selected at random. Lotteries are pay to play. Pay doesn’t have to mean money. Pay means giving something of value (your time, data, or even a Like). Picking a winner at random is potentially bad. Contests are easier to manage than giveaways, because it’s about skill. Giveaways are about “luck”.

A conference participant shared an example from real life giveaway, to which Kerry responded first by putting her fingers in her ears and saying “lalalalala”, (remember she doesn’t practice law anymore), then she provided the reason why the conference participant was at risk.

The disclaimer of “no purchase necessary” must be prominent.

Using the Iron Man competition as an example, Kerry interjected she of course does not run the Iron Man, however if Iron Man had their members pay additional fees for a “contest” which was actually a “giveaway”, that would be illegal.

Asking for basic contact information is fine in a giveaway, but anything beyond that is risky and could throw you into legal hot water.

Has anyone ever purchased coupons? You can from vending machines in Maryland. It turned out this was an illegal lottery. Pay to play, for coupons.

Solution #2: Use Contests of Skill not Games of Chance.

You can use the term “Skill” loosely. From a legal standpoint “Liking” is still doing something so be careful

Periscope and Facebook Live can be risky.

Solution #3: Plan your live stream the same way you would a produced video shoot. Storyboard! Look for hidden, or not so hidden noises (music, conversation), images you would not want to be seen, logos that you don’t own, Post crowd releases before streaming if you are working in a public setting. Get signed releases from interviewees. Check what’s happening in the background too. You don’t need permission to show trademark items, unless you’re saying something bad about them, but be careful anyway. Try not to use minors, or ask permission before you do.

Solution #4: The 4Ps of Disclosing: Placement, Proximity, Prominence, Presentation

Disclose in plain language. Its “free”, this is an “ad”, this was “sponsored”. Lose the hashtag when you’re talking about things you’re getting for free or sponsored. Put the disclosure near the top (don’t make me scroll to find it). Make it pop (use bold text). Make it unavoidable. Put it on the top of the page, in the shopping cart, everywhere you can to have the viewer see it and understand, this is an ad, or sponsored.

To avoid the legal pitfalls “Actively look for Potential Problems Ahead of Time”. It helps you avoid the danger that may be lurking like the black mambo snake.

Kerry O’Shea Gorgone develops marketing training programs in her role as senior program manager of enterprise learning at MarketProfs. She’s also a speaker, writer, attorney and educator. Kerry hosts the weekly Marketing Smarts podcast for MarketingProfs, and is a contributing writer for numerous sites, including The Huffington Post, Mark Schaefer’s {grow} blog, Social Media Explorer, Entrepreneur, Spin Sucks and MackCollier.com.