Advertising, Marketing & Promotions Alert ... - Davis & Gilbert LLP

rarely encountered in the company's own internal business operations or its client projects. Advertising, PR and consulting companies are just different ...
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APRIL 2013


>> ALERT BUSINESS BOOKS AND BRAND BUILDING: RIGHTS AND PERMISSIONS More companies are recognizing the value of creating and publishing, both to the trade book public and to a more limited group of business contacts and prospects, what we view as “books,” be they print or electronic. In doing this, companies hope both to increase reputation in a broad group of readers, which likely includes clients and prospective clients, and to build brand recognition for the company’s own name. The companies which have embarked on this type of promotional activity are not confined to a single industry. Rather, several of them have identified this as a cost effective (and occasionally profitable) form of brand building, with advertising, public relations and consulting companies having pursued these opportunities for the longest amount of time. Launching a publishing program requires business and legal planning if it is to succeed and avoid the pitfalls of legal risks. How does the company identify the risks and avoid or diminish them? It takes advance planning and new business models put in place before the launch of the publishing program, not after legal claims and related business problems arise. Issues that companies should consider include: 1) Book Subject Matter

THE BOTTOM LINE No single overview can adequately address all book-related risks for company books. However, as described in this Alert, there are several issues to be considered in advance of company book projects to avoid costly crises later in the course of the project. The avoidance of such crises and any third-party claims requires thoughtful advance planning by all parties involved and a clear understanding of their duties and legal responsibilities to achieve the company’s aim, no matter what it is.

2) Author/Co-Author/ Acknowledgements and Credits 3) Copyright Ownership and Permissions 4) Trademark and Trade Dress Ownership, Licenses, and Permissions 5) Publishing Business Model — Trade Publisher, Subsidy Publisher and Self-Publishing 6) Public Relations, Talent and Literary Agents 7) Indemnities, Claims and Insurance If publishing books has never been a company’s business, it likely has never had to do the analysis required to properly address these issues,

because these book-related issues are rarely encountered in the company’s own internal business operations or its client projects. Advertising, PR and consulting companies are just different businesses from publishing companies. With the warning that all these subjects of consideration are complicated, the most important considerations are identified below.

BOOK SUBJECT MATTER Can your company write and publish this book? If your company is not working for a governmental entity client where there are specific and strict prohibitions and regulations, the

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Attorney Advertising 1194

APRIL 2013

ADVERTISING, MARKETING & PROMOTIONS >> ALERT considerations start with provisions in the company’s contracts with third parties – principally clients, but also licensors, suppliers, freelancers and others who produce content, but are not company employees. Virtually every client contract in certain industries will have extensive ownership, confidentiality and nondisclosure requirements that need to be reviewed, preferably in advance of investing in the creation of any book which is based on the company’s work with those third parties. Without doubt, client work is the most difficult to deal with if the company wishes to use or disclose the work in its book, but does not wish to lose or alienate the client. The third party involved may grant or refuse permission or require the right to review those parts of the book that deal with it prior to book publication. Although some third parties will always require review of the final manuscript, it is usually better to discuss permissions before beginning to create a book which may e