Three Best Practices to Prevent Brands and Influencers from Going Offside During the Super Bowl

Client Alert

With the Super Bowl quickly approaching, brands, advertisers, influencers and die-hard fans are getting ready for the big game. The sheer volume of content—including popular dances, trends and music—created to promote products and services in front of one of the largest audiences of the year nurtures an environment rife with legal risks for both creators and brands working with creators.  

The explosive growth of digital advertising, especially on social media platforms, has amplified the creator space for collaborations with brands while inviting increasing scrutiny on potential violations of intellectual property rights and false and misleading advertising.  

Here are a few guidelines for creators and brands to consider in mitigating legal and regulatory risks when creating and sharing content in connection with Super Bowl LVIII.

  1. Adequately disclose material connection

    One of the key principles established by the Federal Trade Commission (FTC) and further clarified in its updated Endorsement Guides is that, where there is a “material connection” between a creator and the brand or product that is advertised or promoted in the creator’s content, such connection must be clearly and conspicuously disclosed. Examples of material connections include monetary payments, gift cards, sweepstakes entries, receiving free PR packages and receiving discounted products or services, as well as family, employee or business relationships.

    To meet the FTC’s “clear and conspicuous” definition, the disclosure should be difficult to miss and easily understandable. Best practices include (1) making both visual and audio disclosures if the advertising message is presented in a video, or visual disclosure only if the advertising message is embodied in a photo or just text and (2) using simple, unambiguous language in the disclosure. Many popular sharing platforms have built-in mechanisms that denote a post as a paid partnership, but relying on such mechanisms may not by sufficient. Acceptable disclosures include “#ad,” “paid ad,” “#[brand]_partner” and “Sponsored by [brand].”

    Creators should avoid using abbreviations or general terms that do not provide enough information about the nature of the material connection (other than “ad” or “paid ad”, which terms appear to be universally accepted by regulators as adequate disclosure). For example, if a Tik Tok creator received a free ticket from the NFL and posts pre-game content on her account, the creator should disclose that she has a relationship with the NFL (e.g., “#NFL_Partner” or “NFL gave me a free ticket to the Super Bowl”).  The FTC has specifically stated that #comped” or “hosted” for non-paid endorsements of events is not clear enough without also including the brand that provided the free item.  

    The placement of the disclosure is equally important. Even the best disclosure language would be ineffective if buried at the end of a long string of hashtags, or behind a link that most people ignore. For this reason, the FTC advised that that the disclosure be “unavoidable.” Creators should ensure that the disclosure appears close to the advertising message, without anyone having to click on a link or scroll down.

    Both the creator and the brand have responsibility to prevent deceptive advertisements made via creator postings. It is, therefore, important for brands and creators to work together to align on what and how the disclosure should be made in a way that is consistent with the FTC’s guidance without sacrificing the authentic voice of the creators.

  2. Do not lie or include any false or misleading message

    Any claims included in creator content should be true and fully substantiated. For example, a creator should not state that a sports drink is the number one rated sports drink in America if there is no actual, reputable survey to back up such claim. In addition, the same creator should not extol the thirst-quenching property of the sports drink if the creator does not like sports drinks at all. Violating these principles, which are discussed in the FTC’s Endorsement Guides as well as its companion document, FTC’s Endorsement Guides: What People Are Asking, could expose both the creator and the brand to legal risk for engaging in false and misleading advertising.

    For creators, this means that they should not promote any products that the creators have not used in the past or do not like independently, or say anything that is not from the creators’ actual personal experience. Additionally, any description of the product or claim about the product being promoted should be discussed with the brand to make sure such description or claim is accurate and substantiated.

    The FTC takes the position that any advertising message included in a creator's content that the brand pays for is attributable to the brand. To mitigate legal risk of participating in the publication and dissemination of false or deceptive messages, brands should engage in due diligence in selecting creators that have personal interactions with the brands’ products and provide clear guidance on the claims that can be used. Ideally, reviewing creator content prior to posting would avoid unnecessary mishaps with false or misleading messages. If such prior review is not possible or practicable, then brands should review the content soon after posting and work with the creator to take down or correct any false or misleading content.

  3. Be careful to avoid intellectual property infringement

    Commercial activity that references protected trademarks may be considered a violation of the owner’s trademark rights. While there are permissible fair use protections under trademark law, the National Football League (NFL) takes a broad view of its intellectual property rights in all of its trademarks and aggressively pursues any unlicensed use of such trademarks. Common trademarks to avoid include the following: Super Bowl, Super Sunday, the Super Bowl logo, NFL, AFC, NFC, National Football League, American Football Conference, National Football Conference, and any team name or team logo.

    While the NFL has trademarked many other phrases and nicknames referring to the Super Bowl, the one commonly used phrase that can be used without a trademark license is the “Big Game.” However, even if a content creator or brand is not using one of the protected marks owned by the NFL, it’s important to avoid implication of any sponsorship or association with the NFL, Super Bowl or any NFL teams when creating any marketing content.

    In addition to avoiding the use of NFL trademarks, there are potentially significant risks with using any NFL player names, pictures or likenesses in creator content associated with a brand. Players’ names, pictures and likenesses are generally protected by various state right of publicity laws, some of which are statutory, and some of which are based on common law. Any commercial use of such players’ names, pictures or likenesses without their consent could result in hefty damages.

    Finally, creators should clear all third-party copyrighted material or refrain from using any such material that is not cleared. For example, music has become a necessary component in crafting video content that grabs and keeps the attention of social media denizens, but most music used by creators is not original music composed and performed by such creators. Obtaining music licenses is complicated and expensive, often requiring multiple licenses. Fortunately, many of the popular content-creation platforms allow creators to use music that has been licensed by such platforms for limited use. Note, however, that such licenses may not extend to commercial use by brands.

Why It Matters

We as consumers have all benefitted from the proliferation and variety of creator content to some extent. There is greater coverage of events like the Super Bowl across a variety of platforms that reach a wide array of audiences. Creator content, however, can also engender false or misleading messages that could result in consumer harm, intentionally and unintentionally, and infringement of third-party rights. Creators and brands that work with creators should both take note of the potential risks and guidelines to mitigate such risks as discussed above, which will ultimately foster a more dynamic digital economy rooted in consumer trust.

For additional discussion on the FTC’s Endorsement Guides, see An In-Depth Look at the FTC’s Updates to the Endorsement Guides—Part 1 of 2 and An In-Depth Look at the FTC’s Updates to the Endorsement Guides—Part 2 of 2.



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