This post was originally published as a Guest Post on the designRoom Creative Blog (http://www.designroom.com) as a legal perspective on the use of words (“copy”) in marketing and advertising.  Thanks to the team at designRoomCreative for asking me to contribute my thoughts.

My friends at designRoom have creatively chosen the theme of words, copy, and content for this month’s designRoomCreative Blog.  Then they graciously asked me to share some thoughts about the legal questions that word choice can create in marketing, branding or advertising.  I’m always happy to get the chance to talk (write) about protecting original creative work, and the use and choice of words and content raise some specific legal issues to think about early in the creative process.  These are some of the ones that I see most often in my practice:

Trademarks:  A word, or group of words strung together, used to brand a product or company, usually serve as a trademark.  This means that the end buyer of some product or service identifies the word or phrase in connection with whomever sells it.  Trademarks are valuable to companies.  Sometimes just as valuable, or more so, that the company’s other assets.  So they need to be legally protected.  Start the process of clearing a potential brand trademark early by conducting a comprehensive trademark search.  And, once the decision has been made about a brand choice (after clearance, of course!), take the necessary steps to protect it with a federal trademark registration.  The two areas where we see clients most frequently get into trouble here are:

• Failure to perform appropriate trademark clearance (a GoDaddy or other domain name or Google search doesn’t cover it)
• Failure to start the clearance work early enough in the creative process

Save some time, money, and aggravation by starting this process at the beginning of brand ideation.  And know and use the right tools to do the job properly.

Copyright:  An original expression of creative written content – including words, even words used for marketing purposes – is subject to copyright law protection from the time it is created.  This obviously has huge implications for content marketers, ad copy writers, and anyone else who writes creatively.  It’s important to know when this matters in a business context (more frequently than you think), and, when it does, who actually owns the copyright to the completed work.  It would take a lot of digital real estate to discuss all the possible ways this can create legal implications, so let’s just focus on one simple rule:  whoever created the content OWNS the content.  Here are the most common scenarios of copyright ownership that arise:

• You or someone you employ (actually employ, not use as a contractor) creates the content – YOU OWN THE CONTENT
• You engage a freelancer or independent contractor to create content – THEY (NOT YOU) OWN THE CONTENT
• You engage an Agency or a content factory to create content – THEY (NOT YOU) OWN THE CONTENT

Before I get a bunch of panicked comments or email about the last two scenarios, a clarification:  the only way U.S. copyright law enables you to own copyright in work someone else creates for you – even if you have paid for it – is in a written document that says so, signed by the content creator.  So get one.  In advance, before content creation, ideally.  If not then, immediately afterward.  And if you frequently procure content from outside resources, have standard agreement documents in place to secure these rights as a standard business process.

Ad Claims:  Avoiding misleading or false claims in ad copy is, legally, the responsibility of everyone involved in the ad creation process.  You need the best degree of confidence possible that the words you choose to describe a product’s attributes are accurate.  It goes without saying that using words that knowingly create false claims is unlawful; what’s less clear is who is responsible if ad copy is misleading or a claim is not properly verified.  The short answer is that everyone involved in the process can be liable.  Ask a lot of questions.  Assemble a lot of documentation.  Be ready when someone asks how you know the product can do what you said it can, or why you believed it could.

Words have weight, legally speaking.  But now you know a little more about when and why, and how to be ready.