Let’s say you’re a creator who does product reviews on YouTube. You just reviewed something you really like. At the end of the review, you hold the product near your face, smile really big, and give a thumbs up. So, can the company that made the product use this final shot of you to advertise their product? Not unless they pay you. This is because you own your name and likeness, so no one can use them without your permission. That’s why there’s such a thing as a product endorsement contract.
The laws related to product endorsements are not uniform. In the US, both state laws and federal laws can cover different aspects of product endorsements. In other countries, some will have laws that cover product endorsements. Others won’t.
This article focuses on US laws related to product endorsements. If you’re reading this from another country, your country’s laws will almost certainly be different. In that case, sometimes, a contract can define how you and the product maker will work together. Other times, you’re out of luck. As always, if you have a specific question, no matter which country you’re in, the safest way to get the right answer is to ask a lawyer who specializes in this area (usually, media law).
But before we go into people endorsing products, we want to briefly touch how products can sometimes also endorse products.
- Trademarks Have an Endorsement Right
- Product Endorsements Fall Under State and Federal Laws
- State Product Endorsement Laws are Not Uniform
- Both State and Federal Agencies are Responsible for Enforcing Aspects of Product Endorsements
- Creators Sometimes Have to Worry About Not Violating Other People’s Publicity and Privacy Rights
- We’ll Go Over Endorsement Contracts Later
Trademarks Have an Endorsement Right
In the US, product endorsement can go from people to product, product to people, or product to product. Specifically, unless you get permission, you can’t use a trademark in a way that suggests the trademark owner’s sponsorship or endorsement.
For example, the Disney trademark conveys wholesomeness and family values. They have a right for the trademark to not be associated with an X-rated movie. If you violate that right, almost certainly Disney will come after you.
This doesn’t mean that you can never use a trademark without the owner’s permission. If your use of the mark falls under fair use, then you can use the mark. We covered trademark fair use in this article, so if you want to dig deeper into product-to-people or product-to-product endorsements, we encourage you to read the article.
For the rest of this article, we’ll focus on people-to-product endorsements.
Product Endorsements Fall Under State and Federal Laws
Product endorsements deal with using someone’s name or likeness with a product. The likeness can be a photo, a video, or even a drawing or painting.
In the US, both federal and state laws deal with some aspects of name or likeness. Your right to control your name or likeness comes from a right to publicity and a right to privacy.
In some states, these rights are in a statute. In other states, the rights are court-made (called common law rights). California, New York, and Tennessee tend to have the most well-developed laws. This is because California has the film industry, New York has the publishing, broadcasting, and advertising industries, and Tennessee has the music industry. These industries deal with celebrities a lot, so they have a lot more experience with endorsements.
Under federal law, your name and likeness are protected under the same law that protects trademarks—the Lanham Act. Sec. 43(a)(1)(A) of the Lanham act prevents the false association of a person with another person or goods or services. To violate this section, your name or likeness has to be used in a commercial manner.
State Product Endorsement Laws are Not Uniform
In some areas of law, legal experts work on model rules that the states can adopt quickly, often with minor tweaks. The result is that the state laws in those areas are fairly uniform. Sadly, the right to publicity and the right to privacy laws aren’t one of those areas. So, product endorsement laws can be very different from state to state.
Some states give a lot of protection to a person’s right to publicity. Other states give weaker or even no rights. In some states, this right is limited to famous people. In other states, the right only applies when a person’s name or likeness is used commercially along with goods or services. In yet other states, only a living person has this right.
The permission to use a person’s name or likeness is usually given through contracts. Because state laws are not uniform, the contracts will often pick California, New York, or Tennessee laws to use to interpret the contract. This is because, as mentioned earlier, these states have the most developed right to publicity and right to privacy laws. So, if issues come up, it’s easier to settle a dispute by researching the law or looking up court opinions to find an answer.
Both State and Federal Agencies are Responsible for Enforcing Aspects of Product Endorsements
Both federal and state agencies sometimes have the power to regulate product endorsements. These agencies look out for consumer rights. Truth in advertising is one of those rights they typically protect. So, as a creator, whenever you endorse a product, you have to be careful to be truthful.
The State’s Attorney General and the FTC Enforce False Advertising Violations
With states, it’s usually the Attorney General who enforces truth in advertising laws. With the federal government, it’s usually the Federal Trade Commission (FTC). Fortunately, the AG’s office and the FTC usually follow similar rules.
Generally, if you’ve been paid to endorse a product in an article, video, or similar, you have to tell your audience that it is paid advertising. A free product counts as payment. If you were paid to review a product and you hated it, you can’t say you loved it. If you or a family member works for the advertiser, you have to disclose this fact.
The FTC has some very helpful guidelines for creators for online advertising. Check the article if you have questions.
Basic Rule of Thumb to Avoid Trouble
Because so many states and a big federal agency can oversee false advertising laws, following their rules can seem intimidating. Fortunately, the rules boil down to:
- Follow the Golden Rule: treat others like how you’d like to be treated yourself
- Don’t lie
- Don’t cheat
- If in doubt, disclose
Then you should do fine.
Of course, we weren’t born yesterday. We know competition in the marketplace can be fierce. Some folks will want to be aggressive and walk right up to the line between legal and illegal. You can do that, of course. But if you do, we think you should run the question by a lawyer first. This way, you can be aggressive but still stay safe. A lawyer who practices advertising or media law should know the answers to most of your questions.
Creators Sometimes Have to Worry About Not Violating Other People’s Publicity and Privacy Rights
As a creator, of course you want to let large brands to pay you to use your name or likeness to endorse their products. But, sometimes you’re on the other side of getting permission. You might need permission from someone else for their name or likeness.
For example, if you want to create a video with other people in it, then you’ll need permission from them for their name or likeness. Sometimes, this means you’ll have to get permission. Or it has to be fair use (such as news reporting).
If you shoot photos, videos, or interview people, then there are standard releases you can use. For photos and videos, you can do an internet search for “standard release,” and you should see some free forms you can use. For interviews, use the key phrase “interview release form.” You might have to tweak the templates a little, but it’s worth it to have this safety net for yourself.
We’ll Go Over Endorsement Contracts Later
In this article, we explained how various laws give you a right to your name and likeness. No one else can use them to sell anything unless they have your permission. Usually, this means they have to pay you.
We only briefly mentioned that you give your permission through a contract. But we haven’t explained anything that might be in such a contract to endorse a product. We will, though. After all, endorsements are a large part of how a creator makes money. We’ll cover some typical contract terms in the third part of our series on how to run a creator business.
DISCLAIMER: This article does not constitute legal or accounting advice. Instead, it contains general information. The information gives you the background you’ll need to hit the ground running when you do go get advice from a lawyer or accountant. Only lawyers and accountants properly licensed in your state/country are qualified to give you legal or accounting advice.
Questions? Comments?
