Opinion: A moment on marketing in the digital age

Celebrity lawyer Priyanka Khimani dissects the aspects of moment marketing in the digital age and how marketers can steer away from the many legal challenges that come with it.

With the growing popularity of social media in the last decade, moment marketing has undeniably become one of the most effective forms of promoting brands digitally. Simply put, moment marketing is a marketing technique used by brands primarily on social media or digital media platforms, to acquire momentum and benefit brand awareness and sales from the popularity of recent trending topics, news, or events. 

While moment marketing may sound like the latest buzzword, it has been around for a while and is employed effectively by some of the most iconic Indian brands. Amul, as an example, has published humorous topical print advertisements starting as early as 1966. The ‘Amul Butter Girl’, the brand’s mascot, has been used to create quick, engaging, and catchy advertisements that highlight significant recent events. Even the Mumbai Police does a stellar job often referencing recent movies and shows on Twitter while updating people on law-and-order-related happenings in the city. The Mumbai Traffic Police billboard at Babulnath junction in Mumbai is sure to crack you up on your drive home while they effectively communicate their message on safe driving practices at the same time and most recently, it would’ve been hard for anyone to have missed Zomato, Burger King, Pepsi, and several other companies, successfully employ current trends in their social media and digital marketing campaigns, to reach their target audiences rather rapidly and efficiently.

Although moment marketing is a popular choice amongst brands when it comes to the promotion of their products or services, it often makes brands wonder, and rightly so, if there are any potential legal risks in employing this form of marketing. While the billboards and trending campaigns are widely talked about, a lesser-known fact is all the behind-the-scenes work that goes into not only running clearances but, at times, also responding to all kinds of cease-and-desist notices stemming from such moment marketing. 

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The most interesting and commonly underestimated risk in moment marketing is the infringement of third party rights. This could be the unauthorised use of celebrity rights of famous personalities as well as that of the intellectual property rights of owners or creators of copyright and trademarks. The usual pitfalls arise when campaigns employ lyrics or hook lines of popular songs or borrow famous dialogues from iconic movies or simply appropriate a personality’s life event or moment and make it their own. All these aspects – lyrics, dialogues, life events or moments, broadly fall within the realm of protectable rights and belong to third parties, either in the form of copyright, trademarks or personality rights, as the case may be.

So, before a brand or creator decides to start creating their next quirky, cheeky, or witty-moment marketing campaign, it is worth understanding some legalese surrounding this. Given that most aspects of any trending moment marketing campaign tend to involve intellectual property belonging to someone else, it becomes important to first access the boundaries of using such material; when is it permissible to use it without any express authorisation; and where does one draw the line when it comes to making derivative content based on someone else’s work and claim it as your own.

A few of the most common fallbacks relied upon by brands and creators are de minimis, fair use, or the fact that they believe the third-party material is already in the public domain. While all of these are defences readily available to moment marketers, it might be worth assessing whether your campaign actually meets the test to qualify for one or more of these defences. To avoid any heartache or embarrassment, stop and ask yourself these quick questions before taking your campaign to live:

• What is your motive or intent behind borrowing someone else’s work without authorization? 
• Are you hoping to piggyback ride on the popularity or recall value of the borrowed work? 
• What is the overall impression that the campaign hopes to leave in the minds of the audience?
• Is the borrowed extract an essential part of the material being borrowed?

If the answer to one or more of these is yes, you might need to stop and take a closer look at putting some reasonable authorisation in place.  

Another quick tip to reflect on is assessing commercial use as opposed to commercial gain. Use of third-party works for charitable or purely educational purposes tends to readily qualify for ‘de minimis’ or ‘fair use’ in the absence of any express authorisation from a such third party. On the other hand, the lack of commercial gain alone will not necessarily qualify as fair use, especially if the answer to one or more of the above questions is yes.

Lastly, just because something’s on the internet doesn’t mean it is in the public domain. For something to truly fall within the public domain, the term of all intellectual property protection in the works and rights being exploited must have come to an end. This needs a combination of multiple searches across the internet and applicable databases and platforms to ascertain whether a piece of work is in the public domain and whether it can be used freely. 

With the rise in more aggressive protection and enforcement of intellectual property and privacy, the Advertising Standards Council of India (ASCI) too has attempted to regulate certain aspects of advertising in the digital space through its self-regulation code. For instance, ASCI now prescribes that advertisements cannot contain any such references to a person, firm or institution which tends to cause ridicule or disrepute. In fact, ASCI may require the advertiser or agency to produce explicit permission from the person, firm or institution referred to in such advertisement. 

Another fun fact is that several Indian celebrities, such as Deepika Padukone, Alia Bhatt and even the Late Lata Mangeshkar, have registered their names as trademarks so it is safe to say that when it comes to moment marketing, what one might think as seemingly free-to-use may actually land you in hot water, not to mention a costly legal affair and therefore, marketers will need to find a balance between creativity and creative ‘liberties’ when designing their campaigns.

This article on moment marketing is penned by Priyanka Khimani, Founder - Khimani & Associates, with inputs from Yashka Banker and Aakanksha Uthaiah.