Promo - December 2008 - (Page 10)

The Players Joseph Lewczak Legal UGC REFRESHER Course Top legal issues to be aware of While some sources are sounding the death knell for user-generated content (or UGC), by most accounts it is still going strong, with both users and creators of UGC representing an increasing percentage of the overall Internet population in the next five years. Since it appears that UGC is not going anywhere anytime soon, it’s a good time for a brief refresher course on the major legal issues you are likely to encounter in structuring and running a UGC promotion. Follow these simple rules and you will be able to avoid the pitfalls that others have already encountered. 1. Structure the Promotion Correctly. First and foremost, make sure you have a legal promotion. Check with legal counsel—but remember, if you have all three elements of prize, chance and consideration, you have an illegal lottery. Don’t forget that allowing viewers to vote on submissions can create chance, and therefore possibly doom an otherwise legally acceptable UGC promotion. 2. Don’t Ask Consumers to Do Anything that May Cause Them or Others Harm. If you ask participants to do something dangerous as part of their submission, and they get injured while doing it, there is a very high degree of risk that you will get sued. The case law in this area has consistently held that if a sponsor induces participants to engage in activities that create an unreasonable risk of harm to the public that is foreseeable, the sponsor can be liable. 3. Create a Comprehensive Set of Rules. The contest rules serve as the contract between a sponsor and the entrant, and therefore will provide you with a great degree of protection against claims from participants if the rules are drafted appropriately. In the UGC context, you are going to want to be as specific as possible in terms of what participants can and cannot submit. The rules should include prohibitions against (1) using third-party materials; (2) showing anyone else in the video (without written permission); (3) copying any existing works; and (4) showing any activity that violates the law, is obscene, vulgar or defamatory, involves drug or alcohol use, is dangerous, or that disparages competitors. The rules should also contain a provision whereby the consumer represents that anything submitted by the consumer is the consumer’s original work and does not infringe the rights of any third parties. Finally, the rules should provide the sponsor with the right to use the submitted content. 4. Make Sure Your Rules Are Flexible. While your rules must be comprehensive, they should also be flexible. It’s not likely that most consumers really Continued on page 12 First and foremost, make sure you have a legal promotion. 10 December 2008 / WWW.PROMOMAGAZINE.COM / Promo http://WWW.PROMOMAGAZINE.COM

Table of Contents Feed for the Digital Edition of Promo - December 2008

Promo - December 2008 Contents Editor's Note Alternative Viewing UGC Refresher Course KFC Takes Wing Title Sharing the Holidays That Holiday Glow Wish List Commentary Ready to Eat Recession Busters Q&A: A Higher Mark Resource Center The Agency Center Gift Giving Index of Advertisers

Promo - December 2008

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