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The Risks of Creative Pop Culture Advertising

By George Khoury, Esq. | Last updated on

Even though paying for it is painful, advertising can be a lot of fun. Thinking up catchy campaigns that will capture the attention of potential clients is a creative process that can pay off big time. Using pop culture references in advertising can often appeal to certain audiences, and if your ad is good, you might get lucky and it will go viral.

While intellectual property laws do allow for some fair use of others' creations, or even when there are no intellectual property laws at issue, going too far with pop culture can result in a public relations disaster.

When Pop Culture Advertising Backfires

One need not go back too far to recall the Pepsi commercial where a reality TV personality walked through a protest to hand a police officer a can of Pepsi. Then, all of a sudden, everyone comes together in peace and harmony thanks to Pepsi. Though this commercial was likely intended to reach the many millions of protesters that had taken the nation by storm in support of the Black Lives Matter movement, it missed the mark by so much it was heralded as a colossal failure.

So, since your firm isn't as large as Pepsi, and it probably can't afford to miss the mark that colossally, be wary about using controversial pop culture references in your advertising.

Pop Goes the Lawsuit

In addition to making sure your thumb is on the pulse of current pop culture before making a pop culture reference in your advertising, you may want to consult an IP attorney. Not all pop culture references are free to use under the fair use doctrine.

Copyrights and trademarks that are infringed upon for commercial gain can result in costly legal actions, just ask Nestle about their recent KitKat advertisement and the lawsuit filed against them by Atari. In filming a cute candy bar commercial, Nestle used the bars of a KitKat to form the blocks for the famous Atari classic game Breakout (a.k.a. Super Breakout -- which you can play online for free). Atari then filed a copyright infringement suit claiming Nestle exploited the name, look and feel of the classic game, as well as damaged the goodwill and reputation of Atari. Now, Nestle's lawyers are likely asking Atari's lawyers to give them a break.

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