(Photo by Brands&People on Unsplash)
Do you ever notice your favorite athlete wearing his signature shoe when he appears in a soda commercial? Or do you wonder why every car in an insurance commercial is missing a logo?
Consumers want to see themselves in a commercial so they see why they should buy the product. The environment where an ad takes place should resemble an environment familiar to the consumer. This environment is our everyday life, which is filled with intellectual property (IP) owned by different companies or individuals.
From a marketing perspective, a commercial is more authentic when it features other brands and products that are natural to the commercial’s story. Sometimes, this means including products from other companies in another company’s commercial.
A commercial should show viewers a relatable situation so they can see themselves buying that product. Including other brands can also provide a mutual benefit to both businesses. However, legally including other products requires licensing intellectual property rights.
During my previous career working as a Senior Advertising Lead (developing of commercials and other forms of advertising) in the sports industry, I was involved in the licensing of other brands’ IP to feature in our commercials. In this context, third-party IP is any IP that is not owned by the company whose commercial it is.
This process introduced me to IP and inspired me to go to law school at Loyola University Chicago with its Intellectual Property Law Program. But how exactly does advertising tie into IP? Here is what I learned from my experience.
Benefits of Licensing Others’ Intellectual Property – Let’s Make a Deal
Securing permission to feature others’ IP makes an authentic commercial possible. For example, if you feature a bedroom of a young sports fan, you would want to show a poster of an actual basketball player, wearing her actual team uniform and her signature shoes. On the other hand, if the bedroom featured a generic basketball player wearing the uniform of a made-up team and all white sneakers, the kid’s room would not feel real anymore.
Licensing third-party IP involves working with the company who owned the IP to obtain its consent to feature its brand or products in our commercials. Sometimes, it is a simple process because the other company is excited to see its brand featured in a commercial and it is free exposure.
Other cases involve back-and-forth negotiations to highlight the benefit for the company to grant this permission. This back-and-forth may require featuring the other company’s product for a certain amount of time. The negotiations could also require airing the commercial for a specified period of time, so the other company receives fair value for granting permission to feature its IP. Some companies are particular about how their products and brands are featured so those negotiations focus on complying with their restrictions when featuring their product in our commercials.
Before going back to law school, the process of licensing IP for other brands was an enjoyable aspect of my job. It required negotiation skills to show another company the benefit to them by including their product in a commercial. Most importantly, it required a keen eye to make sure nothing was missed…
Peeling the Intellectual Property Onion
Licensing IP rights can be like peeling the layers of onion.
Going back to the example of a poster of a basketball player, it starts by making sure you have the right to feature the player herself. An athlete has the right for his or her own name, image, and likeness to be featured in marketing.
After that you need to consider who owns the photo on the poster. Does the original photographer have the rights? Did the photographer transfer those rights to the company that made the poster? Is the player wearing a team jersey? Has that team or sports league given permission to feature their IP in the poster? Is there a tattoo on the player’s arm that needs to be licensed from the tattoo artist? The issue around IP rights of tattoo artwork is the source of much litigation and legal discussions recently so it is important to make sure you have permission from all parties whose IP may be featured in a commercial.
When making a commercial, I always asked questions about IP that may be owned by another party and was proactive in working to successfully license any IP that we did not own. I was always peeling back that onion to make sure there were no layers that we did not have the permission to include.
However, there were occasions when it was not possible to get the necessary permissions from other brands.
Handling Uncleared IP – Get Rid of It!
Because of potential issues with featuring any third-party IP without consent, it is best to find solutions to remove any unauthorized IP without obstructing the rest of the commercial.
One option could be adding a blur mark on someone’s shirt or over someone’s face to cover unauthorized IP, but it would distract from the rest of the commercial. Instead, you should find other seamless ways to eliminate unauthorized products and brands from a commercial. While it may not be ideal, it is always better to include basic, non-branded products than risk featuring unlicensed IP. If third-party IP is not properly licensed, featuring that brand could be considered trademark infringement or copyright infringement.
The next time you watch a commercial, pay attention to whether any other brands or logos are featured. Whether they were included or not, there was a marketing and a legal team who worked behind the scenes to clear IP and ensure nothing unauthorized was included.
Alexander Wood
Assistant Blogger
Loyola University Chicago School of Law, J.D. 2025