With the holiday season fast approaching (or really, already here), an influx of holiday themed ads is upon us. As an abundance of Santas, snowmen, reindeer, and presents pop up in commercials, on billboards, and throughout social media, brands should be mindful of some of the legal issues surrounding their holiday choices. So, here are some examples to help you be good, for goodness sake!
While familiar holiday jingles certainly add festive cheer to a spot, you shouldn't assume that just because you've been singing them all of your life that they are free to use. While there are certainly some songs that are likely in the public domain (check out, for example, "Jingle Bells," which was first published in the 1850s), many of the most familiar and popular songs are still protected by copyright. If "Jingle Bell Rock" (made popular by Bobby Helms in the 1950s) is in your plans, for example, you'd better make sure that you've gotten the licenses you need. Remember, just because the original composition is in the public domain, that doesn't mean that subsequent versions of the song or the master recording is as well.
Are you planning on using reindeer and snowmen in your holiday ads? That should be fine, so long as you don't infringe the copyright or trademark in some familiar holiday characters. Some famous Christmas characters are protected by trademark (as well as other rights). For example, Classic Media (now DreamWorks Classics) owns both the Rudolph the Red-Nosed Reindeer trademark and the Frosty the Snowman trademark. You'd better watch out! In 2003, the company asked a brewery to cease use of the name and label for an ale titled “Rudolph’s Reserve,” citing trademark protection over the popular character.
If you're planning on using Santa Claus in your advertising, you may want to be careful about what you say. A few years ago, one advertiser got in hot water with consumers in the UK after suggesting that Santa may not exist. You should make sure that you're creating your own original version of the character and not copying the costume, voice, or dialogue from a particular Santa depiction. You should also pay attention to the context in which you're using Santa. For example, The Distilled Spirits Council, through its DISCUS Code, specifically states that, “beverage alcohol advertising and marketing materials should not contain the name of or depict Santa Claus.”
Don't forget to pay attention to your Christmas decorations and holiday-themed props as well. While no two snowflakes may be the same, it's important to consider the props you're using and whether they're protected by copyright or other rights. Even though that may look like a familiar gift-wrap design to you, or a run-of-the-mill Santa climbing the chimney Christmas ornament, it may in fact be protected by copyright.
Brands should be careful about the role of religion in holiday commercials. Networks may not accept commercials that push specific religious beliefs. For example, several years ago, Fox rejected a Super Bowl ad encouraging viewers to look up a specific Bible verse, because “Fox Broadcasting Company does not accept advertising from religious organizations for the purpose of advancing particular beliefs or practices.” It's also easy to cause offense. You don't want to pull your campaign because consumers feel like you're being insensitive to their religious beliefs.
Finally, don't forget that your holiday sales -- and all of the great discounts and promotions that go along with them -- are governed by same rules that govern sales the rest of the year.