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Closing a deal with an industry leader is exciting, and spreading the word about your involvement with such an organization can feel like the right thing to do for your brand’s credibility.

You want to reference their name and logo in your marketing materials or cite their quotes in press releases and case studies. While this seems like a great idea, the excitement could be dampened by the other party's inherent reluctance to share in your publicity.

Organizations are generally cautious about their brand image and often integrate a publicity clause into their contracts to control where, when, and how other businesses can leverage their name, logo, or other identifying information in public communication.

Violating a contract’s publicity clause can put your company at significant risk, potentially turning a celebratory partnership into a legal and PR nightmare.

This guide explores all you should know about publicity clauses, from what they entail to how to review and negotiate them effectively.

What is a publicity clause?

In simple terms, a publicity clause is a set of rules written into a contract that controls how information about the contract or the people involved can be shared publicly. Think of it as a "control mechanism" or a "permission slip" for talking about the deal. These clauses are common in various agreements, from business partnerships to employment contracts.

It's like being told, "You can share this information, but only in these ways."

Here are typical scenarios where a publicity clause plays a role:

  • Celebrity endorsement: If an athlete signs a deal to promote a new brand of sneakers. The contract likely has a publicity clause outlining how the athlete can talk about the sneakers, what they can say in interviews, and even what photos they can post on social media. This protects both the athlete's image and the brand's reputation.
  • A business merger: When two companies merge, a lot of sensitive financial information is often involved. A publicity clause might regulate how much either company can reveal about the merger's terms, the negotiations, or even the fact that the merger is happening at all. This helps maintain confidentiality until everything is finalized.
  • A consulting contract: Let’s say a consultant is hired to advise a company on a specific project. The publicity clause might clarify how much the consultant can share about their work, whether they can use the company's name in their portfolio, and if they need approval before publishing any articles or white papers related to the project. This safeguards the confidentiality of the company's information and ensures the consultant doesn't misuse or misrepresent their involvement with the company.
Also read: 6 essential types of contract clauses you need to know

Why is the publicity clause important?

The publicity clause serves several crucial purposes for parties on both sides of the contract. Here are the primary reasons why most organizations consider it paramount.

#1 Protecting reputation and brand image

Established organizations invest significant resources into building their public image and reputation. This carefully cultivated identity is a major asset that influences consumer perception, market value, and competitive advantage.

The publicity clause gives these businesses considerable control over who leverages their branding as well as where, when, and how it is done, ensuring that partnering companies do not misuse or misrepresent their involvement.

“As a lawyer, when dealing with customers, influencers, or people outside or inside of your business, the concept of risk mitigation is always present in your mind. However, you need to view the situation not only through the lens of risk mitigation but also with a focus on building your brand and customer reputation. This should be at the forefront of your mind anytime you're dealing with people both outside and inside the organization.”

~Charlotte Morgan, CLO & CAO, Adore Me

Leveraging Entrepreneurial Experience as a CLO

#2 Controlling the narrative

A publicity clause allows both parties to control how the information about their agreement is presented to the public. It allows them to shape the narrative, emphasizing the positive aspects and downplaying potential negatives.

For instance, in a merger or acquisition, companies might want to release a carefully worded joint statement to the press, highlighting the deal's benefits and reassuring stakeholders. A publicity clause would ensure neither party can release separate statements that might contradict or undermine this unified message.

#3 Managing expectations

A publicity clause helps manage expectations by clearly defining the scope and nature of any public announcements or disclosures related to the agreement. This prevents misunderstandings or misinterpretations that could lead to disappointment or conflict among stakeholders.

For instance, in a partnership agreement, one party might be eager to publicize the deal widely, while the other might prefer a more low-key approach. A publicity clause can clarify and balance these expectations upfront, ensuring everyone is on the same page and avoiding potential friction down the line.

#4 Legal protection

If you’re going to reference another brand’s identity in your promotional materials, you need to ensure you have the legal right to do so. By outlining the specific terms under which you can use the other company's brand elements, the publicity clause gives you a framework for publicizing their association with your brand without legal risks.

The absence of a publicity clause puts you at risk of getting charged with false advertisement, trademark infringement, and brand misrepresentation.

“Over the past five or so years, one of the key responsibilities businesses are placing on in-house lawyers is spotting and managing risk. The business wants its in-house lawyers to be the ones who sniff through virtually every situation looking for risk (legal or otherwise). What this means is that in-house counsel need to be masters of the company’s business operations and strategy (both short and long term), because you cannot successfully spot and manage risk unless you understand how the company operates and where it wants to go.”

~Sterling Miller, CEO and Senior Counsel, Hilgers Graben PLLC
Ten Things: Spotting, Analyzing, and Managing “Risk”

Best practices for reviewing and negotiating a publicity clause

A publicity clause can be a treasure trove of opportunities or a minefield of restrictions for your organization’s marketing efforts. But it all depends on how well your team performs during review and negotiation processes.

Here, we’ve covered some critical steps you must take to ensure your contracts contain publicity clauses that empower you to effectively leverage your partnerships and enhance your brand's visibility.

#1 Look out for alternative captions

Identifying the publicity clause section in a contract is often straightforward. But sometimes, it can appear under alternative captions, such as "marketing," "media relations," and "promotional activities," making it more difficult to spot at first glance.

When searching for the publicity clause in your contracts, check for these alternative labels, so you don't inadvertently miss critical details.

This process may seem tedious, but you can streamline it using the right contract review software. For this purpose we strongly recommend VerifAI.

VerifAI is an AI-powered legal assistant that simplifies contract review processes for contract-facing teams. Here's a breakdown of what it can do:

  • It can analyze your contracts (or contract sections like the publicity clause) against established guidelines to highlight various areas of potential risk.
  • It can receive natural, open-ended queries and return comprehensive answers, referencing suitable sources (think legal chatbot).
  • It can suggest redlines, offering explanations and sources to clarify why it proposed each redline.
Also read: AI for Legal Documents: How AI is Transforming Legal Workflows

#2 Read between the lines

When reviewing a contract, don't solely rely on section headings. Always read the fine print, regardless of the section's title, as crucial details about public communication and disclosure can be hidden within seemingly unrelated sections.

Again, you can streamline this process using a contract review tool like VerifAI.

“If you try to read a complex contract carefully, from front to back, and expect to understand it on just the first read-through, that’s wishful thinking (and potentially very messy).”

~Sterling Miller, CEO and Senior Counsel, Hilgers Graben PLLC
Ten Things: How to Read a Contract
Also read: The Perfect Contract Review Checklist for Commercial Contracts

#3 Push for flexibility

Rigid publicity clauses can hinder your marketing efforts. If the other party insists on strict approval processes for every piece of communication, it can slow you down and limit your creativity. Negotiate for more autonomy wherever possible.

This could involve:

  • Pre-approved uses: Define certain types of communications (e.g., social media posts, website mentions) where you have automatic approval, as long as you adhere to basic guidelines.
  • Timely responses: Include a clause that requires the other party to respond to your publicity requests within a reasonable timeframe (e.g., 48 hours).

#4 Think long term

Publicity needs can evolve over time. When assessing your organization's needs, don't just think about the present, plan for the future by considering how those needs might change within a year or two. Anticipate growth or changes in your target market and negotiate terms that allow for flexibility down the road.

This might mean:

  • Option to renegotiate: Include a provision that allows you to revisit the publicity terms after a certain period or upon reaching specific milestones.
  • Broader scope of use: Instead of just securing the right to use the partner's logo, negotiate for the ability to reference the partnership in press releases, case studies, and other promotional materials.
Also read: Mastering the Art of Contract Negotiation: Strategies for Success

#5 Be aware of other provisions that could impact the publicity clause

Publicity clauses don't exist in a vacuum. They can be influenced by or interact with other provisions within the contract. Here's what to watch out for:

  • Confidentiality clauses: If your contract has strict confidentiality terms, it might restrict what you can publicly disclose about the partnership or project. Make sure the confidentiality clause doesn't inadvertently prevent you from using the other party's name, logo, or any details about the collaboration for promotional purposes.
  • Intellectual Property (IP): Define who owns the IP rights to any jointly created marketing materials, such as press releases, case studies, or promotional videos. If you don't own the rights, you might not be able to use these materials freely in the future.
  • Termination clauses: In the event of contract termination, what happens to the publicity rights? Can you still use the other party's name or logo in your past marketing materials? Will you need to remove any mentions of the partnership from your website or social media? Addressing these questions in advance can save you a lot of trouble later on.

Reviewing these provisions alongside the publicity clause will give you a thorough comprehension of your rights and limitations when it comes to public communications. It will also help you identify potential conflicts or inconsistencies you can address during negotiations.

Examples of publicity clause

Below, we've included several examples from different contracts to show the various forms a publicity clause can take.

#1 From a purchase agreement

Publicity: Until after Closing, without reasonable prior notice to the other Party, no Party will issue, or permit any agent or Affiliate of it to issue, any press releases or otherwise make, or cause any agent or Affiliate of it to make, any public statements with respect to this Agreement

and the transactions contemplated hereby, except where such release or statement is deemed in good faith by the releasing Party to be required by Law or under the rules and regulations of a national stock exchange on which the shares of such Party or any of its Affiliates are listed. In each case to which such exception applies, prior to making such press release or public statement, the releasing Party will provide a copy of such press release or public statement to the other Party.

(Source: Link)

#2 From an employment agreement

Publicity: The Executive hereby irrevocably consents to any and all uses and displays, by the Company and its agents, representatives and licensees, of the Executive's name, voice, likeness, image, appearance and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the period of his employment by the Company, for all legitimate commercial and business purposes of the Company ("Permitted Uses") without further consent from or royalty, payment or other compensation to the Executive. The Executive hereby forever waives and releases the Company and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the period of his employment by the Company, arising directly or indirectly from the Company's and its agents', representatives' and licensees' exercise of their rights in connection with any Permitted Uses.

(Source: Link)

#3 From a contribution agreement

Publicity: Contributor and SCOLP each hereby covenant that neither party shall issue any press release related to this transaction either prior to or after Closing without the written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, however, nothing herein shall be deemed a limitation on SCOLP’s rights to issue statements required by or in order to comply with any applicable law, including any requirements promulgated by the U.S. Securities and Exchange Commission.

(Source: Link)

#4 From a manufacturing supply agreement

Publicity: Without the consent of the other Party, neither Party shall refer to this Agreement in any publicity or advertising or disclose to any third party any of the terms of this Agreement. Notwithstanding the foregoing, neither Party will be prevented from, at any time, furnishing any information to any governmental or regulatory authority, including the United States Securities and Exchange Commission or any other foreign stock exchange regulatory authority, that it is by law, regulation, rule or other legal process obligated to disclose. A Party may disclose the existence of this Agreement and its terms to its attorneys and accountants, Component Providers, customers, and others only to the extent necessary to perform its obligations and enforce its rights hereunder.

(Source: Link)

Wrapping up

A well-crafted publicity clause can be a win-win for all parties involved. Whether you’re looking to leverage your partner’s brand identity or safeguard your public image against misrepresentation, the publicity clause is indispensable.

As already established, whether or not a publicity clause benefits your organization hinges on the quality of your review and negotiation processes, and digital tools like VerifAI can help you optimize for the best results.

If you’re interested in trying VerifAI for free, click here to sign up!

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