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Your Legal Team Need Not Be the Bane of Your Creative Efforts: A Guide to Prosperous Coexistence
Your legal team and your creative team are two departments wed by corporate necessity and predestined to disagree. Or are they?
It’s true these two factions, equally vital in the advancement and survival of your business, often approach situations from polar perspectives. But with a little cooperation, understanding and, most importantly, communication, your legal and creative departments can get along like June and Ward Cleaver rather than Peggy and Al Bundy.
Perhaps the first step to harmonious relations between legal and creative is understanding the basis of their differences.
“The creative team wants every order it can get, [while] the lawyer wants to rule out every theoretical legal entanglement. They’re pulling in opposite directions,”says Mark E. Johnson, a freelance copywriter specializing in the health field, and a former creative director for Rodale Inc.
Broken down, this means:
• Creative has been charged with bolstering the company’s bottom line by bringing in lots of money—designing campaigns that will maximize profit.
• Legal has been charged with protecting that money—saving the majority, if not all, of it by sidestepping lawsuit imbroglios.
The legal department can hold sway over issues such as trademark use and brand management, which can feel limiting to creative staff. These departments’ goals may, at times, be at odds. But they need not be mutually exclusive.
Legal Ease
“The first step is training,” says Lisa B. Dubrow, a Washington, D.C.-based lawyer who specializes in advertising and marketing issues. “I don’t mean sitting down and having seminars on the law. What I’ve found is that marketing folks have a different way of thinking and don’t necessarily focus on why the laws were created. If you have an idea of what the laws are trying to protect, you’ll know what the pitfalls are without talking to lawyers.”
Dubrow also suggests that creative and legal confer early in the process to avoid big problems down the road. As the saying goes, an ounce of prevention is worth a pound of cure.
“A lot of clients make the mistake of thinking that getting a lawyer’s advice costs money,” she explains. The little bit it’ll cost you for legal counsel early on will be dwarfed by the hefty bills you’ll pay if legal finds something objectionable once the campaign is finished. “It’s so frustrating when [legal is brought in] too late—when you see a small change at the end of a process. No lawyer likes to say ‘no,’” says Dubrow.
And when lawyers do say no—legalese being what it is—it’s not always entirely clear what they’re saying.
“Ask a lawyer to rephrase something in a way your Uncle Joe would understand,” suggests Karen Rice Gardiner, director of creative services for the National Geographic Society.
Though Gardiner says that as a fairly conservative organization, National Geographic’s creative and legal teams rarely butt heads, she does offer another suggestion for dealing with potential conflicts. “You can pre-empt fear and anxiety by saying ‘let’s go through [a contested piece or a legal brief] paragraph by paragraph.’”
Dubrow concurs, explaining that she prefers to discuss copy with clients in real time. “We don’t have to do it face-to-face, but having conference calls and having the copy in front of you is really important. E-mails are disastrous in that respect,” she says.
According to Dubrow, the most important thing for lawyers to do, when discussing potential changes to marketing material, is to explain why a change is necessary: “Don’t explain that the law says this and this and this. Explain what the law is trying to protect.”
Marketing’s Goals
While lawyers can say too much, in language too arcane to comprehend, marketers sometimes say nothing at all.
“Marketers don’t tell legal what their goals are,” laments Dubrow. “You’ll [often] have two groups across the table from each other and neither will understand where the other is coming from.”
In much the same way that it’s important for marketers to understand what the laws are trying to protect, it’s vital for lawyers to understand why marketers use the tactics they do. Dubrow says when she looks at a marketing piece, she wants to know:
1) What’s the most important thing on the page?
2) What’s the catch phrase?
3) What’s the hook that’s most important?
4) What’s the salient message?
The more that is known about what a marketer is trying to accomplish, says Dubrow, the easier it is to find a compromise. Too often, though, marketers “are so intimidated by the entire legal process,” she says. “They need to be advocates for what they’re trying to convey.”
The Copy Perspective
As a freelance copywriter, Johnson rarely interacts with lawyers these days. With two decades in the business, he’s got a handle on the legal requirements of his work.
Essentially, he says, what marketing and creative folks need to avoid is making claims that can be in any way misconstrued.
“We’ve all seen the disastrous consequences of going too far from legal principles. That’s what did in the entire sweepstakes industry,” says Johnson. He recalls a situation where a man, who received a package telling him he’d already won quite a bit of money, hopped on a plane to go collect it; the man didn’t read the small print about needing to hold the winning prize number. “Lawyers should have been looking for the worst-case scenario.”
While contests present a fairly obvious red flag for legal departments, they aren’t the only claims that need attention.
“The type of copy, like a teaser, that gives away half of the solution to a problem” can be problematic, explains Johnson. “[If] the consumer tries to solve the problem and ends up doing harm to themselves … If they read ‘rub such-and-such on your spots to make them go away’ and then they end up doing it wrong because they didn’t buy the book … I’ve seen it happen and it results in very serious legal consequences.”
Johnson takes steps to make the lives of the lawyers who must approve his work as easy as possible.
“The copywriter needs to back up all of his copy with evidence for the lawyer to look at,” he explains. “The copywriter [must] provide documentation and footnotes. When I show the lawyer that I’ve been diligent with all my copy claims, by showing him all the facts, not only am I likely to have my copy approved, but he’s going to see that I’ve gone out of my way to make his life easier.”
Design Issues
While claims made by marketers are the primary concern of your legal counsel, in some situations they’ll also have input on the creative look of a piece.
“Legal came into play when we were dealing with the yellow border and how it should be used,” explains Gardiner of the National Geographic Society’s very recognizable yellow rectangle. “That’s our house mark, and lots of people [in the organization] like to use the yellow border as the trim edge of a brochure or on the box of a CD cover. But is that good from a brand-management perspective? Does it have any influence on our trademark?”
Issues such as this are deliberated by the National Geographic Society’s steering committee, which includes legal representation.
Who’s in Charge
When creative and legal lock horns, it’s important to know who has the authority to settle the disagreement. Johnson has gained some valuable insight into this. Ultimately, he feels that both should have input, but marketing should have final decision power.
“I’d like to see the marketing director be the ultimate decision maker,” says Johnson. “I don’t think you can let the lawyer have the final say.”
While he admits “risk tolerance is different in different organizations,” Johnson feels that legal advice should be just that: advice a marketing director can use in weighing a final decision.
“We can’t shut the lawyer out of the process,” he says. “It has to be a balancing act.”
Ultimately, what both sides need to remember is that their perspectives mean little compared to the perspective of the consumer, whose favor both should be most interested with. If marketers treat customers with respect, and think, “How would I feel if I, or a family member of mine, received this?” then issues of legality should be minor.
“If you treat your customer right, you’re going to be on the right track,” says Dubrow, explaining that legislation, such as that governing sweepstakes, e-mail and telemarketing, weren’t dreamed up by some regulatory office for the purpose of making marketers’ lives more difficult. “People get too close to stuff and forget to act like consumers.”
If both sides can keep that in mind, getting along shouldn’t be difficult.
Your legal team and your creative team are two departments wed by corporate necessity and predestined to disagree. Or are they?
It’s true these two factions, equally vital in the advancement and survival of your business, often approach situations from polar perspectives. But with a little cooperation, understanding and, most importantly, communication, your legal and creative departments can get along like June and Ward Cleaver rather than Peggy and Al Bundy.
Perhaps the first step to harmonious relations between legal and creative is understanding the basis of their differences.
“The creative team wants every order it can get, [while] the lawyer wants to rule out every theoretical legal entanglement. They’re pulling in opposite directions,”says Mark E. Johnson, a freelance copywriter specializing in the health field, and a former creative director for Rodale Inc.
Broken down, this means:
• Creative has been charged with bolstering the company’s bottom line by bringing in lots of money—designing campaigns that will maximize profit.
• Legal has been charged with protecting that money—saving the majority, if not all, of it by sidestepping lawsuit imbroglios.
The legal department can hold sway over issues such as trademark use and brand management, which can feel limiting to creative staff. These departments’ goals may, at times, be at odds. But they need not be mutually exclusive.
Legal Ease
“The first step is training,” says Lisa B. Dubrow, a Washington, D.C.-based lawyer who specializes in advertising and marketing issues. “I don’t mean sitting down and having seminars on the law. What I’ve found is that marketing folks have a different way of thinking and don’t necessarily focus on why the laws were created. If you have an idea of what the laws are trying to protect, you’ll know what the pitfalls are without talking to lawyers.”
Dubrow also suggests that creative and legal confer early in the process to avoid big problems down the road. As the saying goes, an ounce of prevention is worth a pound of cure.
“A lot of clients make the mistake of thinking that getting a lawyer’s advice costs money,” she explains. The little bit it’ll cost you for legal counsel early on will be dwarfed by the hefty bills you’ll pay if legal finds something objectionable once the campaign is finished. “It’s so frustrating when [legal is brought in] too late—when you see a small change at the end of a process. No lawyer likes to say ‘no,’” says Dubrow.
And when lawyers do say no—legalese being what it is—it’s not always entirely clear what they’re saying.
“Ask a lawyer to rephrase something in a way your Uncle Joe would understand,” suggests Karen Rice Gardiner, director of creative services for the National Geographic Society.
Though Gardiner says that as a fairly conservative organization, National Geographic’s creative and legal teams rarely butt heads, she does offer another suggestion for dealing with potential conflicts. “You can pre-empt fear and anxiety by saying ‘let’s go through [a contested piece or a legal brief] paragraph by paragraph.’”
Dubrow concurs, explaining that she prefers to discuss copy with clients in real time. “We don’t have to do it face-to-face, but having conference calls and having the copy in front of you is really important. E-mails are disastrous in that respect,” she says.
According to Dubrow, the most important thing for lawyers to do, when discussing potential changes to marketing material, is to explain why a change is necessary: “Don’t explain that the law says this and this and this. Explain what the law is trying to protect.”
Marketing’s Goals
While lawyers can say too much, in language too arcane to comprehend, marketers sometimes say nothing at all.
“Marketers don’t tell legal what their goals are,” laments Dubrow. “You’ll [often] have two groups across the table from each other and neither will understand where the other is coming from.”
In much the same way that it’s important for marketers to understand what the laws are trying to protect, it’s vital for lawyers to understand why marketers use the tactics they do. Dubrow says when she looks at a marketing piece, she wants to know:
1) What’s the most important thing on the page?
2) What’s the catch phrase?
3) What’s the hook that’s most important?
4) What’s the salient message?
The more that is known about what a marketer is trying to accomplish, says Dubrow, the easier it is to find a compromise. Too often, though, marketers “are so intimidated by the entire legal process,” she says. “They need to be advocates for what they’re trying to convey.”
The Copy Perspective
As a freelance copywriter, Johnson rarely interacts with lawyers these days. With two decades in the business, he’s got a handle on the legal requirements of his work.
Essentially, he says, what marketing and creative folks need to avoid is making claims that can be in any way misconstrued.
“We’ve all seen the disastrous consequences of going too far from legal principles. That’s what did in the entire sweepstakes industry,” says Johnson. He recalls a situation where a man, who received a package telling him he’d already won quite a bit of money, hopped on a plane to go collect it; the man didn’t read the small print about needing to hold the winning prize number. “Lawyers should have been looking for the worst-case scenario.”
While contests present a fairly obvious red flag for legal departments, they aren’t the only claims that need attention.
“The type of copy, like a teaser, that gives away half of the solution to a problem” can be problematic, explains Johnson. “[If] the consumer tries to solve the problem and ends up doing harm to themselves … If they read ‘rub such-and-such on your spots to make them go away’ and then they end up doing it wrong because they didn’t buy the book … I’ve seen it happen and it results in very serious legal consequences.”
Johnson takes steps to make the lives of the lawyers who must approve his work as easy as possible.
“The copywriter needs to back up all of his copy with evidence for the lawyer to look at,” he explains. “The copywriter [must] provide documentation and footnotes. When I show the lawyer that I’ve been diligent with all my copy claims, by showing him all the facts, not only am I likely to have my copy approved, but he’s going to see that I’ve gone out of my way to make his life easier.”
Design Issues
While claims made by marketers are the primary concern of your legal counsel, in some situations they’ll also have input on the creative look of a piece.
“Legal came into play when we were dealing with the yellow border and how it should be used,” explains Gardiner of the National Geographic Society’s very recognizable yellow rectangle. “That’s our house mark, and lots of people [in the organization] like to use the yellow border as the trim edge of a brochure or on the box of a CD cover. But is that good from a brand-management perspective? Does it have any influence on our trademark?”
Issues such as this are deliberated by the National Geographic Society’s steering committee, which includes legal representation.
Who’s in Charge
When creative and legal lock horns, it’s important to know who has the authority to settle the disagreement. Johnson has gained some valuable insight into this. Ultimately, he feels that both should have input, but marketing should have final decision power.
“I’d like to see the marketing director be the ultimate decision maker,” says Johnson. “I don’t think you can let the lawyer have the final say.”
While he admits “risk tolerance is different in different organizations,” Johnson feels that legal advice should be just that: advice a marketing director can use in weighing a final decision.
“We can’t shut the lawyer out of the process,” he says. “It has to be a balancing act.”
Ultimately, what both sides need to remember is that their perspectives mean little compared to the perspective of the consumer, whose favor both should be most interested with. If marketers treat customers with respect, and think, “How would I feel if I, or a family member of mine, received this?” then issues of legality should be minor.
“If you treat your customer right, you’re going to be on the right track,” says Dubrow, explaining that legislation, such as that governing sweepstakes, e-mail and telemarketing, weren’t dreamed up by some regulatory office for the purpose of making marketers’ lives more difficult. “People get too close to stuff and forget to act like consumers.”
If both sides can keep that in mind, getting along shouldn’t be difficult.
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