By awarding prizes in connection with a sweepstakes promotion, a business can generate valuable publicity and goodwill. This is especially true when the sweepstakes sponsor is able to publish the name and/or likeness of the winner. Putting a name and face to the winning entrant is an effective means of connecting with the public and maximizing promotional impact.
In order to ensure that a brand has that ability, however, the sweepstakes sponsor must obtain publicity releases from entrants which allows for the use of their names/likenesses in the event that they are sweepstakes winners. In particular, businesses must ensure that the Contest Rules contain necessary provisions explaining the publicity release. Further, sweepstakes operators should require that prize winners agree to (and execute) an additional, detailed publicity release.
Important Sweepstakes Publicity Release Considerations
Below are some key, but not a complete list of, publicity release concerns:
• The Contest Rules associated with the subject sweepstakes should contain provisions designed to obtain a release from entrants for the use of their names/likenesses in the event that they win prizes.
• In addition to the release contained in the Contest Rules, prize winners should be asked to execute a separate, more thorough publicity release as a condition of receiving the applicable prizes.
• Sweepstakes sponsors should be careful, however, as some jurisdictions do not permit consent to be obtained in such a manner. Residents of certain states should be expressly exempted from the publicity release provisions contained in the Contest Rules. Further, executing the separate publicity release should not be a precondition to receiving a prize for those individuals.
• Relatedly, if the sweepstakes sponsor intends to promote a sweepstakes by enlisting paid influencers, certain additional rules apply. The Federal Trade Commission’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” requires that individual promoting a sweepstakes notify the public of any financial interest/relationship with the subject sweepstakes sponsor. In particular, prominent disclosures must accompany each marketing message from influencers stating that the influencers are being compensated by the sweepstakes sponsor.
Ensuring that Your Sweepstakes Can Maximize Good Publicity
Promoting the names/likeness of sweepstake prize winners can maximize goodwill and help brands connect with consumers. However, businesses risk violating prize winners’ rights of privacy/rights to publicity unless all requisite consents are obtained. Further, the use of influencers to promote sweepstakes must satisfy additional legal requirements regarding the disclosure of the financial relationship between the parties. In order to achieve the foregoing, it is crucial to retain experienced sweepstakes attorneys that can assist with all aspects of both promoting and structuring sweepstakes offerings.
If you are interested in learning more about this topic or require the preparation of Contest Rules and/or separate publicity releases in connection with your sweepstakes promotions, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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