In-depth: When brands shoot themselves in the foot trying to ride the coattails of Olympic glory

New Delhi: The recent controversy over Manu Bhaker issuing notice to several brands using her photos illegally after her Paris Olympic wins is just another card in the deck of legal notices issued by athletes against moment marketing. 

In their haste to ride the wave of an athlete's victory, brands often blur the lines, treating these stars like mere promotional props. It’s the Wild West of digital marketing, and everyone’s gunning for gold.

Moment marketing can indeed create a strong bond with consumers, but the frantic scramble to hop on the latest trend can sometimes make brands forget the ethical and legal boundaries they need to respect. 

Promises of instant gratification and viral fame turning into high-wire acts of peril  “This is a classic case of brands shooting themselves in the foot while trying to bask in the reflected glory of this Olympic medallist. A similar feat by other brands trying their luck in 2021 by using PV Sindhu’s image for doing their ‘marketing’ using her winning ‘moment’ was anything by ‘moment marketing’. But it is downright unethical as well.  

“Such ambush marketing reflects poorly on big brands and their advertising strategies,” said Shweta Purandare, ASCI former Secretary General and now Founder of Tap-A-Gain. 

It is seemingly a high-risk, high-reward strategy that can generate significant buzz and engagement when executed correctly. However, the allure of quick wins has led many brands to overstep boundaries, often without considering the legal and ethical implications.  

Neerav Tomar, MD, IOS Sports & Entertainment, agreed that the Olympics serve as the perfect platform for moment marketing, where brands can leverage heightened emotions and global attention to create impactful and memorable campaigns.  

However, Rahul Trehan, COO, IOS Sports & Entertainment, emphasised the need for “fair and meaningful partnerships that recognise the athletes' contributions. Free-of-cost moment marketing can devalue the immense effort and sacrifice that all our athletes put in,” he said.

Discussing the foundational problem of the situation, Purandare said, “Many times, what one might consider is the young, fresh out of college bunch of people handling the digital media. Their oversight could be a minute yet significant concern.” 

For a small brand or advertiser, such an unaware base of marketers, coupled with the infrequent nature of major sporting events like the Olympics, can lead to oversights. “But again, this issue extends beyond small companies. These are big companies acting opportunistic in their marketing approach,” she said.

The complexity of moment marketing is further compounded by event-specific regulations. “Advertisers have to be even more cautious before they go ahead and use somebody's name, image or even voice!” she warned. 

The use of AI to create voiceovers that resemble celebrities adds another layer of complexity. “Voice, for that matter, might be created by AI in today’s time, but if it still sounds like a particular celebrity's uncanny resemblance, it can be illegal and misused,” Purandhare added.

Trying to get away from the allure of quick wins—brands prioritising speed over substance 

The cases against brands using athletes' images without permission highlight the core issue: the lack of clear guidelines. While intellectual property rights protect individuals, the fast-paced nature of digital media often leaves little room for legal teams to react in time. Athletes, riding a wave of euphoria after a victory, are understandably protective of their image and rightly so. 

To get a perspective on the legalities involved in such a scenario, Dhruv Garg, a tech and policy lawyer, explained, “Under the guise of congratulating them, companies might post messages with pictures and names of the athlete, despite having no prior endorsement deal. It is unfair because athletes seek support and prefer to back companies that supported them before their win. New companies should enter into commercial deals rather than using the athlete’s image after their success. This practice undermines the companies that supported the athletes earlier.” 

The legal minefield is equally treacherous. With AI-generated content blurring the lines of authenticity and copyright, the landscape is shifting rapidly. “In India, people's faces and names are protected under personality rights, part of intellectual property rights. Using someone’s likeness as an endorsement without an agreement is not allowed. The problem is certainly not the lack of remedies; people have taken legal action but handling multiple cases is challenging. A potential solution is obtaining a favourable high court order that applies to multiple entities. Marketing agencies or companies seeking endorsements should directly engage with players' managers to establish deals. Proper legal consultation can prevent misuse. Government awareness campaigns could also help prevent unauthorised use of likenesses and endorsements.” 

Tomar highlighted the pace of legal resolutions in such cases by saying, “In India, unfortunately, securing legal justice in such cases is a long and drawn-out process with no immediate relief. Brands must invest in our sports stars, ensuring they are rightfully paid and recognised for their achievements." 

One of the most infamous cases in this space involves the 2014 FIFA World Cup. Several brands used the iconic image of German goalkeeper Manuel Neuer without authorisation. The incident underscored the potential legal ramifications of hasty-moment marketing. 

Closer home, the Indian Premier League (IPL) has seen its fair share of controversies around the unauthorised use of player images.

So, how can brands navigate this complex landscape?  

The answer lies in a combination of speed, ethics, and legal compliance. Brands must develop robust processes to identify potential moment marketing opportunities quickly. However, the urge to be the first to capitalise on a moment should not override ethical considerations. Seeking explicit permission whenever possible is crucial. 

Manisha Kapoor, CEO and Secretary General, ASCI: “To market effectively while respecting athletes' integrity, brands should first secure the required authorisation for using the athlete for their likeness, video or image. Unauthorised use can result in misleading advertisements and breach Clause 1.3 of the ASCI Code.

Secondly, brands should avoid implying non-existent endorsements, ensuring transparency and honesty to uphold consumer trust. And finally, it’s essential to be aware of any legal restrictions, such as those imposed by the International Olympics Committee (IOC), to prevent potential violations during the Olympic period.” 

“Not to be forgotten is that the International Olympic Committee has its own set of rules and not every brand is permitted to use the names of the athletes that they have tied up with,” said Purandhare. Therefore, “whatever creative is created, there has to be a team of experienced people within the company who take a look at every single piece of communication. Due diligence needs to be done,” said Purandare. 

When it comes to posts made on social media and the question raised on the intent or nature of the post, one needs to check if the post was made in the user’s personal capacity or is an implied endorsement. Garg explained this in his words and said, “Distinguishing between personal posts and company branding can be complex. Clear branding in advertisements is more straightforward, while social media cases depend on whether a reasonable person perceives an endorsement.” 

Building strong relationships with athletes and their management, therefore, becomes all the more beneficial.

Collaborations based on mutual respect can lead to win-win situations. Furthermore, brands should invest in legal counsel specialising in intellectual property rights to stay updated on the evolving legal framework.

It's essential to remember that moment marketing is not just about creating catchy content; it's about building trust. Respecting the rights of athletes and other public figures is paramount. By striking the right balance between creativity and compliance, brands can harness the power of moment marketing without facing legal backlash. 

Bhavik Mehta, CEO Thinkin‘ Birds Communications, said, “Building genuine, long-term relationships with athletes is important and this involves more than just financial investments; it's about understanding their values, aspirations, and personal brands. A prime example of responsible moment marketing is Nike's 'Just Do It' campaign, which has transcended specific moments to become synonymous with athletic achievement.

Rather than latching onto individual victories, Nike has consistently inspired and empowered athletes, creating a lasting impact. This approach not only builds brand equity but also garners respect from athletes and consumers alike.” 

As the digital landscape continues to evolve, so too will the rules of engagement for moment marketing. Brands that prioritise ethics and transparency will not only protect themselves from legal troubles but also build a positive reputation. The goal should be to celebrate shared moments, not exploit them.