A Superbowl LIV 54 sign near the Fox broadcast studios in Miami Beach to happen Feb. 2 at the Hard Rock Stadium in Miami Gardens. (Photo: Shutterstock)

AB InBev ran a Super Bowl ad last year that said Miller Lite used corn syrup in its beer. Miller Lite sued, and the suit is still ongoing.

A few years ago E-Trade ran an ad that referenced the name "Lindsay" for one of the ad's characters, a baby with a "milk problem." The company was sued by actress Lindsay Lohan, who was dealing with alcohol issues at the time. The case settled.

Super Bowl advertising has become … well, the Super Bowl of TV advertising, with companies vying to launch new products, increase brand awareness and hopefully dominate post-game conversation with their message.

But in their zeal to make a splash, the ads can skirt the line between copyright infringement and parody, or test other legal boundaries. And even the most straightforward ads require negotiation with networks and talent on the back end. That's where Reed Smith partner Jason Gordon comes in.

Trust the Process

"At the end of the day, the exciting part about advertising and marketing law is that there's a lot of gray area," Gordon said. "You won't go to prison [for violations], but there is the chance of big, federal litigation."

Jason Gordon, partner at Reed Smith in Chicago.

Gordon, based out of Reed Smith's Chicago office and a partner in the firm's entertainment and media group, said that the Super Bowl is one of the busier times of year for his practice, and with good reason: Super Bowl ads often account for a company's most visible and costly single advertising spend during the year, and everything needs to go as planned.

And that plan begins much earlier than some might think.

"The work starts in late summer," Gordon said. "The discussions start with concepts from the ad agencies, which approach companies who have an interest in buying space at the Super Bowl. Some will pitch really splashy ads with celebrities or movie references, others try to stay on an existing theme, while others take a philanthropic approach."

Gordon said that companies tend to accept more conceptual risk in Super Bowl ads, as they have a chance to really connect with an audience and create a narrative that has a long tail.

"Think of the Budweiser Frogs or the 'Wassup?' campaigns," Gordon said.

Go Deep for Big Money

The price point for a Super Bowl ad this year is between $2 million for an ad before or after the game and around $5 million to $5.6 million for an in-game ad, which can attract close to 100 million viewers, according to Statistica.

With so much money and potential exposure on the line, Gordon says it is key to have legal counsel involved from the outset to help guide the process.

"It can be a situation where a script seems fine," Gordon said. "But once it is put in front of a screen with music and background, it could cause trouble."

On top of advising the client on litigation risk, Gordon said his team is involved in negotiating with the networks that air the content as well as contract negotiations with celebrities who often dominate Super Bowl ad screen time.

"There are two really big work streaks," Gordon said. "The negotiation of the deal is first. So many celebrities are in Super Bowl ads, you have to deal with their agency, manager and lawyers to make sure they are present and ready for the shoot as well as social media spots, banner ads and B-roll."

That work can be thorny.

"From a publicity perspective, the group that is the most litigious is Hollywood, especially if they are doing look-alikes or sound-alikes," Gordon said.

The next challenge, he said, is trying to look through a script and storyboard and trying to imagine what the finished product will look like before it is shot.

"That is where I will be able to point out what to watch for," he said.

After the client has established the project, negotiated with celebrities and produced a final product, there's still the network to deal with.

"The final review is network clearance," Gordon said. "It's their air, and the networks have specific guidelines." He said he tries to keep the networks in the loop throughout the ad creation process to avoid any last minute hiccups.

"There are certain things I've found networks don't like, such as emergency sounds [sirens, tornado alarms] and swearing covered by a 'bleep' among them," he said.

Even if the company, celebrity actor, ad agency, attorneys and the network all come to a consensus that the ad is on the level, other elements can come into play.

Gordon said the NFL once had an ad pulled after reviewing what had already been accepted by the airing network, much to the chagrin of the company that spent a lot of time, money and energy on the project.

He said he's been working hard to make sure that doesn't happen. Now that the ads have been sold (Fox said it sold out the Super Bowl air back in December 2019 for a February broadcast), he jokingly wondered if anyone would see his work.

"Will anyone read my disclaimers at the bottom of the ad?" he joked.

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