A friend told me recently that if she listened to her lawyers on a new product launch, the packaging would be blank.
Marketing and legal are often the functions with the greatest friction. A legal review of an idea is akin to running the gauntlet. There is inevitably risk in any idea. Removing the risk entirely can sand the edges off the idea.
Yet much of this tension is a result of how the relationship is set up. I recently talked to a brand manager for Axe (known as Lynx in Europe). Axe puts out some of the most risqué creative of any mainstream brand. And it does it from within Unilever.
I asked him how they got their more controversial ideas (like this bawdy video for the Axe Detailer) past their legal department. He said that the key was in having the legal department help create the ideas in the first place. He tried to get the lawyers to think of themselves as marketers on the marketing team. In helping originate the ideas, they came to the work with greater enthusiasm.
To bring across this mindset change, he brought them the ideas as rough sketches, not final concepts. Rather than simply identify risks, the lawyers brought solutions to mitigate them. They helped move the idea forward. This included guidance in the creative execution as well as contingency plans for different types of potential backlash.
Enlisting the legal department as part of the marketing department sets them up, not to critique, but to create.
>>>
As an epilogue, an in-house attorney named Bob sent me an email with an alternate version of the legal/marketing dynamic from his perspective. It cracked me up, so I sketched this too. I think both points of view are funny…
Jay Krish says
June 27, 2011 at 4:33 amGood one Tom! It seems that “Terms and Conditions Apply” doesn’t cut it any more…
John says
June 27, 2011 at 5:14 amI have had several campaigns killed by legal teams, particularly when working in smaller companies. In that environment creative marketing teams want to take more risk (because media budgets are smaller and you are fighting bigger foes who can outspend you and you want to generate cut-through), and yet in smaller companies the legal teams are often more stretched – which makes it harder to do the kind of collaborative working described at Axe. Either way you’re going to spend a lot of time working on how to bring the lawyers in to the process, or effective ways of communicating why you’re not taking such a big risk (e.g. doing the research to show them other examples where competitor companies have taken risks, looking at legal precedents for your campaign, providing the data about why your claims are OK upfront so that you can head off their questions quickly and prevent the legal ‘panic’ that sets in when lawyers think that a marketing team might be about to do something edgy) and so on. Either way the learning for me was never to underestimate legal as something you have to spend lots of time on…
Josh Burke says
June 27, 2011 at 6:26 amBoo. Is perpetuating this stereotype really helpful? As an in-house attorney, I know that’s not the experience I give my colleagues nor is it the goal of any of my fellow attorneys in similar positions. How long would we last in these roles if that was the best advice we could give?
If next week’s cartoon is about a marketer wanting to do something that any person on the street would know is out of bounds, I’ll forgive you. 🙂
Dave S. says
June 27, 2011 at 6:51 amYeah, this is about right.
Marketing is paid to say “go” and
Lawyers are paid to say “no”.
Stereotypes exist for a reason.
Mar says
June 27, 2011 at 6:53 amNo risk, no fun! If your competitor doesn’t even try to challenge you, the campaign is likely not good enough. High risk campaigns make good management of legal risks a must. Having in-house lawyers is an advantage because they aren’t caught in professional liability and will allow you to go with higher risks. Team play and early involvement of the legal department is key. Presenting the final campaign idea at the very last moment doesn’t leave a lot room to manoeuver.
tomfishburne says
June 27, 2011 at 7:19 amHi Josh,
I’m critiquing the dynamic, not the attorneys. My overalll message is that lawyers and marketers can and should work together as part of one team. I think that that Axe example I shared is a positive example of how even a controversial topic could be addressed by collaborating. I’m trying to make fun of the classic stereotype to show that it shouldn’t be there. This is what I try to do in all of my cartoons: play with stereotypes that people recognize in order to try to debunk them.
In this case, I used my friend’s comment and experience with packaging review to highlight an issue and then show a best practice with Axe where the lawyers and marketers are working well together.
I do think in many organizations, there is risk aversion that steers an idea too far toward a safe course, even if the safer course loses the edge of the original idea. It’s not the lawyers’s fault. It’s the dynamic that sets up marketers and lawyers in a combative stance in many places.
I touched on this topic before, where I debunked the expression “idea prevention department” to talk how I’ve worked with attorneys who could create marketing opportunities out of legal challenges: https://marketoonist.com/2010/09/idea-prevention-department.html
I agree too that part of this combative dynamic is marketers pushing without appreciating the legal issues. Here’s an early cartoon making fun of that:
https://marketoonist.com/2003/02/how-to-give-creative-feedback-to-the-agency.html (so, hopefully, I’ve earned some of your forgiveness 🙂
Sorry this one one struck a negative chord for you. I was trying to take a positive, instructive angle on an issue that I hear a lot…
Amanda Murphy says
June 27, 2011 at 8:36 amI really like the brand manager’s comments. Even in other roles or positions, we can sometimes get too narrow-minded in doing “my job” and forget to think outside the box. In this case, lawyers are there to, among other things, help the company avoid unnecessary risk; in avoiding risk, there is always potential to at the same time avoid opportunity, so involving the lawyers in the creative process – i.e. helping them understand the background from the beginning – seems like a great way to both create a sense of ownership and give them the ability to understand what are the true intrinsic risks and what are really not worth worrying about at the end of the day.
And really at the end of the day, it’s this sort of new and exciting campaign (think Axe but also Virgin, GoDaddy, etc.) that we talk about and remember.
Daniel Schoonmaker says
June 27, 2011 at 12:21 pmThe instances where I’ve had the most trouble with legal departments has been when working through review from the agency side, where we provide a fairly finished piece to the client contact and then get it back from legal with all kinds of red on it. Some of the client-side marketing types I’ve worked with haven’t done too much more than run our materials through the review process. I’m curious how you could create a bridge over something like that.
Claus Eefsen, LL.M , Medator, HR Negotiation - Labor Relations says
June 27, 2011 at 1:11 pmHey, Don’t forget that Legal in-house in every respect is cross company advice. We must Think company bottom Line. No business aproach = no Real legal advice (why does my IPad auto use Capital letters that does not apply correct?). All in all: if your legal does not work with and understand the business, get somebody else!!
Judy Thompson says
June 27, 2011 at 3:48 pmI love the cartoon! As Executive Director of AdClub Cincinnati, I am most fortunate that our President-elect who takes office on July 1 is, in fact, an Intellectual Property attorney. Having spent my career as a copywriter-turned-account person and then client, I find our attorney president-elect refreshingly open-minded about what can and cannot be done. And, frankly, I find JOY in this cartoon because it reminds me of a stereotype that I believe has gone the way of the 3-martini lunch. (That is, it probably still happens somewhere, sometimes, but it’s certainly not the norm.) LOL.
JC says
June 27, 2011 at 4:38 pmFrom a brand manager standpoint, I am fortunate enough to be working with friendly lawyers, who tries to offer solutions, not just roadblocks. I think it’s important for us all to realize that if we don’t sell products, none of us would have a job. Therefore, it’s in the best interests both lawyers and marketers to work together on what’s the best option. That said, it’s the lawyers’ job to protect the company and be conservative. It IS ultimately the marketers’ job to build the business case. Lawyers, Senior Management, Sales, Retailers, they are all people you need to convince that you need what you need from them because that’s the best solution for all parties involved. Marketers are suppposed to define the win-win situation, but yes, we don’t always succeed… And there are some tough critics, from everywhere…
tomfishburne says
June 27, 2011 at 5:35 pmWow, this was one of the more spirited exchanges we’ve had. While I certainly aimed the cartoon to poke fun at the legal/marketing dynamic, I hadn’t realized that I was stirring such a hornet’s nest.
Great feedback and dialogue this week. It included an actual cartoon idea from an attorney named Bob to take the opposing point of view. I sketched that alternate cartoon and inserted into my post (and will send a signed print to Bob).
There was healthy debate from all functions, and I think we all agree that the silo approach is outmoded (“gone the way of the 3-martini lunch” as Judy put it). As one attorney said in an email to me, “at the end of the day, my job is to sell”.
This week’s print goes to JC. I like how she reminds us that it is ultimately the marketers’ job to build the business case. It’s not enough to complain when we feel like there are barriers to ideas. We have to take it upon us to find ways to make the ideas happen.
poorvipatodia says
June 28, 2011 at 6:34 amTom – love this week’s cartoon (both versions) – I am still cracking up. Just wanted to endorse the approach you advocate in working with legal teams up front – get them in on the brainstorming, and also the idea refinement. Leads to a better outcome, less friction – and less back and forth. Also – I have used this approach successfully with regulatory teams, as well as science / R&D teams.
metfan says
June 28, 2011 at 6:44 amMy comment to the marketers is usually “Risk with Courage”. You can only take the risk if you are willing to lose. If you are not willing to lose then the risk is simply not worth taking. Too often we have marketers who want to review ideas with legal, convince them to allow a risky claim, and then hide behind the legal “approval” when challenged. We are either together in taking the risk or I will likely not allow it.
Josh B says
June 28, 2011 at 9:42 ammetfan – that’s a really great point. Just to build on that and on my comments to Tom, I don’t see it as my job or my place to say “no” (absent something that would be flat-out illegal, which is virtually never the case). My job is to point out the potential risks and help the business team decide if the risk is worth taking and figuring out *now* how we’ll respond if we get challenged down the road.