Overnight Success and Monetising your Personal Brand

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Overnight Success and Monetising your Personal Brand

Overnight fame and success are easier than ever to achieve thanks to the internet, social media and reality television. This has been a great benefit to many content creators and influencers who want this level of fame, but it also means that many people who experience overnight success are not prepared for how it will affect their lives.

When people become successful overnight, it can be hard to know how to capitalise on this success - or, how to avoid the spotlight if the attention becomes too much. Many reality TV contestants apply because they want the chance to grow their audience, and in these cases, they may be better prepared to launch their personal brand. However, they may still find that there are unexpected consequences to success, or legal matters that they didn’t expect but must now consider.

In this guide, the legal experts at JMW Solicitors will explain the legal factors to think about before entering a reality TV competition, how you can react if you become a celebrity unexpectedly, and how you can capitalise on popularity.

Preparing for Success and Understanding Your Rights

If you can, it is important to be prepared in advance. Some programmes will be filmed months before they air, while others may be shown on TV the day after they are shot; in the former case, contestants who know they have won or who expect to make an impact can make preparations, including by undergoing some media training, However, it is impossible to know how the programme will be edited or how the public will react, and you might still be taken unawares.

If you are still participating in filming for the programme while it is airing, you may not even be aware when a clip or moment attains viral popularity, and without engaging legal intellectual property experts, you risk missing out on the chance to protect your intellectual property. In such cases, you should engage the services of a solicitor before you participate in the programme, so that they can stay abreast of your success and respond on your behalf to any intellectual property matters that arise.

In some cases, it won’t be possible to prepare adequately in advance. For example, if your success comes from a piece of online content going viral, this could be completely unexpected and leave you in the position of having to react very quickly to capitalise on your virality. There are other concerns that can arise from this type of sudden fame, and instructing an expert lawyer as soon as possible can help you to react effectively in your interests.

If you starred in a reality TV programme, the programme’s producers (or another authority like a studio) will own the copyright to the programme, and you will be unable to monetise episodes or clips without permissions from the copyright holder. However, your personal brand identity belongs to you, and there are many elements that you can register for trade mark protection to defend your ownership of this. This includes your name, silhouette, catchphrase (including phrases and individual words), logo, or other brand assets. More information on what you can register can be found in our guide to trade mark applications.

There are specific guidelines about what kinds of assets can qualify as trade marks and significant restrictions to be aware of when it comes to making an application. For example, the mark - whether a word, phrase, image, sound effect or other intangible asset - must have a distinctive character, and phrases that are in regular use or basic shapes like circles or triangles will be ineligible for registration.

Catchphrases and Unexpected Assets

If you become well-known on a reality competition programme for using a certain phrase, you may wish to register your ownership of your catchphrase with a trade mark. As indicated above, your success in this application will depend on how distinctive the phrase or mark in question is, and on how quickly you act - in rare cases, another party may beat you in making a filing and try to register your intellectual property assets for themselves. This can happen because you may not even realise that the phrase is unique or will become closely associated with you - as a reality TV contestant, you will not have control over how the programme is edited, and catchphrases typically prove much more successful when they emerge naturally (as opposed to a contestant trying intentionally to launch a slogan by repeating a phrase).

The requirement that a mark must have its own distinctive character to qualify for trade mark registration is relevant when it comes to catchphrases, as these often come from phrases that are in common usage. The way that you say a phrase is not eligible for protection, only the words themselves, so if you have a distinctive way of pronouncing a word it may be advisable to alter the spelling to improve your chances.

A relevant example is Cardi B, who tried to trade mark the phrase ‘Okurrr’ as a popular mispronunciation of ‘Okay’. The application was unsuccessful because the US Patent and Trademark Office determined that even this corruption of the word was in such common usage that it could not be registered (and issues arose disputing Cardi B’s claim that she originated the phrase). However, this serves as an example of how you may wish to approach registering your unique and distinctive interpretation of a more common phrase.

This case also highlights the difficulty of registering a trade mark if the phrase has a strong association with another person or business, or if the phrase too closely resembles a similar phrase that is already registered as a trade mark, or is distinctly associated with another party. The final thing to consider when determining whether you will be able to register a phrase is the category in which you want to register it, which will also affect your chances of success. Another party may own a similar mark, but if their registration covers a very different category from the one you want, you may still be eligible to register the mark.

An example that may be instructive comes from ITV Studios’s hit Love Island. The show’s producers send SMS messages announcing challenges, eliminations or other dramatic moments, to which contestants commonly respond, “I’ve got a text!” Recognising an opportunity to create Love Island merchandise featuring the phrase, ITV applied to register “I’ve got a text” as a trade mark in 2021.

This phrase is strongly associated with Love Island among consumers, which lends it a distinctive character, and ITV registered the mark in category 9, which protects it for use on mobile phones and related accessories. However, the company didn’t register it in category 38, which protects mobile communication services - this may be because the company does not have a use for the trade mark in this category, or because it is too common a phrase in association with this particular category.

What To Do If You Cannot Register Your Assets

If your catchphrase is in common use but it is still closely associated with your personal brand, there may still be ways for you to monetise it - even if you are unable to register the phrase itself as a trade mark. For example, you could create a logo for your brand that would be eligible for registration, and use this to set your merchandise apart from unofficial copycats.

You could also create unique designs using the phrase and register these, so that while competitors won’t be prevented from selling products featuring the phrase itself, they won’t be able to directly copy the designs of your products, and it will be clearer for consumers that your imitators’ merchandise is not official. More elaborate designs may be better protected by copyright than a trade mark, but you should consult an expert intellectual property lawyer to learn more about the protections that will apply to your work. You can also find more information in our guide to the differences between trade marks, patents and copyright protection.

If you find that someone else is using a phrase that you have originated or that is closely associated with your brand, and you haven’t registered the asset for trade mark protection, you may still be able to prevent their infringement under the laws of passing off. This is when a competitor imitates a successful business using unregistered assets to create the sense among consumers that there is some relationship between the two.

This can be difficult to defend, so it is important to register your intellectual property as soon as you have the opportunity to do so, and avoid relying on passing off to prevent others from monetising your intellectual property.

Protecting Your Reputation in the Media

There are many things that can affect how you respond to overnight fame, but it can be extremely difficult for someone who is not used to receiving attention. Media outlets that try to cash in on your success can become invasive in trying to find information about you, while internet users might investigate your social media profiles to try to find damning information, a practice that has become all too common.

To protect yourself from this, you should hire a solicitor with media law expertise who can quickly react to any situations that may arise, and can defend you from everything from defamation, slander and libel to online harassment, phone hacking or other invasions of privacy.

Certainly, these types of challenges will not happen to everybody, but by hiring a team with the right combination of experience to protect you, you can minimise your risk and quickly respond in the event that any such situations arise. JMW’s expert media law team provides a comprehensive suite of services to protect your reputation across both traditional media and digital platforms.

Talk to Us

JMW Solicitors is regarded as one of the leading intellectual property practices in the UK, and with many years of experience representing businesses and individuals to defend both their assets and their reputations, we understand the nuances of protecting and monetising your IP.

We can also coordinate directly with our expert media law team to help you to manage your public persona following an unexpected rise to fame and success.

To speak to a specialist IP solicitor about registering your intangible assets, contact the JMW team by calling 0345 872 6666, or fill in our online enquiry form to request a call back.

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