Copyright is arguably the most important intellectual property right to advertising and is a right that crops up regularly in the advertising world. As the name suggests, copyright grants the owner the exclusive right to do certain things with that work, including copying that work and communicating it to the public.

In this latest article in our copyright series, we explore the importance of copyright in advertising, who owns the work used in advertisements and best practice for advertisers including some useful dos and don'ts.

Why is copyright law important to advertising?

Copyright is a far-reaching intellectual property right, which can protect a wide range of works (including literary, dramatic, musical and artistic works). All of these elements are commonly found in advertising, spanning from the catchy music under laying a TV advert, to the photographs used on billboards lining Tottenham Court Road. Provided these works are original and have been recorded, they are all subject to copyright protection.

Copyright protection lasts for significant periods of time, with the majority of literary, dramatic, musical and artistic works being entitled to protection that lasts the life of the author plus 70 years. Copyright infringement is actionable in the same way as most other intellectual property infringements. A copyright holder may be able to sue for a range of relief including damages and/or an injunction to prevent further infringements.

Where an advertisement incorporates copyright work without permission, then in addition to the time and money that may be incurred to defend a claim of infringement, the unauthorised use could also result in significant time / cost wastage and loss of opportunity, as the infringing advertisement would need to be taken down.

Therefore, it is essential that when advertisers are putting together an advert, they consider the copyright protection vesting in these works, whether permission from third parties should be sought and the consequences of infringement.

Who owns the work?

Where a work is commissioned, the general rule is that the creator of that work retains ownership of the copyright, rather than the commissionerthe person who paid for that work to be created.

This is very important when it comes to advertising and problems can arise where an agency has created a work on behalf of an advertiser, but has not transferred the copyright in that work to the advertiser.

We typically advise advertisers to ensure that any agreement they have in place with agencies and other creators includes a full assignment to ensure the rights in the relevant elements of the advert are assigned and ownership ultimately vests in the advertiser. Otherwise disputes can easily occur and the advertiser may find it is prevented from using the advert in all of the ways it would like.

What is the difference between 'inspiration' and infringement?

Copyright protection does not create a monopoly over the work but does provide the owner with protection against the copying, or dealing with infringing copies, of that work. A person infringes copyright if they undertake (or authorise someone else to undertake) any of these acts (including copying a work) without the copyright owner's permission.

It is important to note, that the test for copying said works is not a quantitative test but instead a qualitative test. It is therefore possible to infringe an owner's copyright by taking a seemingly small part of a work. As such, even taking inspiration from a hook of a song or the title of a book could constitute copyright infringement so long as it is deemed a 'substantial' part of the original copyright work.

It is therefore essential that advertisers and agencies alike consider whether they have over-borrowed from an existing work or gleaned more than mere inspiration when creating an advert.

Does a defence apply?

Should a proposed advert take a 'substantial' part of a copyright protected work, certain defences may apply to avoid liability.

Relevant defences for the purposes of advertising are set out below:

  • Parody: this defence applies for the purpose of caricature, parody or pastiche without the permission of the copyright owner.
    • The recent case of Shazam Productions Ltd v Only Fools The Dining Experience Ltd[1] shed some light on the requirements to meet the parody defence threshold:
      • The parody must be for the purposes of parody, as opposed to advertising. As such, any advertising that occurs out of the parody must be incidental with the predominate purpose being the parody.
      • The parody must be an expression of opinion through the medium of humour or mockery. Mere imitation is insufficient, irrespective of whether this is humorous imitation.
      • The parody must be sufficiently different from the copyright work to not replace demand for it.
      • The parody must only take a limited amount of the copyright work.
  • Criticism or review: this defence only applies if a fair portion of the work has been taken for the purposes of criticism or review.
  • Illustrating an assertion: this defence also applies when defending an opinion or carrying out an intellectual comparison between the assertion and copyright work.

What is best practice for advertisers?

Should advertisers wish to use a third party's copyright protected work, the safest option is to approach the rights holder directly to obtain the relevant permissions. However, given copyright is an unregistered right, it can be difficult to trace ownership of the works in question. With no register to check ownership details of a work, tracking down the rights holder may prove elusive for some advertisers.

Fortunately, the industry is aware of these challenges and licensing bodies have been created to take responsibility for granting licences to use certain works. For example, 'PRS For Music' manages the rights of songwriters, composers and publishers, while Phonographic Performance Limited manage the rights of record producers and the performers. Such licensing bodies can also provide clarity where advertisers are required to obtain permission from the rights holders directly prior to use.

For example, if an advertiser wishes to use a song in the background of their advert, they will have to consider the copyright that exists in the music, production, and lyrics of the song. Obtaining a licence from a licensing body may not clear all potential risk – even in these situations, a third party could still claim ownership of a work. For instance, the track could contain un-cleared samples that might leave an advertiser at a risk of a claim made against them. We recommend seeking advice before incorporating any third party materials into an advertisement.

Dos and don'ts of copyright in advertising

  • Do consider the various types of works that might attract copyright protection.
  • Do attempt to seek a right holder's permission before using their work.
  • Do ensure assignments are in place to cement any copyright ownership of a work, particularly when undertaking work between advertisers and advertising agencies.
  • Don't presume that by commissioning the creation of a work, you will retain ownership of the copyright in place of the author.
  • Don't fall into the trap of thinking copyright infringement is decided by a qualitative test, using any substantial part of a work can be deemed as copyright infringement.
  • Don't assume that using a licensing body (such as PRS For Music) will ensure you are avoiding copyright infringement.