5 October 2022

Dos and Don’ts of Copyright for Advertising and Marketing Professionals

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All successful advertising and marketing strategies involve the use of compelling media. As a professional in your industry, you can’t dispute the effectiveness of images, clips, songs, or art in conveying the uniqueness of your product. However, a great marketing strategy is meaningless if you’re not compliant with relevant intellectual property rules.

This article discusses some essential things that you should know about Copyright, leveraging it for your promotional campaigns, and protecting your brand.

Copyright in Advertising and Marketing

Advertising is a crucial part of any marketing process. It is a potent communication tool for selling products and services of any modern brand, amongst other things. For an advertisement to be effective, customers must first notice it. It should be memorable enough to persuade them of the product’s or service’s uniqueness which influences their buying decision. Hence, advertisers and marketing professionals always look for new and enticing mediums to achieve these objectives in their promotional content.

Before an advertisement is released and/or published, it involves layers of processes, research, design, and media production. Components of an advertisement are likely to be subject to the intellectual property rights holder. For example, the music incorporated into an advertisement will have associated intellectual property rights such as copyright. Businesses create and use various marketing materials subject to Copyright.

What is Copyright?

According to WIPO, Copyright is known as author’s rights. It describes the rights of creators over their works. Copyright protects works including books, music, films, photographs, and broadcasts to computer programs, databases, advertisements, maps, and technical drawings.

In South Africa, Copyright automatically arises to protect the owner of works. It does not require any formality or registration, except for cinematographic films.

You can identify your creative work by attaching “copyright” or “copyright reserved” to it. Better still, you could label it with the internationally recognised copyright symbol ©️, followed by the name of your company and the year of the work. A simple ” ©️ Legalese 2022 ” would do. However, this symbol is not necessary for the work to be effectively copyrighted. It is merely a symbol which is intended to communicate that such work is copyrighted. The actually rights arise in accordance with the Copyright Act.

The duration for which Copyright lasts depends on the type of work created. However, typically the period is not less than 50 years.

Requirements for Copyright Protection

For your work to qualify for copyright protection, it must fulfil two requirements. First, it must be original. This means it must not be copied. Even if an existing work inspires your work, a substantial part of it must be your original creation.

Secondly, your work must exist in a tangible form. Copyright does not protect a mere idea but a tangible expression or the manifestation of the idea. An advertisement that merely borrows an existing idea or style in its campaign is not likely to be considered guilty of infringement.

Who owns the Copyright in an advertisement or marketing material?

We have established that the author or creator of an original work owns the Copyright. However, the line comes blurred in cases of commissioned work. Here, the author or creator of work may be different from the owner who has the right to exploit it (i.e. the commissioner).

In a business, employees or independent contractors typically produce advertisements and marketing materials featuring jointly authored creative work. It is important for businesses to expressly state in their employment contracts who owns the intellectual property that has been developed by employers and/or independent contractors. Disputes may easily arise if there is ambiguity in this regard. For example, the question would be wether an employee or independent contractor had a duty to create intellectual property and if such disputed intellectual property was then created in the course and scope of the employment and/or appointment. This can become more complicated when if the default position of the “commissioned work” exception is altered by agreement. For example, a composer creates intellectual property for a commissioner on condition that they may include their work in a compilation album at a later stage or a photographer wishes to utilise their commissioned photographs for a coffee table book at a later stage. A written agreement by both parties can modify the commissioning rule.

It is important to note that Copyright owners can transfer the right of use of this work through a license agreement as mentioned above. Therefore, identifying the creator of the work and considering the exceptions does not guarantee that you can identify the current owner of the work. In these instances, the “new” owner of the work will need to provide evidence that they are the rightful owner (i.e. agreements to that effect).

Staying Compliant in your Advertising and Marketing Campaigns.

Technology has made the internet a breeding ground for plagiarism and copyright infringement. Practically all business models now use social media advertising, and it is easy for a company to fall prey to intellectual property infringement or theft.

To avoid this, you need to understand the laws guiding your industry which vary depending on your location. However, there are some general Dos and Don’ts that every advertising professional should have at the back of their mind.

  • DO consult a legal expert. All the technicalities about laws can be a bit overwhelming. Consider getting a legal expert to deal with compliance and assist your business in securing the necessary approvals and clearances. They can also oversee your licensing and negotiation of joint marketing agreements. With their insight, you can minimise potential risks, litigations, and liabilities.
  • DON’T use copyrighted material without the approval of the owner. Always err on the side of caution. If you didn’t create it, don’t use it without having the appropriate agreements from the copyright owner that permit you to. Do your due diligence before using any third-party content.
  • DON’T commercially exploit copyrighted materials without a license. Otherwise, explore the public domain, which contains works available for use without restriction. Using another person’s intellectual property and profiting from it could render your business liable for monetary damages.
  • In the case of a creative work with multiple copyrights, DO obtain the consent of all the copyright owners before using it. This may mean that you have a warranty from the consenting copyright owners that no other copyrights, to the best of their knowledge, are in existence.

Consequences of Copyright Infringement

It is not unusual for businesses and enterprises to use a third party’s creative content in their marketing campaigns. However, doing this without the proper licence or permission of the intellectual property owner constitutes copyright infringement. This can have an adverse legal and commercial impact on your business.

Asides from the costs of litigation, the reputational damage of an infringing campaign is something a company should rather avoid. It makes your company appear untrustworthy and incompetent. Likewise, to prevent a potential lawsuit, dissuade your employees from using third-party content without the necessary permission.

Maximising Copyright in your Advertisement or Marketing Campaign

Asides from ensuring that you do not commit copyright infringement, it is in your brand’s best interest to ensure that your original content is not misused or stolen. There is always the likelihood of having your advertisement materials imitated or copied by others. Therefore, as a business, you must be aware of the various IP rights incidental to creating content for an advertising or marketing campaign. This way, you can properly leverage and protect your intellectual property.

Mediums of protecting your IP include: drafting clear and concise non-disclosure agreements and having confidentiality clauses in contracts with employees or independent contractors. By implementing these security measures, you can protect the confidential information regarding your content from exploitation.

Furthermore, to discourage others from illegitimately using your content, you should clearly indicate copyright ownership. Outline the terms and conditions of what people may and may not do with it.

Bottom Line

You should not exploit someone else’s intellectual property to bring your brand’s personality to life. Always proceed with caution when using content, you find on the internet. When in doubt about using third-party content that might lead to Copyright infringement, don’t. A solid Intellectual Property strategy is a combination of safeguarding your IP and not infringing on someone else’s.

– Written by Akinola Opeyemi  Marian

Obafemi Awolowo University, Nigeria. LLB5