Copyright Issues In Advertising: What To Consider?

• Published date: 30 June 2023
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Advertising, Marketing & Branding
• Law Firm: Gowling WLG
• Author: Mr Dan Smith, Zoe Pearman and Lucy Singer

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...