Copyright in advertising material

• What is copyright?
• Will all work be protected by copyright?
• Who owns copyright?
• How long does copyright last?
• Does a work have to be marked with the © symbol, and does copyright have to be registered?
• Is there copyright in a name, title or slogan?
• Can copyright protect mere ideas?
• If I parody a piece of music or commission a "soundalike", is this fair dealing and legally OK?
• If my commercial is only inspired by a well known movie, will I avoid copyright problems?
• Can I obtain permission to use a copyright work?
• What happens if someone uses a copyright work without permission?

What is copyright?
As the name suggests, copyright is the right to prevent a work being copied without the copyright owner's consent. Copyright also protects against a work being issued to the public, performed, shown or played in public, broadcast or adapted. This means that broadly an advertiser cannot use someone else's work and someone else cannot use the advertiser's work, without permission. To do so will infringe the copyright.

Will all work be protected by copyright?
No. The categories of work that are protected are literary, dramatic, musical and artistic works, sound recordings, broadcasts, cable programmes, films and published editions of works. There is copyright in the spoken word, but only once it has been recorded in a permanent form. In addition, the work must qualify for protection. The work must be original (i.e. not itself copied) and a "substantial" part must have been copied. There are also a number of exclusions from liability, for example, where there is incidental inclusion of the work, or its use is in the public interest.

Who owns copyright?
The first copyright owner is generally the author of the work, in other words, its creator. The main exception is where the work is made in the course of employment, when the employer is the first copyright owner. Freelance contributors retain copyright ownership unless their contracts say otherwise. Ownership of copyright can be transferred or the right to use copyright works can be licensed.

How long does copyright last?
Generally, copyright in literary, dramatic, musical and artistic works last for 70 years after the author has died. In the case of films, it is 70 years after the last to die of the principal director, the authors of the screenplay and dialogue, or the composer of any music created for the film. Copyrights in sound recordings, broadcasts and cable programmes last for 50 years, and in published editions, 25 years.

Does a work have to be marked with the © symbol, and does copyright have to be registered?
No. In the UK, it is not essential to include the © symbol, although it may be useful to notify the public that a work is protected by copyright. In the UK, copyright arises automatically and there is no registration system.  The standard copyright notice "© [name of copyright owner] [year of first publication]" is also helpful as it creates a legal presumption that the named individual or company is the copyright owner.

Is there copyright in a name, title or slogan?
A name or title cannot usually be protected by copyright, as they are generally not substantial enough to satisfy the requirement that they should be "literary works".  Advertising slogans and catchphrases generally also fall into the same category as names or titles, although in exceptional cases a long slogan may attract copyright protection if it is particularly distinctive and it can be shown that it was clearly the result of the application of considerable creative talent. Alternatively, trade mark rights may offer some protection.

Can copyright protect mere ideas?
No. There is no copyright in an idea, only the form in which an idea is expressed. Therefore, an advertisement which merely borrows the idea or style of an existing campaign, or another copyright work such as a painting, will not infringe copyright.

If I parody a piece of music or commission a "soundalike", is this fair dealing and legally OK?
No, "parody" is not a defence to a copyright infringement claim, and if your piece does anything more then merely "conjure up" the original in the mind of the listener, you may have problems.  The best policy is to take advice before even thinking about a musical parody or soundalike.  It's a very difficult and dangerous area.

If my commercial is only inspired by a well known movie, will I avoid copyright problems?
Not necessarily.  You will certainly not infringe the "film copyright" in a movie unless you use the actual footage.  There may, however, be other rights in the movie you are infringing.  For instance, if the movie is well-known, you may be committing a "passing off" and you could be infringing other copyrights in the movie such as that in the screenplay, the musical soundtrack or the action as a dramatic work.

Can I obtain permission to use a copyright work?
Yes – if the owners agree. The copyright owner can grant a licence to another person to use the work. There may be several parallel copyrights in one work (for example, in the case of music, copyright in the music score, words and recording of the music), and the consent of all the copyright owners must be obtained.

What happens if someone uses a copyright work without permission?
Provided none of the exclusions from liability apply, the copyright owner will be entitled to sue for infringement. The copyright owner may be entitled to damages and an injunction. An injunction may result in an infringing advertising campaign being stopped.