It’s not uncommon for businesses, from start-ups to large corporate enterprises, to use a great photo or interesting quote they found online in their own internal or external marketing communications. But the use of a third party’s creative content in one’s own marketing materials without the proper licence or permission of the intellectual property owner can constitute trade mark or copyright infringement, which can have serious legal and commercial consequences. These issues are much more common than many businesses realise, and often result from a basic misunderstanding as to what is or isn’t allowed in relation to the use of another party’s copyright protected content or trade marks. The consequences of intellectual property infringement can be significant, apart from the costs and potential embarrassment of having to pull down an infringing campaign, businesses may face significant damages claims and other legal outcomes they would much rather avoid. Below we detail some of the basic rules around the use of third party intellectual property in advertising and marketing communications and look at some of the common mistakes companies make in this regard.
Use of Images, Quotes, Designs & Music | Copyright Infringement
Many marketing teams mistakenly believe that content that is publicly used by a brand, may be used freely by others outside the brand. While there are some free-to-use options, even for commercial use, most creative content can only be used with the right licence or permission. This is where the intellectual property in advertising will come into play.
This means the copyright owner must agree to allow the business to use the image, or other intellectual property, and they must agree to that particular commercial use. For example, a photographer may agree that a business can use their image in a print advertisement that is to appear in a glossy magazine, but may not want the business to print the image on t-shirts that they plan to sell in chain stores around the world.
Copyright infringement is not just specific to images or photos either. It also includes music, quotes, cartoons, stories, articles, captions, songs, social media posts, and more.
Images
One of the most common misconceptions amongst content creators is that they can freely use a photograph or image that has been published online. This is mostly incorrect and even photographs that are publicly used will generally require a licence to use commercially. Another interesting fact is that even when you, your venue or business is the subject of a particular photograph, such as when the paparazzi takes a photograph of a celebrity at your shop, you will still require the permission of the photographer or copyright owner, before you can use or publish that photograph elsewhere. Using the photo without a licence will constitute copyright infringement. The same applies to other designs or imagery.
Music
Similarly, you need a licence to use a specific piece of music in your advertising or social media, even if it is just a chorus or key (but small) part. Some platforms, like Instagram, provide a range of music options that are free to use on their platform, but just because they are usable in this way on these platforms, does not mean the music can be used in any other way without permission. Many of our clients have asked if they can just use a snippet of a song on their socials or in a campaign, and the answer is usually no, not without permission!
Cartoons
We also often see companies using relevant cartoons they’ve found online in their marketing materials and presentations. Many well-known cartoonists are represented by legal firms that will monitor the internet for infringing copies of their clients’ cartoons through reverse image searches and the like. We have had a client receive a cease and desist letter from lawyers in the US who found that a number of their client’s cartoons had been used in our client’s sales presentations. Their damages claim was substantial. And remember, referencing the artist or cartoonist is not sufficient – unlicensed use still constitutes copyright infringement.
Social Media
A lot of businesses also post inspirational or interesting third-party quotes, poems and other writings on their social media accounts under the mistaken impression that these are automatically in the public domain. Alternatively they believe that naming the source of the quote or writing, is sufficient to satisfy copyright requirements, but, as mentioned above, attribution is not a defence to copyright infringement.
Use of Trade marks in Advertising | Trade mark Infringement
The use of a third party’s trade mark in one’s advertising material is another tricky area. Using another party’s registered trade mark in your own advertising material might not only constitute trade mark infringement, but could also constitute misleading and deceptive conduct in terms of the Australian Consumer Law.
Say for example you are launching a new sportswear brand, and you want to project a certain type of look and feel. You accordingly have all your models wearing Gucci trainers in your print catalogues and prominently feature Gucci trade marks throughout the catalogue without their permission. This is likely to be a breach of the Australian Consumer Law as you are potentially implying some sort of affiliation with or sponsorship by Gucci. It may also be trade mark infringement, and in both instances, you can find yourself liable for significant damages.
You should accordingly seek permission from the owner of a registered trade mark before using it in your marketing material.
Is Comparative Advertising Trade mark Infringement?
However, there is one surprising area where it is legal to use your competitor’s trade mark without their permission, and that is for the purposes of comparative advertising.
Is comparative advertising legal?
Yes, it is legal to use your competitor’s trade mark in a comparative advertisement in certain specific circumstances. The advertisement and the comparison made, must be fair and accurate and must not be misleading for the entire lifespan of the advertisement. You must compare apples with apples, and you cannot rely on half-truths or omissions to create a misleading impression. It can be tricky to get this right, so significant comparative advertising campaigns should always be legally vetted before being published.
How To Avoid Legal Issues in your Advertising & Marketing Campaigns
It is always important to train marketing teams on the basic rules of Intellectual Property use in advertising collateral so that they know when to flag something for legal review. Any campaigns, or high impact or significant claims should be reviewed and approved by your legal team before being published. Where third party content is being used, in any way, appropriate licences should be sought from the copyright owner or their representative agency.
Regardless of which side you are on in any trade mark, copyright or intellectual property dispute, ensure you seek legal advice quickly. This is a complex area, and you will need to promptly determine exactly what rights you have and where you stand in the matter.
Related Articles: Who owns intellectual property created by independent contractors and employees?
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If you are seeking advice about a trade mark or copyright issue you are facing, looking for advice on copyright ownership or need assistance with drafting licensing agreements for the use of your intellectual property, reach out to Brigit or Zan for a free, 30 minute no-obligation consultation here. If you are looking for a solution to ensure your advertising is compliant and avoids these issues, learn more about our advertising review service AdUP by clicking here.
