Ad Law

The Essential Guide to Advertising Law and Regulation

Richard Lindsay, Richard Lindsay

• Publisher: Kogan Page
• Year: 2016
• ISBN:
  9780749472900
• Edition: 1
• Topic: Law
• Subtopic: Financial Law
• Index: Law

Ensuring marketers and advertisers are aware of the laws and regulations of advertising is now more important than ever. If a campaign is found to be potentially offensive, harmful, or misleading, it can 'go viral' in just the click of a mouse, and the implications of breaching those laws are likely to be both damaging and costly to a brand's reputation, its creative work, and the strategic planning behind it. Now offering level-headed advice on everyday questions encountered when designing and running promotional campaigns, Ad Law, the new book from the Institute of Practitioners in Advertising (IPA), is the ultimate handbook to the law and regulation of advertising and marketing communications. Containing guidance based on real-world experiences from media and advertising lawyers and the IPA legal team, this book expertly leads readers through the most applicable laws and regulations, common pitfalls and the practicalities behind them, such as the new industry-standard client/agency agreement. Covering issues such as intellectual property, privacy and defamation, plus the self-regulatory framework, Ad Law is the ideal companion for any advertising and marketing professional, or lawyer working within these sectors.

Part one

Intellectual property: The law and content rights

01

Copyright

MICHAEL GARDNER

Introduction

Copyright is so important in the context of advertising that everyone who works in the industry should have at least a basic understanding of the main principles.

Copyright is by far the most widespread of the intellectual property rights covered in this book. For example, everyone reading this chapter will be a copyright owner, whereas relatively few will own trade marks or designs. The penalties for failing to have regard to copyright, whether one’s own copyright or a third party’s, can be severe. More positively, the benefits of a greater understanding of copyright can be significant.

What is copyright?

Copyright is a legal right which enables its owner to prevent others from copying or dealing with copies of the work that is protected by copyright. It differs from registered trade marks, patents and registered designs in two key respects.

First, in the UK at least, the creation of copyright requires no registration or other formalities. It arises automatically whenever the conditions are met for the creation of a valid copyright work and provided the copyright work is recorded in some permanent form.

Second, it does not create a statutory monopoly over the copyright work. It protects only against the copying, or dealing with infringing copies, of a work.

There are a number of categories of copyright work. These cover virtually every type of creative material likely to be used for advertising – in whatever media – including, for example:

• television or radio commercials;
• pop-up or banner adverts on the internet;
• PowerPoint presentations for new pitches;
• research reports, including charts, tables and supporting databases;
• billboard advertising, posters, signs and point-of-sale materials;
• packaging and promotional material;
• media schedules; and
• photographs and content on social media.

In practice, there will often be different types of copyright work subsisting in the same type of advertising material.

In the UK, copyright law is governed by the Copyright Designs & Patents Act 1988 (CDPA). This statute has been extensively amended over the years, not least to cope with the onset of the internet and the digital age which has almost entirely grown up since the CDPA was enacted.

The CDPA is complex and runs to over 300 sections. Worse still, EU legislation concerning copyright and the involvement of the European Court have made the law even more complex. A detailed examination of all of this law is beyond the scope of this book. Instead, in this chapter, an attempt will be made to summarize the most important points as they relate to those engaged in the advertising industry.

What types of copyright work are there?

The CDPA sets out a number of different types of copyright work that can be protected. Many of these have their own particular rules governing such matters as the length of time the copyright protection will last, how it can be infringed and so on.

The different types of copyright works are:

• original literary works;
• original artistic works;
• original dramatic works;
• original musical works;
• sound recordings;
• films;
• broadcasts; and
• typographical arrangements of published editions.

In addition to these types of copyright, the CDPA also provides protection for two further categories of rights: performers’ rights and moral rights.

It is worth exploring in more detail some of the key aspects of the various types of copyright. This will help advertisers recognize the rights they have and avoid infringing the rights of other copyright owners.

Literary, artistic, dramatic and musical works

The CDPA stipulates that, in order to enjoy copyright protection, literary, artistic, dramatic and musical works must be ‘original’. What does this mean?

It is important to note that originality for the purposes of copyright law does not have the same meaning as might be thought. In a copyright context it has nothing to do with the literary or artistic merit of a particular work. Rather, the concept of originality means that a work must be the product of at least an investment of some independent skill and labour on the part of the author of the work or the author’s own intellectual creation. It cannot simply be a slavish copy of something.1

Literary works

A literary work means any work (except a dramatic or musical work) which is written, spoken or sung and includes, inter alia, a table or compilation, a computer program or a database.2

In relation to advertising, a literary work could include the script for a TV or radio advertisement, the text of a brochure, the text of a print advertisement and so on. But it would not cover single words such as a product or brand name – in spite of the fact that considerable research and investment often accompanies the choosing of a new brand identity.3 Traditionally it has been hard to argue that simple slogans used in advertising can be protected by copyright. But developments in European law may well have made this possible.4 Where slogans are important, it would be best to try to protect them as registered trade marks (eg Tesco’s slogan ‘Every little helps’).

Artistic works

These would include a graphic work (such as maps, drawings, charts etc), photograph, sculpture or collage (again, irrespective of artistic quality), works of architecture such as a building or a model for a building or a work of artistic craftsmanship.5

While a brand name in the form of simple words would almost certainly not be protected as a literary work, a stylized version of the brand name in the form of a logo could be protected by copyright as an artistic work (as well as by a trade mark or design).6

Dramatic works

A dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience. These include a work of dance or mime or a play. As a...