In the dynamic world of advertising, the art of communicating a message to promote a product or service is paramount. The effectiveness of an advertisement hinges on its ability to be creative, engaging, and, most importantly, memorable to its audience. To achieve this, advertisers often incorporate various elements such as captivating music, striking images, and unique artwork. These components are deftly woven together to enhance the message, making it more appealing and relatable to the viewer. However, this surge of creativity brings with it a crucial question: where do the boundaries of legal compliance lie when it comes to intellectual property laws and copyright law in particular?

Understanding and navigating the complex terrain of copyright law is essential for marketers and advertisers. This legal domain governs the use of intellectual property (IP) and is pivotal in ensuring that creative endeavours do not inadvertently infringe upon someone else’s IP rights. Conversely, it is equally important for creators to know how to safeguard their own works from potential infringements by others. This balance between using existing creative materials and protecting one’s own creative output is a delicate dance that requires both legal knowledge and strategic thinking.

Below, we delve into the intricacies of copyright law, offering insights and guidance specifically tailored for marketers and advertisers. By shedding light on how to harness creativity within the legal frameworks, this exploration aims to empower professionals in the advertising field to innovate confidently and responsibly. The emphasis is not just on avoiding legal pitfalls, but also on understanding how copyright law can actually enhance and support creative marketing strategies.

 Considering Copyright Law

Copyright law protects specific categories of work, as soon as these works are expressed in material form. The works protected by copyright law fall into these categories:

  • Literary works e.g. books
  • Musical works e.g. songs
  • Artistic works e.g. paintings
  • Films
  • Sound recordings
  • Broadcasts
  • Programme-carrying signals
    Published editions
  • Computer programmes

Once you know that a work fits into one of these categories, the work must still meet three requirements for copyright to subsist:

  • It should be original (not necessarily novel or inventive)
  • It must be in material form (that is, tangible and not just an idea)
  • The author must be a qualified person (in the case of a natural person, that is a national or resident of South Africa or a Berne Convention country and
    in the case of a juristic person, the author must be a body incorporated under the laws of South Africa or under the laws of a Berne convention country).

A few specific issues to bear in mind

Artistic works; e.g. a logo created by a design agency

In this particular scenario, the nuances of copyright law dictate that the ownership of the copyright naturally and immediately vests in the creator, which can either be the author or the agency responsible for the creation, rather than in the client who commissioned the work. To effectively transfer the copyright from the original owner (the author or agency) to another party, a formal written assignment agreement must be executed. This is a crucial step in ensuring legal transfer of rights.

In situations where a logo is created by an agency, and no such assignment of copyright occurs, it’s important to acknowledge the potential legal implications. The agency retains the rights to the logo. Consequently, they possess the authority to intervene and prevent any third party from registering or even utilizing the logo as a trade mark. This scenario underscores the importance of understanding and properly managing copyright issues, especially in creative collaborations, to avoid future legal complications and to ensure that all parties’ rights and interests are adequately protected and respected.

Using songs in advertisements

Songs enjoy copyright protection as sound recordings and musical works. If you’re looking to use or sample a piece of music in an advertisement or any form of content, it’s imperative to obtain the requisite permission directly from the copyright owner. Fortunately, the process is often streamlined as most copyright owners are members of the Southern African Music Rights Organisation (SAMRO). SAMRO plays a pivotal role in facilitating the licensing process on behalf of the copyright owners. This organization provides a convenient and efficient pathway for securing the necessary licenses, ensuring that your use of the music complies with the relevant copyright laws and respects the rights of the creators.

Here’s a hot tip: The channel or broadcaster through which you plan to advertise may already have a blanket licence with SAMRO,  so it may not even be necessary for you to obtain a separate music licence. However, you must confirm this arrangement with the particular medium through which you will be advertising.

When it comes to using music in ads, a cautionary tale emerges from BMW’s experience. In 2020, BMW’s advertisement for the BMW 330is sparked significant controversy on social media. This was due to the background track used in the ad, which bore noticeable similarities to “Spirit”, a popular song by renowned local artist Kwesta. The public backlash highlighted a critical lesson for advertisers: always secure proper permission before using any musical pieces in advertisements. Failure to do so can lead to negative publicity and potential legal issues, emphasizing the importance of respecting IP rights in all creative endeavours.

Featuring personalities in ads

Did you know that image rights or personality rights are protected under South Africa’s common law?

These rights are particularly significant in the context of using the identity or likeness of public figures such as celebrities, brand ambassadors, and influencers. Personality rights encompass an individual’s legal right to control the commercial use of their identity, which includes their name, image, and other unique personal characteristics A noteworthy example of the enforcement of these rights occurred a few years ago involving Basetsana Kumalo, a prominent South African figure. This case unfolded when Cycle Lab used a photograph of Kumalo, taken within one of their stores, for advertising purposes. While Kumalo did not initially object to the photograph being taken, she had not granted explicit consent for its subsequent commercial use. This led to her successfully taking legal action against Cycle Lab. The crux of the case was the unauthorized commercial exploitation of her image. This incident serves as a vital lesson for businesses and advertisers: obtaining explicit permission is essential before utilizing anyone’s identity, name, or likeness in any commercial capacity. It underscores the importance of respecting individual rights in marketing and advertising strategies. Such legal considerations are crucial to avoid infringement of IP rights, which can result in significant legal consequences and damage to a brand’s reputation.

Carefully Crafted  Contracts

Here are a few contracts that can go a long way in helping you avoid legal hot water. These contracts, when correctly drafted, ensure smooth operations and legal compliance and serve as your first line of legal defence.

Assignment agreements: Assignment agreements are used to transfer the ownership of copyright. These agreements must be in writing and signed by the assignor. It’s important that these agreements define the copyrighted work. Be aware that moral rights, designed to protect the author’s honour and reputation, cannot be transferred, but they can be waived by the author.

Licensing agreements: Licensing agreements are relevant when the owner of the copyright wishes to retain ownership but wants to allow a third party to use the copyrighted work. These agreements are often relevant when it comes to using music and images – like the “stock images” that come from image libraries. Among other things, your licensing agreement should stipulate how the work can be used by the licensee

There are three types of licence:

  • Exclusive: only the licensee can use the material,
  • Sole: both the licensee and the licensor can use the material and,
  • Non-exclusive: the licensor retains the right to license the material to third parties.

Non-disclosure agreements: Non-disclosure agreements (NDAs) are essential legal tools, especially when you have a brilliant idea that you’re eager to share. Before revealing your concept to anyone, it’s crucial to ensure that appropriate protective measures are in place. An idea, in its raw form, is vulnerable and not inherently protectable. Having an NDA in place between the involved parties creates a legal framework that safeguards your intellectual property, ensuring that your innovative ideas remain confidential and secure from potential misuse or unauthorized disclosure.

A final piece of advice

the pervasive nature of copyright in our daily lives, spanning across various mediums and platforms, underscores the importance of cautious deliberation in our interactions with creative works. Whether it’s a piece of music, a striking photograph, an insightful article, or any other form of intellectual property, it’s imperative to pause and consider the origins of these works. Utilizing content that is not your own creation carries significant responsibilities and potential legal implications. Therefore, adopting a mindset of respect and due diligence towards the intellectual property of others is crucial. Remember, when faced with uncertainty about the use of someone else’s work, the safest and most respectful course of action is to seek permission. This approach not only ensures compliance with legal standards but also fosters a culture of mutual respect and ethical practice in the creative and intellectual community.