IP issues in advertising and marketing

What you need to know (in a nutshell)

1. Using third-party content without a proper license or permission for commercial use can result in trademark or copyright infringement and have serious legal and commercial consequences.
2. Third-party content can include images, music, quotes, cartoons, stories, articles, captions, songs, and social media posts.
3. The use of a third party’s trademark in advertising material can also constitute trademark infringement and potentially misleading and deceptive conduct under the Australian Consumer Law (ACL).

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Companies of all sizes, from budding startups to multinationals, often use attractive photos and thought-provoking quotes for their marketing. However legal action may be taken if the content is not properly licensed or permission isn’t obtained from its intellectual property owner; this can have serious repercussions both legally and commercially. This problem is more widespread than many think.

Copyright infringement - using pictures, quotes, designs and music

Companies making ads assume that any material representing their brand can be freely used by the public. While some content is indeed free to use, even commercially, most creative works need a licence or permission before being repurposed. This necessitates taking into account intellectual property rights when advertising.

The copyright holder must agree to the business using their image, or other intellectual property, for commercial purposes. They may permit a print ad in a magazine but not allow printing it on t-shirts intended for worldwide sale.

Copyright infringement encompasses more than just pictures and photos; it also applies to music, cartoons, text content such as quotes or articles, songs, captions for social media posts etc.

Pictures

Content creators often wrongly believe they can use any photo or image from the internet. However, even if a picture is publicly accessible, it may still need to be licensed for commercial purposes. It’s also important to note that when someone has taken an image of you and your business (like paparazzi shots of celebrities at places) permission should still usually be sought out from the photographer

Music

To legally use certain music in promotional material or social media, even if it’s a tiny chorus or segment of the track, one must obtain permission. Instagram and similar platforms may offer free access to music. However, this doesn’t necessarily mean that they can be used elsewhere without approval. It’s commonly asked whether people can incorporate sections of songs into their campaigns on other channels - generally speaking the answer is no unless you have acquired consent beforehand.

Cartoons

Businesses commonly include cartoons they found online in their advertisements and talks. Famous cartoonists are usually represented by law offices that keep an eye on the web for unauthorised copies of their clients’ work, using techniques such as reverse image searching.

Use on social media platforms

Some businesses make the mistake of thinking that third-party quotes, poems and writings they post on social media are in the public domain. Or alternatively, they think giving credit where it’s due is enough for copyright compliance. However, simply giving credit isn’t an infringement defence.

Trademark infringement - use of trademarks in advertising

It’s a delicate situation to use another party’s trademark in an advertisement. This could be considered trademark infringement, as well as violate the Australian Consumer Law with misleading and deceptive conduct.

If you create a sports brand and use Gucci trainers on your models in the print catalogues and display their trademarks without permission, this could be infringing upon Australian Consumer Law. It may also breach trademark law - either way, it is possible to face consequences for such actions.

Obtain approval from a trademark owner before using it in your promotional content.

Can comparative advertising infringe a trademark?

Comparative advertising is the only exception to using another business’s trademark without their consent.

Is comparative advertising legally permissible?

Legally, a competitor’s trademark may be used in ads if the comparison is fair and truthful. Care must be taken to present an accurate picture; comparisons should only use full truths and no omissions that create false impressions. To do this correctly it can often require expert legal advice before any significant comparative advertising campaigns are launched.

Preventing legal issues in ad and marketing campaigns

Marketers should be briefed on when to alert counsel of possible IP issues in ads. Legal review is necessary for important or large campaigns, as well as any noteworthy assertions before publication. Third-party content must have the proper licensing from copyright holders or their representatives prior to usage.

No matter which side of a trademark, copyright or intellectual property dispute you’re on, make sure to get proper legal advice quickly. This is an intricate field so it’s important to determine your rights and legal position in the situation as soon as possible.