This article has been written by Mr. Ritesh Palaur, a 2nd year student of Sambalpur University, Burla.
Abstract:
This comprehensive exploration delves into the intricate landscape of copyright infringement in the realm of advertising. Unveiling common issues faced by advertisers and creators, this analysis scrutinizes legal precedents, emerging challenges, and pragmatic solutions to navigate the evolving terrain of intellectual property rights. With a focus on India’s legal framework, this document provides a deep dive into the multifaceted issues surrounding copyright infringement in advertising and offers insights into strategic solutions for stakeholders in this dynamic industry.
Introduction:
In the fast-paced and ever-evolving world of advertising, where creativity is the currency and originality is prized, the specter of copyright infringement looms large. This introduction sets the stage for a nuanced exploration of the common issues plaguing the advertising industry concerning copyright infringement. From unauthorized use of creative content to the complexities of fair use, this analysis aims to dissect the challenges faced by advertisers and creators alike.
In the dynamic realm of advertising, where creativity fuels campaigns and fosters brand identity, copyright infringement poses a significant threat to the rights of creators. This exploration delves into the common issues surrounding copyright infringement in advertising, unraveling the intricacies that often lead to legal disputes. By dissecting notable cases and offering practical solutions, we aim to provide a comprehensive understanding of how to navigate the nuanced landscape of copyright protection in the advertising industry.
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright infringement means that the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being breached by a third party. Music and movies are two of the most well-known forms of entertainment that suffer from significant amounts of copyright infringement. Infringement cases may lead to contingent liabilities, which are amounts set aside in case of a possible lawsuit.
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder.
Individuals and companies who develop new works register for copyright protection to ensure that they can profit from their efforts.
Other parties may be granted permission to use those works through licensing arrangements or buy the works from the copyright holder.
Copyright infringement typically involves someone using another person’s original creative work, or a copyrighted work, without permission.
There are many types and forms of copyright infringement. These are some examples of activities that would constitute copyright infringement if you carry them out without first obtaining permission from the owner, creator, or holder of the copyrighted material:
- Recording a film in a movie theater
- Posting a video on your company’s website which features copyrighted words or songs
- Using copyrighted images on your company’s website
- Using a musical group’s copyrighted songs on your company’s website
- Modifying an image and then displaying it on your company’s website
- Creating merchandise for sale which features copyrighted words or images
- Downloading music or films without paying for their use
- Copying any literary or artistic work without a license or written agreement
Understanding Copyright Infringement
Individuals and companies who develop new works and register for copyright protection do so in order to ensure that they can profit from their efforts. Other parties may be granted permission to use those works through licensing arrangements or may purchase the works from the copyright holder; however, several factors may lead other parties to engage in copyright infringement.
Reasons include a high price for the authorized work or a lack of access to a supply of the authorized work.
Tips for avoiding copyright infringement
While by no means an exclusive list, these suggestions will help you avoid inadvertently pirating another individual’s creative works:
Understand what copyright laws protect. Copyright laws are often confused with trademarks, patents, and licenses. Although these are all forms of IP, copyrights are perhaps the easiest to obtain and also to violate—either intentionally or unintentionally. Familiarizing yourself with the U.S. Copyright Act of 1970 and the Berne Convention regulations is a good start.
If it’s not your original work, don’t use it. We’re all probably familiar with the saying, “If it’s not yours, don’t touch it.” Copyright laws adhere to the same philosophy: the golden rule is to obtain the express permission from the owner, creator, or holder of the copyrighted material. Unless you’re the creator of the work, you’re not allowed to use it. This is true even when there is no copyright symbol associated with a work.
What you find on the internet is generally not fair game. Generally speaking, anything you see or read on the internet has been copyrighted, by default, given that the material (blogs, literary or artistic works, etc.) were created by someone else. If you copy, reproduce, display, or otherwise hold out another’s work (such as an image, musical recording, article, or any other type of work that you did not create) as your own, you are undoubtedly infringing on copyrighted material. This is true whether you benefited financially from the use or not.
Common Issues in Copyright Infringement:
Visual Elements and Design:
Issue: Unauthorized replication or adaptation of visual elements, including graphics, logos, and layouts, can lead to disputes between original creators and alleged infringers.
Solution: Establishing a clear visual identity through trademarks alongside copyright protection can reinforce legal standing. Regular monitoring and swift action against potential infringers are crucial.
Jingles and Musical Works:
Issue: Catchy jingles and musical compositions are susceptible to unauthorized use, potentially diluting the uniqueness of an advertisement and leading to disputes.
Solution: Registering musical works with copyright authorities provides a robust defense. Licensing agreements should be clear and enforceable to mitigate potential conflicts.
Plagiarism of Copy and Concepts:
Issue: Copywriting and conceptual elements are often subject to imitation, raising issues of plagiarism and dilution of brand messaging.
Solution: Clearly documenting the creative process and securing copyright for written content is essential. Developing unique and distinctive concepts can bolster legal defenses.
Photographic and Cinematographic Works:
Issue: Unauthorized use or reproduction of photographs and video content can lead to disputes over ownership and licensing rights.
Solution: Clearly defining ownership and usage rights through contracts and licenses is crucial. Regularly auditing and documenting the use of visual content can aid in identifying infringements.
Social Media and Digital Platforms:
Issue: The rapid dissemination of content on social media and digital platforms increases the risk of unauthorized sharing and reproduction.
Solution: Implementing robust digital rights management strategies, including watermarks and tracking tools, can deter infringement. Quick response to online violations is vital.
Legal Perspectives on Copyright Infringement in Advertising:
Substantial Similarity Test:
The legal framework often employs the “substantial similarity” test to determine if an alleged infringing work is substantially similar to the original, considering both the extrinsic and intrinsic elements of the work.
Fair Use and Parody:
Courts assess fair use defenses, considering factors such as purpose, nature, amount, and effect on the market. Parody, if executed appropriately, may be protected under fair use.
Secondary Liability:
Advertising agencies and platforms may face secondary liability if they knowingly contribute to or benefit from copyright infringement. Understanding and mitigating such liabilities are critical for all stakeholders.
Notable Case Studies:
Nike, Inc. v. MSCHF Product Studio, Inc.:
Examining the case of Nike’s copyright infringement claim against MSCHF over the “Satan Shoes,” exploring the boundaries of artistic expression, parody, and commercial use.
Viacom International Inc. v. YouTube, Inc.:
Analyzing the legal implications of user-generated content on platforms like YouTube, addressing issues of contributory infringement and safe harbor provisions.
Preventive Measures and Solutions:
Comprehensive Contracts and Agreements:
Drafting clear and comprehensive contracts specifying ownership, licensing terms, and usage rights can prevent misunderstandings and disputes.
Copyright Registration:
Registering creative works with copyright authorities provides a strong legal foundation, making it easier to enforce rights and claim damages in case of infringement.
Regular Audits and Monitoring:
Conducting regular audits to monitor the use of creative content helps identify potential infringements early, allowing for swift and effective legal action.
Education and Awareness:
Educating teams and stakeholders about copyright laws and best practices fosters a culture of respect for intellectual property, reducing the likelihood of inadvertent infringement.
How do I report and address copyright infringement?
Although private and government agencies accept and process copyright registrations, those entities don’t normally address alleged copyright infringement claims. As the creator, owner, or holder of the copyrighted material, it’s up to you to enforce your rights to stop the infringing activity.
Perhaps the most straightforward and commonly used method to stop copyright infringement is to send a so-called Copyright Infringement Notice directly to the offending party.
This is a written notice that identifies the copyrighted subject matter, specifies the alleged infringement or unauthorized use, and threatens action if the infringing activity is not immediately terminated. The notice may also seek fines and penalties for the past unauthorized use of the copyrighted work.
A Copyright Infringement Notice (or a Notice of Claimed Infringement) is much like a “cease and desist” letter, commanding the infringer to immediately stop the infringement, undo any potential harm, and remove usages of the copyrighted material from public display at once.
If the first method doesn’t succeed, a second option is for you, as the copyright owner, to file a civil lawsuit against the infringing party. In the lawsuit, you will need to prove that your copyright precedes any usage of the materials by the infringing party. You can typically request a court order demanding the infringing party to immediately stop using the copyrighted material and ask for money damages (that is, monetary compensation) for any actual harm that has occurred as a direct result of the infringement.
Penalties for Copyright Infringement
Courts intervene in copyright cases in several ways. One common goal of copyright litigation is an injunction preventing any further violation of a copyright by the defendant. A court can even order the seizure of infringing materials to prevent further proliferation.
Plaintiffs also typically seek monetary compensation. They can also be entitled to compensation for legal fees, and stand to receive significantly increased compensation if they can prove infringement was committed willfully. The minimum fine for infringement of copyright is INR 50,000 and imprisonment for six months.
Bottom Line
In line with other intellectual property laws, copyright law aims to balance the personal interests of creators with the public’s broader interest in freedom and access. This doesn’t always mean copyright disputes get resolved in ways that seem fair.
Some level of protection for intellectual property, however, is essential to fostering innovation in business, research, the arts and more because of the incentives (financial or otherwise) it preserves for creators. Ultimately, copyright protection is important for small-scale creators and big businesses alike and understanding how infringement works is essential to interacting with copyrighted material at any level.
Conclusion:
In the dynamic landscape of advertising, the specter of copyright infringement looms large. By understanding the common issues, legal perspectives, and implementing preventive measures, advertisers can navigate this intricate terrain while safeguarding their creative endeavors. As the industry continues to evolve, a proactive approach to copyright protection becomes indispensable, ensuring a balance between innovation, inspiration, and legal compliance in the vibrant world of advertising.
As the advertising industry continues to evolve, the ability to navigate copyright infringement challenges becomes paramount for safeguarding the integrity of creative works and preserving the delicate balance between inspiration and infringement.
References:
https://www.forbes.com/advisor/in/business/what-is-copyright-infringement/
https://www.legalzoom.com/articles/how-to-avoid-copyright-infringement
https://www.investopedia.com/terms/c/copyright-infringement.asp