Copyright Counseling and Protection: An Excerpt from the Advertising Law Tool Kit

By Justin E. Pierce & Linda J. Zirkelbach

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear an author of this chapter dive deeper into copyright counseling and protection in this week’s episode.

A properly maintained copyright portfolio is essential to any successful brand owner. Copyright can extend to advertisement copy, manuals, visuals, art, photography, storyboards, scripts, film, video, online components, mobile apps, social media posts, websites, music, developed characters appearing in ads, and logos.

From the outset, it is vital to ensure that you will own the rights to the intellectual property (IP) being created. If any content is created by someone who is not an employee operating in the scope of employment, you need a written agreement in place to ensure ownership, through either a work-for-hire agreement or an assignment, with special nuances in some states, such as California.

In addition, to limit exposure, you must also ensure appropriate clearance of content, such as appropriate licensing of music, footage, images, and other third-party content, with both traditional media and social media.

Consider integrating these best practices into your campaigns:

• Register your copyrights. It is inexpensive and required for litigation, and provides significant advantages, including additional damages and the potential to collect attorneys’ fees. Without a proper and timely registration, protecting your rights may not be financially viable.
• Have the necessary work-for-hire and employment agreements in place for your employees, contractors, interns, and agencies.
• Secure proper licenses or permissions for any materials used in your ads that your company does not own the rights to, including photos, music, video, artwork, graphics, and text, and do not forget content sourced from social media. Ideally, file the licensing documentation along with the actual project itself, so your company can locate the licenses more efficiently in case of a dispute.
• Provide regular training to your employees on the use of third‑party content, including social media posts and other online content, and be sure there is an understanding that “online” does not mean public domain.
• If you host user‑generated content (UGC), take advantage of the safe harbor in the Digital Millennium Copyright Act (DMCA) by having a properly worded designation of DMCA agent on your site; making the required DMCA agent filing, amendments, and renewals with the U.S. Copyright Office; and reacting to proper DMCA take-down notices by taking materials down when requested. But also understand that this safe harbor has its limits and does not apply when the company repurposes or reposts UGC that was directly placed by the user.
• Stay alert for hot topics in copyright—for example, the impact of AI on both ownership rights and potential infringement exposure, the increased emphasis on economics by courts considering the fair use defense; the increased enforcement by graffiti artists and photographers; and shifting rules related to embedding and online linking.
• Check with your insurance carrier to determine whether your existing policies cover IP claims or whether you need to enhance your existing policies.

To learn more about copyright counseling and protection, contact Justin Pierce or Linda Zirkelbach. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.