This is the second of a two-part series on dealing with the perils of intellectual property infringement.
The issue of what is public property and what is somebody’s intellectual property (IP) can be particularly tricky for people working in the creative and media industries, because it’s their job to tap into popular culture and to find a new twist to a well-known phrase or image to help promote a brand or a product.
Iconic artworks, writings and lyrics have always been a part of our popular culture, but the Internet has helped to make them globally recognisable. Though these works are widely available on the web it’s wrong to think they’re free to use. The application of copyright law in the digital world is hotly debated and it can be difficult to understand when and how you can use an image or catch phrase.
At Hiscox we have dealt with claims from clients in advertising and marketing businesses resulting from disputes over their use of images in campaigns. If you work in this industry, even if you’re a small business, it’s important that you have a procedure to work out whether you are using something in your ads that is owned by somebody else.
In many cases it’s easy: a photo, a film clip or an artwork is likely to be copyrighted, so you need to find out who owns it and pay for their permission to reproduce it. Someone in your business needs to be in charge of the clearance process for using images in your campaigns, so you don’t inadvertently infringe someone’s copyright and end up facing an expensive claim.
If you’re working on behalf of a client then it needs to be crystal clear which of you is responsible for obtaining clearance for IP rights. That sounds simple, but we have had cases where an ad agency and its client thought the other was responsible for sorting it out. The result was that neither got the permission and they were hit with a hefty claim from the rights holder for unlawfully using their work.
Simply borrowing an artist’s recognisable method or technique without consent can land you in legal hot water. There was a case recently where an artist sued a creative agency for using what he claimed was his ‘trademark’ style in one of their campaigns.
Being aware of what and how you are using other people’s work and taking the right steps to gain approval can help avoid a law suit and let you get on with running a successful business.