Can you confidently navigate the maze of intellectual property (IP) laws in your advertising campaigns? If so, power to you! In advertising, creativity and innovation are paramount – after all you are trying to connect with people, in new and engaging ways. The kicker though, is that your messaging and execution has to respect the prevailing legal framework that underpins local trade practices and protects intellectual property rights. While it may seem backwards, IP laws actually stand as guardians of innovation and originality, providing vital protections protecting those that “do” from those that “take”. These laws are pivotal in the advertising industry, ensuring that creative expressions are legally protected while fostering an environment of fair competition and respect for original works. Of course, the protections of IP law are a two way street for creatives – what protects you may also kill you, depending on which side of the issue you find yourself on any given day.

Australian IP laws are built upon a few important building blocks. In general, copyright protects original works like artistic creations and literary copy, trademarks protect brand identities, patents safeguard inventions, and trade secrets maintain the confidentiality of vital business information. Then, there is the common law which provides prohibitions against passing off, and statutes like the Australian Consumer Law (ACL) which makes misleading conduct or false representations illegal. For advertising, digital, PR and marketing agencies, understanding these distinctions is crucial. Copyright, for instance, covers not just written content but also original graphics, music, and video used in advertisements. Trademarks, on the other hand, protect brand logos and slogans, which are often integral to advertising campaigns. Patents might be less commonly involved in advertising but can play a role in protecting and commercialising innovative products. Finally, the common law and statute protect brands from third parties implying commercial connections that do not exist.  

For instance, in any typical advertising campaign, the following material is likely to be involved:

  • confidential information in the concept;
  • copyright in scripts, storyboards, and in the film recording if there are TV commercials;
  • copyright in the music used (but this may be owned by a third party); 
  • copyright in original artwork on a mural in the background, and in the graphics and visuals in the end frames;
  • trademark rights in the logos and trademarks used. 

When you are in the business of creating and publishing communication materials, there is a constant risk of infringing on third party IP rights. Whether it’s using a piece of music without permission or outside the scope of an agreed licence, incorporating a competitor’s trademark into your brand, or using an image of a celebrity in a campaign that implies they endorse your product (when they don’t!) unintentional rights infringement can have significant legal consequences. Conducting thorough IP due diligence, including comprehensive trademark searches and copyright assessments, is essential.  Having your advertising cleared by a specialist as early as possible in the creative process is key. Agencies (and brands) must be vigilant in verifying the ownership and clearance status of all creative elements, ensuring all relevant parties have given rights clearances and licences required.. What a creative may think is a trademark risk may actually be a copyright risk, or they may not know their copyright “fair dealing” from their passing off risk free rides”. 

Once an expert has properly assessed an agency’s material, only then will the creative know they are protecting their client’s brand sufficiently, or (alternatively) that they can go to their client and confidently outline the primary risks of proceeding (or not proceeding) with a proposed concept. 

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So, what should be front of mind when creating new content for a client? Firstly, you need to know what IP building block you are dealing with – is it copyright? Or perhaps a trade mark? Or, perhaps both? Creatives also need to consider their client contracts, as the client may actually own the material on creation, and they may have certain expectations about what needs to be done next.  In terms of strengthening IP rights to the best possible extent, Australian law automatically protects original copyright works from the time of creation, however, taking additional steps such as keeping detailed records of the creative ideation process that led to the production of the works can strengthen an agency’s claim (or their client’s) in case of a future dispute. While unregistered trademarks may offer some protection under common law as discussed briefly above, registering a trademark with IP Australia provides the strongest legal standing in respect of trade marks. Early advice about the registrability of trademarks before they are adopted (and significant capital is expended) is vital to obtain, so a pre-use trade mark clearance check is worth every cent.

There are also times when you and your brand client may decide it is time to shake things up, perhaps by going after a direct competitor in a fun, aggressive, or downright cheeky way – if so,  you definitely need to know the boundaries of the law, and what the pitfalls are. These types of cases can sometimes be the most fascinating to unpack, like in the recent case of McD Asia Pacific LLC v Hungry Jack’s Pty Ltd [2023] FCA 1412, i.e. the “Big Mac/Big Jack” case. This was the case where Hungry Jack’s came to market with a “Big Jack” and “Mega Mack” burger, in a head-on attack on McDonald’s existing (and ubiquitous) “Big Mac” and the apparently forthcoming addition, the “Mega Mac” which is used in other markets. This case, considering trade mark law and consumer law like the ACL, was fascinating in that it involved a very well known brand, and ended up in a very different result than perhaps the ordinary burger pundit may have assumed. The Federal Court found that, despite the popularity and entrenched market awareness of the Big Mac brand, there was no deceptive similarity arising from Hungry Jack’s new Big Jack/Mega Mack brands. When diving into Burley J’s considered decision, it is apparent just how complex the considerations of mimicry, comparison, deception, and cheekiness all are when they overlap with each other, in cases like these.

Intellectual property law extends to packaging and promotional materials. Agencies must be vigilant to avoid ‘passing off’ risks and ensure that their use of imagery, music, or design does not infringe upon third-party IP rights. For instance, trademarks are fiercely protected in the food industry, as seen with Cadbury’s trademark on a particular shade of purple and The Coca-Cola Company’s trademark on the shape of its bottle. 

But what are some of the practical, every-day examples of IP risks in the advertising world? Here are some practical, real-world examples that might all arise with one campaign: 

  1. The ad campaign for a new kombucha product involves coming up with a new tagline, and the client loves it but no one thought to run a trade mark search. It comes out later that the same line is trade marked for non-alcoholic drinks. The agency has an embarrassing problem and needs to come up with a new line fast. 
  2. One of the execs on the account wants to licence a piece of music they like so they ask the relevant record company (i.e. the owner of copyright) for a quote, which comes back as way over budget. So they decide not to go ahead but brief a small artist to create a sound-alike piece of music. They get some paperwork with the artist on fees and usage rights, but nothing on IP ownership or originality. The agency will not own the IP so will not be able to pass that on but should notify the client of the limited rights to use the work. Then when there is a claim from the record company alleging that the sound-alike is way too close and infringes copyright, the agency will find it hard to pin down the artist let alone recover anything. They will also find it impossible to argue it was a coincidence as the paper trail shows a strong inference of copying. 
  3. The team wants to recreate a video that is going viral on TikTok but with a twist to incorporate references to the brand – there will be copyright issues but also passing off as well to consider. 

Agencies can adopt several proactive strategies to ensure compliance and protection of IP rights. Conducting regular IP audits and clearance checks for all advertising materials is essential, as is ensuring trademark clearance checks are conducted before selling branding ideas into clients. Educating staff and clients on the nuances of IP law in advertising, especially in sectors with specific regulations like food, therapeutics and motor vehicle advertising, is vital for maintaining legal compliance. It is not just the agency’s risk that must be considered, but the client’s.

With this knowledge, agencies can strategically navigate the IP terrain. Conducting regular IP audits, educating staff about IP laws, and embedding a culture of legal compliance can transform how an agency approaches its creative processes.

In the fast-paced world of Australian advertising, a robust understanding of IP laws is more than a legal requirement—it’s a strategic asset.

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