Field Notes Inside an Integrated Communications Agency

The rise of social media, user-generated content, instant pop culture icons and hefty licensing deals are blurring the lines of intellectual property and public domain issues. Understanding copyright laws and their intention is becoming increasing difficult to navigate.

Copyright issues are complex and exhausting but I admit I really dig it. At Capstrat we don’t attempt to know all the details. We seek legal advice. There are pounds and pounds of material written on copyrights. Even the brief from the patent web site is 277 pages! That’s impossible to reference on a daily basis. Below are a few frequently asked questions that assist us in making the right decisions.

What’s the benefit of using copyright-protected work? It often adds instant value or credibility to the message. These references are often the golden threads that tie cultures together. Companies spend millions to develop their property by creating awareness and affinity.

What options do I have for using others’ material in my work? If copyright-protected, you must gain permission from the owner. That often involves compensation. Obviously the more popular the material, the heftier the fee. If in the public domain, the work is available for use.

What happens if I do not gain permission? You risk lawsuit. Companies (and courts) place a high value on intellectual property. Infringement means loss of revenue to these companies. They protect against infringement vigilantly.

It’s only for internal use, isn’t that okay? No. When you infringe on someone’s copyright you break the law. The risk may be lowered with a limited audience, but there is still risk.

Imagine speeding through a stoplight at 85 mph. You’re breaking the law whether an officer is there to catch you or not.  In addition, today’s instant message world means nothing truly stays exclusively internal. Fact is, some of the recent lawsuits were initiated by an internal whistle blower. Large, deep-pocketed companies are increasingly sensitive to this.

What about if I buy the movie or CD, can I use it then? No. The price you pay does not mean you own the rights any more than buying a copy of “Bonfire of the Vanities” makes you Tom Wolfe.

Can’t I simply change it a little, so it is not exact? The purpose of using valuable copyright-protected materials means utilizing the equity in that material. To be safe from infringement your work would need to change so it is not recognizable by the average person.

If your work is still recognizable, then it’s infringement. Confusion comes from parodies happening before 1982 law changes. We’ve all seen fake products that rip off well-known brands (like Beerwiser). Big brand names believe this causes marketplace confusion resulting in lost revenue.

How about just a snippet, like a sample? Again, without permission and recognizable, it is risky. Obviously, the more recognizable the more the risk of infringement.

So, how do rappers get away with it? They either gain permission from the owner, are forgiven because of their artistic merit or pay huge settlements. Two words: Vanilla Ice.

Are there legal ways to use protected material without permission? Yes. Certain uses of copyrighted materials are protected under law. Artistic expression, including satire and parody, editorial, critique or educational purposes are common. The important distinction is that although businesses educate their employees or produce editorial content, their mission is primarily to make money. That is not protected by copyright law.

So, if I shoot a photo of Madonna then it’s mine to use, right? Yes and no. You own the copyright to the photograph. However, due to the “Right of Celebrity” clause, you do not have the right to use a celebrity’s likeness without permission. It’s important to realize that “likeness” covers not just image but also name, nickname, voice characterization, catch phrases and identifying elements such clothing or hairstyle. Basically anything that can be related to a particular celebrity is protected. Bette Midler was awarded $400,000 from Ford Motor Company because they used a look alike.

How do TV shows, like SNL get away with parody? A Saturday Night Live parody is theatre and considered artistic expression. The network buys episodes from the production company. The network then sells airtime to advertisers to help fund its shows.

Some of my favorite copyright stories:

Basketball bad boy Dennis Rodman filed for copyright protection for his tattoos.

Carlos Santana and George Benson filed to protect their guitar “sound.”

Johnny Carson once filed suit against a company called “Here’s Johnny Portable Toilets.”

Harley-Davidson filed to trademark their distinctive sound. Nine competitors filed opposition arguing their engines sound similar. After six years of litigation, Harley-Davidson withdrew the application.