Features

Preventing Infringement: Unpoetic license

Preventing InfringementCreative materials can be made up of several different components, each of which may be subject to various intellectual property or copyright laws, or be bound by a contractual instrument – and the rights may be held by a number of people. Optim Legal lawyer Danny King looks at how to reduce the risk of infringement.

Film, television, and especially TVC production rely heavily on the unique creative that the production itself is based on. But what is ‘creative’?

Creative refers to ideas, and the graphical or written distillation of such ideas. In many cases creative will be an intangible thing, such as a song or image, which can then be recorded in a physical form – like recording the song on your hard drive, or placing the image on a piece of paper.
Creative can also be a collection of many separate components, such as a pitch for a television commercial treatment, which may include elements such as a recorded well-known song, branding, concept boards compiling various images, a story line, a new jingle or catchphrase. In these cases, there may be many different types of material that are owned or subject to the rights of other people. It is these cases when you must be careful to reduce your risk of infringement.

WHO OWNS CREATIVE?
This is a very complex issue, and in every case the person wanting to actually use the creative (including incorporating someone else’s creative into a broader pitch) needs to be aware of the aspects of the law that apply in this area.
In a strict sense, it may be that no one actually “owns” the creative like one may own a car – rather there may be a number of rights in the creative that interplay with each other.
The more elements that form part of a collective creative project, especially treatments for television commercials, the more complex this issue becomes.
Some of the legal concepts that apply to creative are:
Copyright, a legal concept that provides certain rights to the person or entity who first places an original idea into material form (that is, by writing it down, drawing it, or recording it in some physical way).
Copyright materials produced by employees are automatically owned by the employer (unless there is a contract which provides otherwise) – though the employee may have moral rights in the material which, among other things, may require the material to be attributed to them (which can be waived in an employment agreement). Copyright materials produced by contractors do not automatically vest in the person paying for their work. In both cases, it is desirable for contracts to be in place so that
the person actually paying for the work to be done can rely on having the relevant copyright in those materials.
For something to be copyrighted, it must be original. If two people come up with the same idea, then as long as they were both absolutely independent and simply thought of the same thing, they will not get in trouble for breaching copyright laws. However, if one person thinks they have an idea but it is actually something they have seen before, then they are subconsciously copying, which is a breach of these laws.
If, in your creative, you use material that someone else has copyright in, then you will need a licence to be able to use that material. In its simplest form, a licence can be consent from the rights holder to use the material in your creative. The rights holder may want to have a more formal licensing agreement, like many stock image providers.
Intellectual property, such as trademarks. If, in your creative, you use someone else’s trademark, then similarly to copyright, you will need a licence.
There are many trademark owners that are immensely protective of how their IP is used, and if you are planning on using a trademark (in any form, including names, logos or even colours, such as the Cadbury purple) it is a very good idea to make sure you can get the licence you need before progressing too far with your creative.
• As far as creative is secret, then it may be protected by confidentiality. For something to stay “confidential”, it needs to be not generally known – or not in the public domain.
If your creative includes confidential information of others (such as something that a client has told you about a new product), then the creative itself will need to be treated very carefully, so that you don’t inadvertently disclose the confidential information in a way that removes the secrecy, and thus confidential protection, of the material. If you do remove the confidentiality of material, you may be exposed to actions for breach of contract and the general protections afforded by equity.
The obligation to keep something secret exists in many circumstances; however it is best protected by express contracts – such as employment agreements, non-disclosure agreements, services agreements or supply agreements. In the context of pitching creative to third parties, being clear about providing the creative itself on a “commercial in confidence” basis will also assist to keeping that information confidential.
If the secrecy of your creative is maintained, then there will be much less chance of anyone else using it without your permission.

BETTER SAFE THAN SORRY
While you are playing around with concepts to frame up your creative, you are essentially “proofing” ideas and at that stage are likely to have a low risk of being in breach of the above concepts. This is the time where you need to identify what licences you may need to use certain elements of the creative, and can set about getting the consents you need.
Even where you think you have validly entered into the licences that you need, it could be that you are still exposed to breaching of a third party’s rights. For instance, if the person granting you the licence is not authorised to do so, then you do not have the consents you actually need. It is important to make sure that the licence is valid, and if you are not sure whether this is the case, you may need to seek professional advice.
Once you actually crystallise your creative, and look to exploit it, you should have all of the licences in place that you need. Failure to do so may result in court action being taken, with substantial damages and legal costs.
In all cases, it is essential to approach the holder of the relevant rights in the materials in question. Sometimes this will be easy – such as a stock or library of images. Some cases may be more difficult, and you might need professional assistance to gain the appropriate licences.
An especially problematic area when in the process of gaining the appropriate licences is where you simply aren’t sure whose idea it was in the first place. Be careful when using the internet as a source – whilst it may look like a free source, the website itself could be in breach of licensing provisions or simply not own the content to gift to you. Also, relying on materials produced by your staff may be problematic, make sure they know what is and is not OK to use without gaining further permission. Finally, if you think you may have seen or heard of an idea before, chances are you have – do the research and check that what you think is original is really just that.
It is just as important to make sure you get the licence to use the materials in the way you intend to use them. Some of the licence documentation can be very complicated, and may exclude many uses from the consent.
Stock material companies are notorious for sending demand letters to people using their material without the appropriate consents, and so breaching the copyright laws (including substantial charges for licenses they believe you should have purchased, and “damages”). These situations are unpleasant, costly and can be avoided with a little bit of extra work in the beginning. Again, professional assistance at this stage can go a long way.
It is essential for at least some of the members of your organisation to have the relevant training to be able to identify these sorts of issues when they arise – if for nothing else, than to encourage further investigation into potentially problematic areas to reduce your overall risk exposure.

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