Copyright laws in Australia protect a range of ‘works’ such as literary, dramatic, artistic and musical works. However, a problem arises when you pay an advertising agency to create an advertisement for your business. Whilst most would assume if they have paid for an advertisement to be created, they own the copyright in that work, this is not the case.
The Copyright Act 1968 (Cth) provides copyright protection for creations (or ‘works’) which fall into the categories of literary, dramatic, artistic and musical works, as well as other works such as films, music videos, and broadcasts. It does not, however, provide any protection for advertisements paid for by a third party which are created by an agency. Advertisements do not fit neatly into one of the recognised categories under the copyright law as it straddles the line between an artistic work, a dramatic work, a film, or a broadcast.
This begs the question: how do we treat them? One would think that the simplest answer would be to treat an advertisement created by an agency in the same way as a ‘commissioned artwork’. The general rule in identifying who owns the copyright in a creation is that the author of the work is the owner, however an exception to this is commissioned artworks created for a private or domestic use. If that exception does not apply, then the copyright in those commissioned works rests with the artist.
Despite the expanding range of creative works which the copyright laws encapsulate, this is one area which remains unclear leaving us with one option – to take guidance from the international treaties and agreements from which Australia takes its leave. The World Intellectual Property Organisation (‘WIPO’) provides useful guidance on this specific issue, stating that an agency paid to create an advertisement should be treated as an independent contractor. As such, even if a third party has paid for an advertisement to be created, the agency itself will own all the copyright in the works they create as well as the elements behind that advertisement such as any colours, jpegs, logos, text material, sound, music, photographs, or compilations.
How can you ensure that the copyright in advertisements you pay for is owned by you? Before paying any agency to create an advertisement, enter into a written agreement with them which sets out who will own the copyright in the advertisement and the elements which form part of it. A carefully drafted contract between yourself and an advertising agency will ensure that the intellectual property rights transfer to you so that you can continue to use that advertisement in the future.
If you require assistance with an intellectual property issue, we have a team that can help.