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Intellectual property rights are the legal rights to use and profit from your works as the creator or owner. If you are in advertising, you may use other people’s works as part of your ad content, such as a jingle or slogan. They will own intellectual property rights over that work, which you will need to deal with accordingly. Depending on the circumstances, if you want to use someone else’s work for your ad, you will need to seek their permission first. If you do not, you may end up infringing on someone else’s rights and getting caught up in legal action. Therefore, for some guidance, this article will discuss four mistakes people make when using someone else’s work in an ad. 

1. Not Being Aware of Intellectual Property Rights in New Zealand

You need to understand what kind of intellectual property you wish to use and what legal rights the original owner has. The table below outlines some important intellectual property rights in New Zealand.

Copyright

Copyright protects original works, such as literary or dramatic works. Copyright is not registrable, but it still has similar rights and protections as other intellectual property.

Trade Marks

Trade mark protection can cover the identifying parts of a business’ brand, such as a logo or slogan.

Designs

Registered designs protect the visual appearance of a product. However, it does not protect the functionality of the product. 

Māori Intellectual Property

This is a way to protect Māori culture and knowledge. The Māori Advisory Committee will assess all types of intellectual property that have an aspect of Māori culture or knowledge at IPONZ.

Using intellectual property without a working knowledge of its functions puts you at a disadvantage, particularly if you want to use intellectual property that you do not own yourself.

2. Failing to Get the Intellectual Property Owner’s Permission

New Zealand has various intellectual property rights that people use to protect their work. If you want to use someone else’s work in an advert, you should: 

  • take time to understand these rights; and 
  • have the owner’s permission to use their intellectual property.

Otherwise, you would be infringing on their intellectual property rights and could face legal repercussions. An intellectual property owner has various rights and protections attached to their works, which include:

  • exclusive use of the intellectual property;
  • the right to decide if anyone else can use the intellectual property; and 
  • legal protection.

For example, suppose there is a particular musical piece you wish to use as the background music of your advertisement. In that case, you will need the owner’s permission for any intellectual property rights attached to that piece. If you do not have it, they can pursue you for infringement.

3. Failing to Recognise Applicable Moral Rights

You should also consider moral rights. The creator or author of copyrighted material will receive moral rights as well as legal rights. They stick with the creators for as long as the material is copyright protected. These rights apply no matter who the copyright owner ends up being or how widely the material is shared. The table below outlines four moral rights in New Zealand.

The right to be identified

This is the right of the copyright creator always to be credited when someone uses their work.

The right against false attribution

This is the right not to be credited to work that you did not create.

The right to object to derogatory treatment

This is the right not to have copyrighted work harmed or altered in a way that would negatively affect the creator’s reputation.

The right to privacy in certain photos or films

This refers to photos or videos that are for domestic use only. You must receive to use them in public.

Creators with moral rights have legal options available to them if someone infringes on these rights. So, when you are thinking about using someone else’s work in an advert, you should be sure to check if there are moral rights attached to that work.

4. Not Complying With Licence Terms

If you do get permission from an intellectual property owner to use their work in your ad, you will likely have to get a licence to use their work. A licence is a contract between an intellectual property owner and another person who uses their work. Accordingly, licence agreements can be flexible to suit your needs. For example, if you want to use someone else’s work for your advertisement, you could enter into a licence agreement that details factors such as how long you can use the work and where. 

When you use another person’s intellectual property in this way, you need to comply with the terms they set. If you do not, you will be breaching your licence agreement, which will likely allow the other party to commence legal action. Therefore, whenever you are dealing with a licence agreement, it is important that you receive legal advice before signing it to understand your rights and obligations fully.

Key Takeaways

When using someone else’s work in an ad, you should be careful not to infringe on their intellectual property rights. If you correctly identify the intellectual property you are looking to use, it will make it much easier for you to determine how you need to seek permission. You can seek permission from the intellectual property owner to use their work with a licence agreement. Additionally, be sure to recognise any moral rights that may apply. If you need assistance with your intellectual property, LegalVision’s experienced IP lawyers can help. Call 0800 005 570 or fill out the form on this page. 

Frequently Asked Questions

Can I register my copyright?

Copyright is not a registrable right in New Zealand and applies automatically to works upon creation.

How long do moral rights last?

Moral rights generally last for as long as copyright exists in the work. 

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