Charting the Right Course: Navigating Intellectual Property Rights in Marketing Communications

By Renee Dexter

The world of intellectual property is an enormous one that encompasses virtually all aspects of our everyday lives. The images we see, the copy we read and the logos we so easily recognize are almost all legally protected from unauthorized use. Though we rarely notice how intellectual property impacts our personal and professional lives, it’s important to recognize the need to perform our due diligence so that we avoid infringements which could result in a Cease and Desist order or even worse, a lawsuit.

Copy

In marketing communications, the frequent use of copy, photographs, music and fonts carries a high risk for intellectual property violations, specifically copyright infringement. According to the U.S. Copyright Office (www.copyright.gov), a copyright protects “original works of authorship including literary, dramatic, musical and artistic works, such as poetry, novels, movies, songs, computer software and architecture in fixed form either published or unpublished.” So, in terms of writing copy what does this mean to you? This means that all copy borrowed from another source regardless of whether the text was copied directly or paraphrased, must include a citation. If you aren’t writing the copy, but plan to copy and distribute an entire book, booklet, presentation or large parts thereof for a meeting or training class, you must get verbal or preferably written permission from the author.  Most authors are amenable to having their work reproduced, as it allows their text to be read by a wider audience that they, most likely, would not have reached.

All of this is relatively easy if you know who the copyright holder is. Speaking of which, do you know who owns the copyright to the text in your marketing materials? If an employee writes it, the copyright is automatically transferred to the organization. Copy written by freelancers is typically considered a work-for-hire which also places the ownership of the copyright with the organization for which the copy was written. However, the statutory definition of a work-for-hire is very complex, and several conditions must be met for the work to qualify as a work-for-hire. Always execute a written contract with your freelance writers and be very clear about who owns the copyright. 

Photographs

Now that our copy is compliant, let’s move on to photographs. Photographs serve to tell stories and/or complement marketing copy, and they, of course, are also protected by copyrights. When using photographs in marketing materials, take note of where the photograph originated.  When purchasing stock photography, copyright issues are negotiated for you by the stock photography company as photos are sold as royalty free or rights managed (see Rene Ramos’ article, Got Stock? in the August 2010 Hop To It). However, if you receive a photograph from anyone including an employee, internal or external client, relative, neighbor, etc. you must get verbal or preferably written permission from the copyright holder in order to use that photograph. The owner is usually the photographer or photo agency unless the rights have been formally transferred. Be prepared to pay, as many photographers will charge for use of their photos and prices vary. Also know that photographs taken from the Internet are not available for public use and are protected by copyright law unless stated otherwise.

Music

Reports of copyright infringements in the recording industry aren’t new and seem to be a constant fixture in the mainstream and alternative media. If you plan to add music to, say, your website you have two options—copyright-protected and royalty-free music. The use of copyright-protected music requires that you contact the record label who will advise you on licensing issues. You can also contact a company like BMI (www.bmi.com) that collects fees on behalf of songwriters, composers and music publishers. They will advise you on the licenses you need and the fees attached to those licenses.  Like stock photography, music is also available from sites that offer royalty-free downloads. Sites like www.royaltyfreemusic.com charge per song or on a subscription basis. 

Fonts

One area that hasn’t received a lot of attention in the copyright arena is font usage. Most of us tend to think more about the look of the font rather than the legal implications of improper use.  Each font vendor has specific rules regarding what you can do with their fonts, so be sure to read the End User License Agreement (EULA).  The EULA will specify how many computers that the font can be downloaded on and if the font can be downloaded on a server or sent to a third party such as a printer.

Obeying intellectual property laws isn’t difficult once you know what to look for. To ensure that you are always compliant, develop a checklist with all of your components and then have someone review the list before the job is completed and before it’s too late to turn back. For more information on intellectual property guidelines and registrations, go to www.uspto.gov.

Renee Dexter, Account Director and author of this article, has over 20 years of marketing experience that includes managing integrated campaigns. She also has hands-on experience in print production, graphic design, direct mail, co-op advertising, writing, and editing. 

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