Avoiding Problems with Copyright Regulation in Advertising

Kaiden Patch

JMC 4333: Contemporary Problems in Advertising

The University of Oklahoma

Dr. Yoon

April 25, 2021

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Avoiding Problems with Copyright Regulation in Advertising

Managing copyright regulations in advertising is both complex and constantly shifting

which creates a significant challenge for advertising practitioners. As will be discussed, there are

considerable reasons behind why copyright regulations are hard to follow in the advertising

industry. The first copyright law was written in 1790. Since then, several new laws and

regulations have been passed, most recently, the Copyright Act of 1976. The Copyright Act of

1976 forms a basis of copyright laws that are still followed today. This law allows for copyright

protection on many new forms of media and introduces ‘fair use’ in the copyright law. The fair

use doctrine is an area that is often challenging for the advertising industry, given that the

industry is highly competitive and constantly striving to generate creative content. Since 1976,

many lawsuits and challenges have created a current environment that is difficult for advertising

practitioners to navigate. This paper will present why it is a significant challenge for advertising

practitioners to avoid problems with copyright regulations. Many of the copyright rules are

subjective, which often open them up to opinion and interpretation. Furthermore, the U.S.

business environment is highly competitive and advertising practitioners have to balance varying

client needs, risk tolerances, and limited resources. Additionally, a great advertising idea is hard

to achieve. Great advertising ideas are valuable both to the creator and to the party who alters the

original work while complying with the copyright regulations. These dynamics create many

challenges in the advertising industry.

Permission

A common debate within advertising is how to comply with copyright laws. Critics argue

preventing copyright infringement is easy and can be avoided by simply requesting permission

for reproduction of a work. Although this point is valid,“In many cases the agency just doesn’t
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understand what can be done legally” (Fueroghne, 2007). “Some know the rules and still ignore

them” (2007). In most scenarios if you ask for permission the answer will likely be no, especially

when dealing with a competitor. Therefore, asking for permission can limit an advertising

practitioner’s ability to explore all options for their customer. To illustrate this point, in Triangle

Publications v. Knight-Ridder, the Miami Herald used the successful TV Guide magazine idea to

create their own larger version of a similar guide (2007). The Miami Herald then advertised it

indirectly referencing the popular TV Guide Magazine (2007). The main issue in the lawsuit was

whether Miami Herald’s ads were considered infringement or allowed under the fair use doctrine

(2007). Ultimately Triangle Publications was unsuccessful and under the rules of the fair use

doctrine Knight-Ridder won the suit (2007). Had the Miami Herald asked for permission, TV

Guide clearly would not have granted it. This supports the argument that asking for permission

limits an advertisers ability to create content.

Even if an advertising agency requests permission there can still be challenges because of

the many rules to be aware of. For example, an article from the Advertising Age speaks about

permission and the challenging rules to keep up with (Klassen, 2009). Toyota accidentally used a

copyrighted photograph in its ad (2009). Once discovered, Toyota made a commitment to pay the

photographer for their picture (2009). Using this example, Klassen raises some additional points

that still need to be considered. Klassen goes on to ask a series of questions about linking back to

the original source, if a piece of content is covered by Creative Commons license and the need to

consider a twitter feed or search (2009). This article demonstrates that even when asking for

permission the rules are difficult to navigate.

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Laws are Subjective

One may argue that copyright laws clearly define what the rules are, making them easy to

follow. This is true in some cases, however, it would be an understatement to say that advertising

regulation is complex. The rules, laws, and interpretations behind copyright regulations are

subjective, which poses obstacles. The parody rules in particular are difficult to navigate. In

order for a parody to be considered legal it must contain original elements and follow the rules of

the fair use doctrine (Johnson & Spilger, 2000). The fair use doctrine requires four factors to be

met; 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount

or sustainability of the portion used and 4) the effect of the use on the potential market for or

value of the work (2000). These four factors are subjective and open to interpretation. To

highlight this point, there are two lawsuit examples where original copyrighted material was used

with an attempt to create a legal parody. Paramount Pictures produced a movie called the Naked

Gun (Fueroghne, 2007). To advertise this movie Paramount used an image of Leslie Nielsen's

face which they then added to the body of a nude pregnant woman (2007). The photograph was

meant to reassemble a popular photograph, taken by Annie Leibobitz, of the actress Demi Moore

(2007). This photograph ran on the cover of Vanity Fair magazine and was highly recognizable at

the time. To comply with copyright rules, Paramount Pictures did not copy the photograph but

produced their own which was very similar to Leibobitiz photo. Leibobitz sued Paramount

Pictures for the similarities of the photograph, Leibovitz v. Paramount Pictures Corp was the

case that resulted (2007). The court ultimately ruled in Paramount Pictures' favor, confirming

they had followed the parody rules under the first and fourth factors of the fair use act (2007). In

a similar lawsuit, Columbia Pictures Industries, Inc v. Miramax Films Corp, a very different

outcome resulted (2007). To advertise Michael Moore’s new movie, The Big One, Miramax used
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an advertising poster that made similar changes to what had been done with Demi Moore’s photo

(2007). Miaramax, similar to what Paramount did, took a popular poster from the movie Men In

Black and changed it with an attempt to turn it into a parody (2007). Reviewing the details of

both cases, very similar arguments were made and produced different legal outcomes. The court

found that The Big One Poster had infringed on the MIB poster (2007). Given the similarities of

both cases and the opposite outcomes, this supports the argument that the rules and laws are

subjective making it difficult for advertising practitioners to manage.

Limited Resources

Certainly it is challenging for all companies to follow the many rules of copyright, but

even more so for smaller companies with limited resources. Small company budgets are often

tight and can put advertisers in a precarious position. For example, Heywood Brown uses a real

life example of a situation he was involved in where the client didn’t want to commit appropriate

funds (2007). This pressured the advertising agency to break the rules (2007). In this scenario,

the agency president ordered fourteen pictures and to save money he sent all but one back

thinking no one would notice (2007). However, the agency president used all fourteen in the

advertisement for his client (2007). The creative director under protest told his boss this was a

bad idea but was forced to do it anyway because of the client’s limited resources (2007).

Ultimately everyone involved was sued for copyright infringement (2007). While this act clearly

broke the law, the advertising agency felt like it was worth the risk. Many times companies get

away with this approach. This is a good example of the added pressures advertising agencies face

while balancing limited client resources and delivering on customer’s expectations.

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Competitive Environment

The nature of highly competitive business environments in the U.S. is another reason

why complying with copyright laws is challenging for advertisers. The number of advertising

mediums and flow of constant content make it challenging for an advertiser to both be creative

and to appeal to their audiences. When an advertising campaign idea reaches a high level of

success, two things are apparent. First, there is room in the advertising rules to mimic some

copyrighted material. If someone can piggyback on the success and recognition of the original

work it is highly likely to also be successful. Second, successful copyrighted advertising is

extremely valuable and highly likely to be furiously protected by the owner. Thus, creating a

challenging and litigious environment that advertisers have to navigate. For example, the cases

Dr. Pepper Co. v. Sambo’s Restaurants (Johnson & Spilger), Sid & Marty Krofft v. McDonald’s

(Fueroghne), and Beastie Boys vs. GoldieBlox (Barshad) involved well-known companies who

attempted to take a successful advertising idea and make it their own, resulting in a lawsuit.

These cases illustrate established companies attempting to use and expand on already highly

successful advertising. In all three cases, the lawsuits resulted in a loss for the company making

the attempt. These cases reveal the competitive U.S. business environment puts pressure on

advertisers to stretch the bounds of the law.

This paper sought to demonstrate the various challenges advertising professionals face

when dealing with the complexity of copyright law. With the laws being subjective, resource

limitations, the competitive business environment and the value of successful copyrighted work,

I found that avoiding copyright laws is a significant challenge in the advertising industry. It is the

job of the advertiser to stretch limits and doing so may test the rules, but in order to create

successful content you must take risks. All of the cases and examples I mentioned show that
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copyright laws aren’t straightforward in the advertising industry and there is room to test the

waters. Additionally, the amount of ideas and inspirations society offers us makes it hard for the

creative side of advertising to prevent copyright infringement. One may gather an idea and turn it

into their own but at what point does this cross copyright boundaries. Overall, we can see there

are many complexities when trying to create original work. Avoiding copyright challenges isn’t

as cut and dry as what some critics would argue.

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References List

Barshad, A. (2013, November 25). Know Your Beef: Beastie Boys vs. GoldieBlox, the

Company That Used a ‘Girls’ Parody in a Viral Commercial. Hollywood Prospectus.

Johnson, M., & Spilger, U. (2000). Legal Considerations When Using Parodies in Advertising

Journal of Advertising, XXIX(4), 78-86.

Klaassen, A. (2009, November 9). User-Created Ads Create Rights Conundrum. Advertising

Age.

Fueroghne, D. (2007). Law & advertising: Current legal issues for agencies, advertisers, and

attorneys. Copyright Regulation. (p. 170- 197).