Most small businesses do some form of advertising or promotion. Commercials like to evoke images of popular culture including contemporary music, upcoming sports events, celebrities, and current events. In doing so, a small business might unknowingly step on the toes of a copyright or trademark owner. Here are some suggestions on how businesses can produce creative advertisements while staying in compliance with copyright and trademark laws.
Don’t Overestimate Fair Use Protection.
Assume that your business will require permission before using anyone else’s music, images, text, or other copyrighted material in your advertisements. It is true that the fair use exception to copyright protection does allow one to use a small portion of someone else’s copyrighted work without running afoul of copyright law. However, fair use determinations are very fact specific and, as a general rule, promotional and advertising uses do not qualify as fair use.
Understand Nominative Use versus Promotional Use.
Recognize the difference between nominative use and promotional use when it comes to well-known names, words, and phrases. If your sweepstakes rules indicate that first prize is Super Bowl tickets, you are using “Super Bowl” in a nominative manner to identify the prize. Such a nominative use is legal. On the other hand, if the headline on your homepage invites all visitors to enter the company’s Super Bowl Sweepstakes, that is a promotional use and you should expect to receive a cease-and-desist letter from the NFL.
Use Stock Images and Music.
Incorporating materials from stock houses into an advertisement can eliminate many of the licensing headaches and legal risks of using someone else’s material.
Don’t Forget Independent Artists.
One potential downside to material from large stock houses is that the material may have been in many other projects and may have been seen many times before. A creative solution I encourage clients to explore is using original music, art, poetry, and other content from independent art¬ists. There are thousands of talented and just-about-to-be-famous writers, filmmakers, visual artists, and musicians who welcome the exposure offered by inclusion in a promotional ad and will license rights for a fair but comparatively modest fee.