Copyright Surrounding Creative Work Done By Agencies
A number of noteworthy copyright principles apply where design agencies devise creative works for its clients. These include the legality of the works created by the agencies as well as rights which they acquire therein.
From the very outset, a design agency must be mindful of the subject-matter which it incorporates as part of its creatives. Third party matter could be the subject of copyright protection in its own right. Where a design agency therefore reproduces or adapts (as the need may be) pre-existing material in its own creative work, it must consider whether permission might be required to do so. Failure by a design agency to obtain permission beforehand may render it liable to copyright infringement. Common examples of copyright protected works in respect of which clearance must be obtained before using it in a creative design could include photographs, paintings and images of works of architecture.
Advertisements generally manifest themselves in different types of media, e.g. print, radio and television. Depending on the specific type of media for which the advertisement is intended, an advertisement could constitute different types of works as protected under the Copyright Act. A television advertisement qualifies as a “cinematograph film” under the Act which itself comprises various other works that might be protected by copyright, e.g. songs (lyrics being a literary work and music being a musical work), a dialogue or script (being a literary work) and depending on the content of the advertisement potentially various works protected as artistic works (e.g. works of architecture being buildings and so forth). Radio advertisements generally comprise some form of dialogue, the script for which will constitute a “literary work”. Finally, print advertisements generally depict some image whether realistic or animated, concrete or abstract which constitute an “artistic work”. The copyright implications will in each instance depend on the specific subject-matter being created.
Once it has been established what it is that has been so created, it is necessary to consider by whom it was created and in which capacity. The author of, for example, a literary or artistic work is as a general rule, the person who first makes or creates the work. In the context of a design agency, it would normally be individuals in the course of their employment under a contract of service with the design agency. The effect is that whereas the specific individual as employee will be the author of the creative work, an exception to the issue of ownership exists in respect of works created by employees. In this scenario, ownership of the copyright which arises will vest in the design agency as employer.
A common misconception which often presents itself, is that if you pay for it you own it. Ownership of copyright generally does not transfer to a person by virtue of it paying for the creation of the work and the scenario of works created by design agencies is no exception to this rule. Therefore, in the absence of any contractual arrangement (which must be in writing, properly identifying the work at issue and signed by or on behalf of the design agency) copyright will not automatically transfer to the client for whom the advertisement was created, despite it having paid for it. Should the client require ownership of copyright, it must take assignment thereof separately and if the parties so agree, can include the arrangement as to ownership of copyright in the contract for services to be rendered, alternatively after the fact.
There is generally no copyright protection in thoughts, ideas or concepts. A design agency should therefore caution against simply divulging these and rather treat it as a form of confidential information. Copyright vests in the actual, physical manifestation or embodiment of an idea or concept (and from there the requirement of a work being in “material form” for the subsistence of copyright). If the creative work is then also original in that it was not copied from any other source, but rather created through the individual effort and skill of the author, the work will be safeguarded against unauthorised reproduction, adaptation (and certain other acts). Copyright protection entitles the owner thereof to object to the misuse of the works created by it (or a substantial part thereof) and, where relevant, should be a basis on which it can claim an infringement of its copyright (where reproduced or adapted without its permission) for remedies such as an interdict, damages (alternatively a reasonable royalty) and delivery up.
This article was first published in the October Issue of the Design Times Magazine.