Some individual tips and rules on Copyright and Personality Rightsby Luk Catrysse - July 22, 2015
It’s not the first time issues regarding intellectual property rights are featured on the news. The most recent case to catch my eye involved a famous comic character, viz. an adventurous reporter with a white fox terrier and an older friend who likes to swear and drink himself stupid around the clock*.
Since advertising agencies have the bad habit of taking these matters lightly, the ACC – our trade association – thought it would be a good idea to organise a workshop on copyright and personality rights.
Let me give you the exhaustive summary, free of charge: if you want to use anything for commercial purposes, you have to pay up.
An oversimplification, you say? Of course. The subject matter is slightly more complex but I doubt the prospect of dry legal texts makes you drool so I thought I’d compile some individual tips and rules.
Individual Tips and Copyright Rules
1) Eye-opener: you really can’t protect an idea as such. Like it says in the definition of copyright:
(…) Any body of work that is original and tangible is protected by copyright laws.
2) The duration of copyright is typically the author’s life plus 70 years. Only then does the protected work become part of the public domain. (Tip: Glenn Miller died 71 years ago; you’d only have to deal with the small matter of performance rights).
3) If you say ‘rights’, you say ‘loopholes’.
"The author is quoted. We even cited the source. So why do we have to pay?"
The right to quote involves a great many conditions, the most relevant of which stipulates that the quote most serve a purpose. Commercial purposes excluded, unfortunately.
"It’s a parody. We’re not really using the person in question. So why do we have to pay?"
Nice try but again: this does not apply to commercial purposes. So if there were a famous commercial about Donald Johnson who’s devoted ‘the last thirty years of his life to making quality kitchens’, then you can’t put out a commercial of your own saying you’re Ronald Johnston and you’ve devoted the last thirty years to making quality soap.
4) Can you link (hyperlink/embedded link) to protected content owned by third parties?
Yes, you can. You don’t need permission from the rights holders but you do need to make sure the content is not hidden behind a paywall. Linking to YouTube films is allowed.
5) And what about content on social media? Posts, tweets and pictures remain the sole property of the user at all times. Sounds great. Keep in mind, though, that upon registration the user transfers those rights to Facebook, Twitter, Instagram,…
Third parties (e.g. a newspaper) can’t simply reproduce your tweet or picture. Unless Twitter or Instagram give their consent, of course.
6) One last tip: got an idea? Then apply for an i-DEPOT today with the Benelux Office for Intellectual Property (BBIE). While it doesn’t provide actual protection, it may serve as an argument in your favour if there’s ever a court case. It proves you were the first to come up with the idea.
Individual Tips and Rules on Personality Rights
1) Personality rights belong to the person who is depicted, up to 20 years following his or her death. That’s why I can shamelessly render an image of Marilyn Monroe here (1926-1962) from Gentlemen Prefer Blondes, a film which itself belongs to the public domain.
2) Remember to obtain written permission from every person depicted in your advertising campaign.
3) Personality rights only apply when the depicted person is recognisable. Crowd scenes from a football stadium? Go-go-go!
4) Obviously you can’t simply link Tom Boonen to your brand following his 5th Paris-Roubaix win in 2016. That won’t stop some sneaky rascals though. As for the fine they may have to pay after a lawsuit, they’ll pay that with a smile (remember: you didn’t hear that from me).
And then there’s this…
Sometimes David does slay Goliath. The heirs of the cartoonist (you remember the adventurous reporter with the white fox terrier and the foul-mouthed sozzled friend) eventually lost out.
*I’d rather not risk having to pay millions in damages.
 This work is in the public domain because it was published in the United States between 1923 and 1977 and without a copyright notice.