Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The law on copyright can be found in the Copyright, Designs and Patents Act 1988. Copyright protects literary, dramatic, musical and artistic works that are created by a person’s original creative skill or effort. Marketers could be liable if they reproduce a whole or substantial part of a protected copyright work without permission. Substantiality depends on the quality of the part taken, not the quantity.
As a general rule, copyright is unlikely to be in a name, title, slogan or short phrase. Those could be eligible for registration as a trade mark or protectable under the common-law right to prevent ‘passing-off’, considered further below. Logos can be protected under copyright as artistic works and therefore many trade marks qualify as copyright works.
Generally, ideas cannot be protected by copyright but the expression of an idea can. The borderline between a mere idea (for example, a book about cookery) and the expression of an idea (a specific cookery book) is difficult to define and can be assessed only on a case-by-case basis.
Some ideas that have been substantially developed might attract copyright protection. It is dangerous to mimic or parody a copyright work because such activities can easily borrow enough of the original work to amount to copyright infringement.
CAP is not an expert on the law, if they are concerned about the legality of a proposed advertisement, marketers should take legal advice.
Last modified : 29 March 2012