The big picture: making sense of copyright mistakes
“Who owns the rights” may seem like an obvious question for advertising agencies to ask, however the answer isn’t always as obvious as it may seem, and could lead to a claim against you that you had not anticipated.
Take for example, a media agency that wants to give away CDs or DVDs in a newspaper promotion. The media agency would be responsible for negotiating the rights, and they in turn will go to the publisher. But how can you be certain you have liaised with everyone concerned? With a book, for example, it’s relatively straightforward – there’s the author, the artist who did the cover.... and that could be it. But with a DVD, for example, it can be a minefield – the author of the original book, a scriptwriter, producers, all the actors, and musicians, whoever wrote the score.... You might think you have checked absolutely everything only for something to come back and bite you.
Yes, you may think you have the right to use the DVD for your promotional purposes, but you forgot to mention that it was also going to be available in Outer Mongolia – and in comes the claim.
You have to not only think about the format you are using, but in which country and for what product or purpose, over what timescale. We defended a case with a media agency for an alcohol brand in which the agency had used a picture that was very old indeed. The advertising agency rightly went to the picture agency and bought worldwide rights. The campaign was created, and the ads started to be displayed.
However it subsequently transpired that the picture agency didn’t have the rights they had sold at all. When the ads started to appear, the actor submitted a claim for a substantial sum to cover usage of the picture. Even though the advertising agency had (in theory) done nothing wrong – the error was made by the picture agency – the fact remained that the advertising agency had used the image without permission to do so, and they needed substantial support from Hiscox to defend themselves.
Another example of this from the media recently concerned the back of Rod Stewart’s head. In 1989, an image of the back of his head was used on his album Storyteller – it is recognisably his head, due to his distinctive hair-style. In 2010, the photographer was contacted by Stewart’s agent with an offer of $1,500 to use the image in support of a tour with the strapline: “Rod’s Back”. The photographer rejected this.
A similar, or identical, image was subsequently used at one of his Las Vegas’ shows in Caesar’s Palace and on related products – so the photographer is suing for $2.5m. Typically in these situations, a claim will be made against everyone concerned – in this instance, I would expect the agent, the tour promoter and even the producer of merchandise might all become involved. Even though you may have been given the image and told to “go ahead” using it in the agreed fashion, that doesn’t mean you can’t find yourself the subject of an expensive and highly damaging claim.
Image rights can be a world of pain. Even with close attention to detail, you could find you have missed a crucial point or have been left exposed by a partner company with whom you are working. At times like that, a professional indemnity policy with a wording that really covers your risks could be an investment you might be very glad you made.
For more insight and comments from media and marketing professionals visit: http://www.hiscox.co.uk/business-blog/
Sam Newman, head of emerging professional indemnity and charities, Hiscox
Web: www.hiscox.co.uk/drum
Twitter: @hiscoxuk