Copyright

To be the subject of copyright, literary works have to have a degree of originality. Generally, advertising slogans are too trivial to satisfy the minimum requirements of originality and hence are not the subject of copyright. However, if a slogan is unique and non-descriptive it may be a registered trademark. If you intend using such a slogan it is advisable to establish its trademark status.

Even if trademarks are not an issue, the use of other advertiser’s advertising slogans needs particular care – their use could be seen as unfair, dishonest and denigratory to the relevant advertiser, or “passing off” and therefore misleading to consumers.

Using clips from programmes/films and spoofs of programmes
Agencies and production houses must ensure that they have obtained copyright clearance before including clips from programmes/films owned by other broadcasters.

Spoofs of programmes/films/other advertisements
Care is needed when doing spoofs of TV programmes/films/advertisements – there is a risk of copyright infringement. The rights owners would have a copyright infringement claim if they could show that the commercial reproduced ‘any substantial part’ of the scripts from the programme/film. The rights owners would have an arguable passing off claim if they could show that consumers would be likely to assume that the commercial has been authorised or endorsed by celebrities.

To help ensure that the commercial is nothing more than a spoof, make sure that any music is clearly a spoof version, that the voiceovers are not realistic soundalikes of recognisable celebrities/actors and that any words and phrases are pronounced in such a way that they are clearly spoofs from the programme/film.

Using well-known characters and their catchphrases
If well-known characters from programmes/films and their catchphrases are employed in advertisements, agencies and production houses/departments must clear their use with the original creator/writer by seeking written permission.

This area can be a minefield. Agencies, production houses and broadcasters are advised to take legal advice in any area of doubt.