Copyright Protection

In order to ensure that brand advertising can be protected the brand owner should own the copyright in the advertising material that is prepared at its request. Where the author of the work was in the employment of the brand owner under a contract of service or apprenticeship and the work was made in the course of employment by that person, the brand owner will be the copyright owner in the absence of the agreement to the contrary. In addition, since the author of the work will be entitled to moral rights a waiver of moral rights should be obtained by the brand owner.

Individuals who are the authors of advertising copy but who are not employed by the brand owner will be the author and first owner of the copyright unless they were acting in the course of their employment with an advertising agency or the like, in which case the agency will own the copyright. In light of this a written assignment of copyright in the relevant work should be obtained from any advertising agencies, photographers or other individuals involved in the preparation of advertising materials. In addition, waivers of moral rights should be obtained from the individual authors.

Frequently agreements with advertising agencies provide that the agency will assign copyright to the client, provided that the client has complied with its obligations under the agreement concerning the material, typically payment. If there are third party licensing agreements relating to photography, music or talent used in the advertising material, the agency may not be in a position to provide assignments but should represent that it has obtained appropriate usage rights.

Finally, an agency agreement should contain representations to the effect that the agency has obtained waivers of moral rights from all individual authors.

The World Trademark Review

In January, 2015 I was recognized by The World Trademark Review, a third party trademark professional rating organization as among the world's leading trademark professionals for both enforcement & litigation and prosecution & strategy.