Common copyright traps marketers keep falling into
Creating, sharing, and adapting content is part of everyday marketing. However, copyright ownership and permission are not always as straightforward as they seem, particularly when content is sourced online, commissioned from an agency or freelancer, or created using AI.
Copyright protects the expression of ideas, rather than the ideas themselves. The owner of a copyright work has the sole right to use, copy, or amend the work, or to authorise someone else to do so. Copying someone else’s copyright work to create new content will probably infringe their rights.
Here are some of the common copyright traps marketers should look out for.
1. “It’s online, so I can use it”
Just because something has been posted online does not mean there is permission to use it.
Copyright can even exist in memes, and New Zealand does not have a fair dealing defence that covers the use of memes yet. Before using content found online, marketers should check who owns it and whether permission is required.
2. “I created it, so I own it”
Copyright ownership can be complicated.
At a basic level, the person who created the work will usually own the copyright. However, if an employee creates something in the course of their employment, the employer will usually own it.
Different default rules can also apply to some commissioned works. If someone is commissioned for a fee to create photographs, drawings, sound recordings, or films, the person commissioning the work will probably own the copyright by default.
However, contracts will override these default positions. If an agreement with an agency or freelancer sets out different ownership arrangements, those contractual terms will apply.
Ownership becomes more complicated when an agency uses an AI platform or third party to help create content. It is useful to have a clear agreement that guarantees ownership of, or the right to use, the content without infringing third-party rights.
Businesses also do not necessarily need to own copyright to use a work. A licence from the true owner may provide the rights needed.
3. “I have permission to use it for that, so I can also use it for this”
Permission to use content in one way does not necessarily provide the right to use it in another.
For example, a business might have a licence to use a song in a radio advertisement but not in a televised version of the advertisement.
Licensing terms should be read carefully to ensure they cover all the ways the content will be used.
4. “ChatGPT said I can use it, so it’s OK”
ChatGPT can offer useful guidance as a starting point, but it does not always get the law right.
There have been cases where it has hallucinated law, and lawyers have faced consequences for citing cases that it made up. AI-generated legal information should therefore be checked rather than relied on without further review.
5. “There’s no © symbol, so it isn’t protected”
The absence of a © symbol does not mean copyright does not exist.
However, including the symbol on original work can still be useful. It may deter someone from using the work without permission and make it easier for the copyright owner to enforce their rights.
6. “I only copied 10%, so it can’t be infringement”
There is no automatic rule that copying only 10% of a work avoids copyright infringement.
In New Zealand, the assessment looks at quality, not just quantity. This involves examining the substance or essence of the original work, discounting aspects that are not original, and considering how much of the original work has been copied. It also considers whether there is a causal connection between the original and copied works.
For advice about copyright ownership, licensing, AI-generated content, or potential infringement, contact our Intellectual Property team.
Special thanks to Partner Katy Rostovitch for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
