Discussion:
Greetings. I am in Wyoming.
Would there be any copyright infringement in using advertisment copy (wording, company and product names - e.g. Sony, Gatorade, etc) on a demo CD used to pitch our voiceover and music production services to ad agencies and companies' marketing departments?
We would only use the ad copy, but the production, voiceover reading and music are completely original. We would also put a disclaimer/explanation on the CD, packaging, and cover letter to be sure there is no confusion or deception; and stating that this is a demo only, not for sale or reuse. Our reason for using existing, known ads, is so that the reviewing agency or company can hear how we would approach their product ad or an ad they would be familiar with.
Is this an infringement of copyright, or at least a risky approach?
Many thanks, and seasons greetings!
Answer:
Is this an infringement of copyright, or at least a risky approach? Yes and yes. The use of the other's printed materials would almost certainly be infringing their copyrights. Further, you may also have trademark infringment issues as well, depending on how exactly you use the material.
If you don't have permission to use the materials, you are much better off creating your own materials, at least from an infringement standpoint.
Answer:
Thank you for the reply. That's what I was afraid of, but better safe than sorry - not a big deal to write our own.
That brings up a followup question if you don't mind: Would the same risk of trademark infringement apply to simply writing our own mock ad for an existing product and company, to pitch to that company or ad agency? To pitch to various companies as part of a general demo CD?
This is common with jingle and ad campaign pitches to a specific company (present the idea, see if it gets accepted), but is the copyright interpretation differ if we were to include mock ads where only company names and products are real?
I just want to be sure I am informed on where the lines of infringment interpretation should, or could be drawn (as much as you can provide advise of course).
Many thanks again.
Answer:
Would the same risk of trademark infringement apply to simply writing our own mock ad for an existing product and company, to pitch to that company or ad agency? This would probably not amount to trademark infringement. Basically, the general test for trademark infringement in "confusion" -- in your case, whether a viewer of the mock ad would be "confused" into believing that the owner of the trademarks being used in your mock ad have endorsed or are otherwise affiliated with your agency. Here, because you are pitching TO the company, there is really no danger of "confusion." For example, if you are pitching to, say, 7-Up, and you use the 7-Up logo in your mock ad, there is no danger of confusion because 7-Up themselves know that they are not affiliated with you (or, at least, know the limits of their relationship with you) so there is no real possibility of confusion.
However, if you are pitching the same mock ad (with the 7-Up logo) to, say Pepsi, then there more likely WOULD be confusion, because how are the Pepsi people supposed to know the limits of your relationship with 7-Up?
Now, that said, there may be some specific caselaw out there that carves out an exception to liability for infringement for this type of use (use in mock ads, etc.) -- I'm not aware of any, but I am not expert enough in this narrow part of trademark so say for sure there isn't. It might be worth your time to talk with a local attorney experienced in trademarks who can tell you exactly what you can and can't do.
Answer:
Thank you. You have been very helpful.