A case last week concerning copyright in newspaper headlines has given a boost to the idea that advertising slogans can be protected by copyright.
The judgment in NLA v Meltwater and PRCA dealt amongst other things with whether a newspaper headline could qualify for copyright protection as a literary work. An Australian case (Fairfax) had decided that headlines, however clever, were simply too insubstantial and too short to qualify for copyright protection. Australian courts do not have to follow European copyright law, but UK courts do, and the recent decision of the European Court of Justice in Infopaq has significantly altered the ground rules in this area.
The UK Copyright Act requires a “substantial part” of a work to be copied in order for there to be infringement. The EU Information Society Directive only refers to the protection of works “in whole or in part”. The ECJ made it clear in Infopaq that originality rather than substantiality is the test to be applied or, in the judge’s words, whether an extract copied from a work “contains an element of the work which, as such, expresses the author’s own intellectual creation.” On this basis, the English judge in Meltwater decided that newspaper headlines are capable of being copyright literary works, whether independently or as part of the articles to which they relate.
Advertising slogans can be registered as trade marks if they are sufficiently distinctive. Little thought has been given in the past to copyright for slogans because such protection has generally been regarded by lawyers as no more than a theoretical possibility. But the creation of advertising slogans is surely just as skilful as the creation of newspaper headlines and if an original headline now gets copyright protection then a slogan should do too.
In order to convince a court that an advertising slogan is sufficiently original to merit copyright protection it will be necessary to produce evidence as to the process of creation. When agencies are working on important slogans for which copyright protection is to be claimed, they should wherever possible keep detailed records of the creative process to back up the legal rights it now seems may be available.