Can a car manufacturer show a competitive model in a comparative advertising campaign?
It is now possible to include a wide range of three-dimensional objects in advertising which until last week were protected by copyright. This applies to cars and other objects which are not copyright protected in themselves but are based on copyright protected design drawings.
Cars designed before the current Copyright Act came into force (1 August 1989) could not until now be shown in ads without risking a copyright infringement claim. Cars are not copyright works in themselves, but reproducing a photograph of a car could still infringe copyright in the design drawings, which are copyright artistic works.
Section 51 of the Copyright Act did away with this by providing that it was not an infringement of the copyright in a design drawing (for anything other than an artistic work or typeface) to make an article to the design or to copy an article made to the design. But Section 51 only came into effect on 1 August 1999 in relation to designs recorded before 1 August 1989.
There are still a number of pitfalls. It may be necessary to obtain permission for the use of surface decoration, logos or trade marks shown on objects included in advertisements. Shapes of objects are sometimes registered as trade marks. Advertisers and their agencies should still seek advice on these issues, but the advice is now more likely to be positive.