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Partner Article: Enter The Dragon – Agencies With Audit Trails Won’t Feel The Burn

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The Importance of Copyright for Agencies

Why this matters:

  • Copyright is one of an Agency’s most important IP rights
  • Defending infringement claims relating to your work is costly, not least when it comes to client relationships
  • Once word of an infringement disputes make its way online, restoring your reputation can be difficult
  • An audit and clearance trail in relation to whatever content you produce can save you time and both save and earn you money

The Nature of Copyright and Protecting Original Content

Much as the creation of content comes from inspiration, Clients value originality for several different reasons, the most obvious of which being that making use of your work won’t lead to their getting threatened with or having to deal with Court Proceedings as a result of an infringement claim.

If you’re working on a branding proposition, straplines or anything similar then you can at least check at the Intellectual Property Office Website to see if anyone has applied for a Registered Trade Mark which would stop you or your Client from using it in the course of trade, but copyright over literary, artistic and other “works” of creativity comes into being when an original concept (not always the highest of hurdles to clear) is recorded in a permanent form.

This makes it an “unregistered” IP right which makes it difficult to carry a clearance search out against but equally doesn’t require investment in a registration to be able to enforce  – provided that the creator of a work can demonstrate when it was created and that they were responsible for doing so, then any business or other party making use of a “substantial part” of it (i.e. its most essential and valuable elements) can potentially be sued for infringement and be ordered by the Court to pay either an award in damages equal to the licence fee due had it been properly paid (which can include an award for “flagrancy” if its use creates an extraordinary benefit to a business) or a percentage of the profits generated through its (mis)use.

The Quirks of Copyright Law and Independent Creation

One of the main quirks of copyright law which can lead to infringement disputes is that it’s entirely possible for two creators to come up with a similar work based on a similar idea provided that they do so independently and without having had access to the other’s work – this lack of access led to Ed Sheeran’s recent victory in a claim alleging that his song “Thinking Out Loud” infringed upon the copyright in Marvin Gaye’s “Let’s Get It On”.

The Risks and Responsibilities Agencies Face in Infringement Cases

Still with us? Good. The reason this matters to Agencies in particular over and above the fact that no-one wants to be sued for their own infringement is that the majority of Client contracts will ask you “warrant” (i.e. include an assurance or promise which can give rise to a claim for damages if later found to have been breached) that any work you create will be your own original work and a corresponding “indemnity”  – a protection against, or compensation for any liability incurred if the warranty is later breached.

Essentially, Clients will expect you to pick up the tab incurred in dealing with potentially even the threat of an infringement, potentially including their legal and professional fees as well as other significant losses. Even without a contractual indemnity, Agencies can still be drawn into infringement proceedings by Clients forced to deal with them and their senior teams potentially being named individually as part of a “common design” behind it.

Case Study: A Close Call for a Christmas Ad Campaign

Still with us? Excellent. Having established that copyright and other IP infringement could cause a dispute between an Agency, potentially its Leadership Team and the original creator whose work you’re accused of copying as well as between an Agency and a Client who’s made use of the allegedly infringing work, it’s time to consider a recent example (and explain my choice of title).

Christmas is, for some, only kicked off by the premiere of that year’s John Lewis Advert. In 2019, adam&eveDBB created its own version featuring what the Court described as “an excitable young dragon who can’t help releasing fire”, living in medieval times and inadvertently setting fire to a Christmas Tree. So far, Game Of Thrones and so popular that “Excitable Edgar” was immortalized as a book and soft toy (still) sold in John Lewis Stored across the country.

In November 2021, Children’s Author Fay Evans, writer of the self-published 2017 book “Fred The Fire-Sneezing Dragon”, brought proceedings against both John Lewis and adam&eve for copyright infringement based upon a number of perceived “striking similarities” with the book which could only be accounted for by copying.

The Defendants claimed that the Advert was based on one of several concepts first drawn up by a member of adam&eve’s staff sometime in 2016 before being pitched repeatedly to John Lewis over several years, providing to the Court a four-page document setting it out whose metadata confirmed its creation on 24 February that year, and that any similarities between the relevant works were as a result of being based on the same underlying concept. They also provided evidence of having carried out a search for “dragon-themed books” before the Advert’s launch to determine whether any could have had similarities to it, finding several which involved Dragons and the good – and bad use of their fire.

After a trial in January this year, judgment was handed down in April in which the Court found that John Lewis and adam&eve had not infringed upon Ms. Evans’ copyright on the basis that none of the team working on it had seen her book until after the Advert was first shown and allegations of infringement first appeared on social media. As the judgment summarises:

“There can be no copyright infringement without copying, and there can be no copying if the work alleged to have been copied has not been accessed (i.e., seen, in this case) by those said to have copied it.”

In this case, the Court was ”extremely impressed by the professionalism, thoroughness, care and creativity” of those responsible for the creation of the Advert, describing them as “at the top of their game” and recognizing that allegations of copyright infringement can be particularly serious for anyone working in the creative industry, going to far as to say that “they exit this litigation without the slightest hint or shadow of a stain on their creative integrity” and ordering that Ms. Evans publicise its declaration of non-infringement and the judgment on her website in the wake of her regular posts relating to the claim on social media.

The Power of an Audit Trail in Defending Copyright Claims

What undeniably made the difference in this case, and led to the claim’s dismissal, was adam&eve’s audit trial of not only the Advert’s creation but also its pre-launch clearance searches – ultimately protecting both them and their client. When creating unregistered IP, evidence of development and ownership is key to proving its ownership, allowing for successful exploitation and either deterring or defending its infringement. That rigour likely also led to the continuation of a very valuable client relationship and the defence of hard-won reputations within the industry and retention of fees generated as a result.

Conclusion: The Value of Diligence in Content Creation and Clearance

Showing your working behind the creation and clearance of content not only goes to show how much time and effort went into it but is also a particularly effective shield against what could be a very public, time-consuming, and expensive and multi-faceted dispute to resolve. Your work is worth it.

About the Author

I’m Steve Kuncewicz, a Lawyer at Glaysiers with the best part of 20 years’ experience in supporting the Creative, Digital and Marketing Sector throughout the UK and Internationally, with specific expertise in:

  • IP and Content development, exploitation and disputes;
  • Media Issues, including reputation management disputes, advertising and content clearance and regulatory advice regarding OFCOM, the ICO and ASA;
  • Privacy Issues, including data protection compliance advice and disputes;
  • Commercial Issues, including contracts and wider business advice.
  • 📚 Copyright is a vital IP right for agencies.
  • 💼 Defending against copyright infringement claims is expensive and potentially damaging to client relationships.
  • 🌐 Once a copyright dispute reaches the internet, it’s challenging to restore the agency’s reputation.
  • 🔍 Performing an audit and clearance trail for content can save time and money.
  • 📝 Copyright comes into existence when an original concept is documented in a permanent form.
  • ⚖️ Copyright violations can lead to substantial fines, court orders to pay damages, or a percentage of the profits from the misuse of the work.
  • 👥 It’s possible for two creators to independently create similar works without infringing on each other’s copyright.
  • 🏢 Agencies often bear the cost of potential copyright infringement, including legal fees and other significant losses.
  • 🎄 Case study: A Christmas ad campaign avoided copyright infringement charges due to a well-documented creation and clearance trail.
  • 📂 An audit trail can provide crucial evidence in copyright claims, protecting the agency and its clients.
  • 🛡️ Diligence in content creation and clearance can act as a powerful defense against potential copyright disputes.