Copyright Risks in Refusing Legacy Marketing Content

Introduction : Imagine a company that wants to bring back a TV advertisement that it ran ten years ago. However, the public still remembers that the agency finished its work long ago and the original video is sitting safely in the company’s archive. On the face of it nothing could be easier than putting it back on air.

But a closer look at the ad shows the problem. The song was licensed only for a fixed period, and that period may have ended years ago. The model signed a release that covered television commercials and nothing else, so social media, streaming platforms and billboards are a different matter. And the photographs in the ad came from a stock library which usually sells permission with strings attached.

Therefore, to understand what the company can safely reuse, we first need to look at how copyright works in an advertisement and who actually owns each piece of it. In an increasingly business environment companies frequently revisit their past campaigns to create future marketing opportunities. Existing promotional campaigns or materials can be considered cost-effective and can preserve brand consistency while further strengthening relationships with established customers. However, the marketing content does not mean that it is legally available for unrestricted reuse. 

The possession of an original advertisement, video, photographs or campaign file does not necessarily confer unrestricted rights over every element incorporated into it.  It is required that the ownership and usage associated with rights may be governed by separate contractual arrangements, including agreements with advertising agencies, independent creators and third-party rights holders. Such arrangements may restrict the duration, geographical scope, permitted platforms or specific purposes for which the material can be used.  Similarly, permission obtained for photographs, music, performances and stock assets may not extend to subsequent campaigns or new forms of commercial exploitation. 

The permissions required for a Company may possess the original files without owning all the intellectual property associated with them. The rights granted by an advertising agency may have been limited by time, territory, media or any other purpose. Similarly, the permission obtained from photographers, musicians, performers or any other stock content providers may not cover a new advertising campaign. 

Consequently, the reuse of legacy marketing content requires more than a commercial assessment of its effectiveness. Also, the Companies must also examine the scope of their intellectual property rights with terms of relevant licenses and the continuing compliance of the material with applicable advertising requirements. 

Understanding copyright ownership in marketing content 

Marketing campaigns involve the collective efforts of several contributors, including advertising agencies, photographers, musicians, performers and stock content providers etc. Although these contributions may be combined into a single advertisement there legal rights associated with each component may remain distinct, and so the authority of a company to reuse an entire campaign cannot be determined solely by examining who commissioned or possesses the finished material. 

Consequently, an advertisement is a bundle of separate rights and not a part of single work. A single commercial can therefore contain a cinematograph film, a musical work, a sound recording, literary work, artistic works, performances, etc. Additionally, Section 13(4) of the Copyright Act, 1957 makes the point expressly as copyright in a cinematograph film does not affect the separate copyright in any underlying work used in it.

Then who is considered the first owner of copyright? 

The answer lies in Section 17 that makes the author the first owner which is subject to certain exceptions as:

• Section 17(b): for a photograph, painting, portrait, engraving or cinematograph film made for valuable consideration at a person’s instance, that person is the first owner in the absence of any agreement to the contrary.

• Section 17(c): for works made in the course of employment under a contract of service, the employer is the first owner, again subject to any contrary agreement.

So, a company that commissioned the film may own the film itself, but this does not automatically extend to the music, a freelancer’s photographs, or the agency’s pre-existing material. Everything turns on the contract.

• Furthermore, Sections 18 & 19 of the Copyright Act address the assignment of the copyright and the requirements governing such assignments. Section 30 of the Act deals with licenses granted by copyright owners. These provisions highlight the importance of documenting the rights obtained, including their scope, duration and territorial extent.  In the case of Indian Performing Right Society Ltd v. Eastern India Motion Pictures Association (1977) 2 SCC 820The Supreme Court considered how Section 17 allocates ownership between film producers and the composers of music commissioned for films. The 2012 amendments later added protections for authors of musical and literary works in films, so discuss this case together with the amended Section 18 provisos.

• Also, in the case of, Eastern Book Company v. D.B. Modak (2008) 1 SCC 1 The focus is stressed on the originality threshold relevant to how much creative contribution makes an agency’s work protectable.

Assignment and licence: who really owns what you paid for?

Ask most marketing teams whether they own their old campaigns and you will hear a confident yes. They paid the agency, they have the files, so the work is theirs. Indian copyright law is less generous. It cares far more about what was signed than about what was paid. Section 19 of the Copyright Act, 1957 says an assignment only counts if it is in writing and signed by the person giving up the rights. It also has to name the work the rights are being handed over and how long they last and where they apply. An email thread or a line on an invoice rarely does all that. Licences work the same way. Section 30 of the Copyright Act, 1957 asks for a signed written document and Section 30A applies the Section 19 requirements to licences too.

It is pertinent to note that the part that catches people out is what happens when the contract says nothing. The Act fills the gaps and is not in the buyer’s favour. Furthermore, if no duration is mentioned under Section 19(5) of the Act, it  treats the assignment as lasting five years. Additionally, if no territory is mentioned, Section 19(6) limits it to India. And under Section 19(4) mandates if the buyer does not use the rights within a year the assignment can lapse unless the contract says otherwise. Now picture a company bringing back an advertisement from ten years ago. The agency agreement handed over the script, the jingle lyrics and the artwork, but never mentioned a time limit. The company has always assumed those rights were permanent. Under the default rule, they may have run out around the five-year mark. An ad that was perfectly legal when it first aired could be an infringement the day it returns to screens.

Key copyright risks in legacy marketing campaigns

1. Expired Agency Relationship and Unclear Ownership

2. Performer rights in old advertisements.

3. Stock Photography, Music, and Third-Party Licenses.

4. Territorial Limits and New Media Platforms.

Why an Old Campaign Is Not an Open Campaign

A lot of people assume that once an advertisement is ten years old it has aged out of legal trouble. The law works the other way round. Copyright lasts a long time and a decade barely scratches it. Under the Copyright Act, 1957 this term depends on the type of work such as  literary, musical and artistic works are protected for the author’s lifetime plus 60 years as mandated under Section 22. Cinematograph films, photographs and sound recordings get 60 years from the beginning of the calendar year after publication (Sections 25, 26 and 27). A performer’s right runs for 50 years (Section 38). Every element in a ten-year-old ad is still well inside protection, so nobody can treat the old campaign as public domain.

The problem mainly arises when a company tries to reuse an old campaign. The music license may no longer be considered valid, the agency agreement may not include digital platforms and the source of a stock image may be difficult to identify. Similarly, the model's release form may be missing or may not extend to the proposed use of the campaign. Thus, possession of the original campaign files does not necessarily mean that the company has the legal right to reuse them for a new purpose. 

In the case of In Entertainment Network (India) Ltd v. Super Cassette Industries Ltd (2008) 13 SCC 30The Supreme Court dealt with the limits of what a broadcaster could do with sound recordings and musical works and showed that rights are tied to what the law and the licence actually give. Therefore, permission for one use does not stretch to cover another. The cost of getting this wrong is real. Use beyond a licence can amount to infringement under Section 51. A rights holder can seek an injunction or damages and an account of profits under Section 55 and Section 63 adds criminal liability for knowing infringement. An injunction in the middle of a relaunch after the media spend is committed is the outcome most brands fear. Where rights cannot be established there are four exits: renegotiate the licence, get fresh permissions, replace the disputed element, or make something new.

Conclusion

An obsolete marketing strategy that numerous people tend to remember is of immense value. It manages to cut costs, helps maintain goodwill and ensures that a brand has something it can rely on. Nevertheless, the performance of such a marketing strategy as well as the legality of its reuse are separate matters.

Outdated licenses, specific performers’ rights agreements, limited time frames for the use of stock, and geographic limitations can affect the relaunch of a marketing strategy. This is especially true in the case when advertising campaigns are being executed in multiple markets. In most cases, the licenses that were sufficient ten years ago will become invalid today. It is much better to be more cautious with the rights management in addition to creative work: proper licensing, the ownership of the media, and verification of paperwork should be done before a media plan is accepted.

Although some companies may believe that the question is whether they still possess the video, the most crucial point is that they should be able to validate their right to use it as they plan to do.

Author: Ishika in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney