Copying cakes has been the talk of Twitter this week, thanks to one of the nation’s favourite chocolate treats.
M&S have complained that Aldi’s insect shaped cake infringes the trademark on their chocolate covered Colin the Caterpillar dessert.
Aldi’s alternative, which is cheekily named Cuthbert the Caterpillar, has been causing a stir, as M&S have three trademarks relating to Colin.
A trademark can be based around a name, word, phrase, logo, symbol, design, image, sound, shape, or signature.
Whilst these two supermarkets aren’t the only two to be selling caterpillar-shaped desserts, it opens up a wider debate on the topic of stealing ideas.
Professionals in the PR industry often look at previous stories, campaigns and results for inspiration, but it is important not to get caught out by the law when lifting something seemingly innocent.
The Copyright, Designs and Patents Act of 1988 controls who and how work can be copied, and it protects the creators of anything that requires intellectual endeavour. The law primarily covers the written word, speeches, sound recordings, broadcasts, music and still and moving pictures.
Copyright infringement happens when a person lifts a part, or the whole of a protected piece of work, without the consent of the original copyright owner. This can be through copying the work, renting out or lending copies, showing it to others, or issuing it to the public.
Whist the copyright law differs from the legal process that M&S are instigating against Aldi, it has brought up the interesting conversation of how much you can copy and paste from other people’s work.
Under the 1988 act about copyright, the ‘first owner’ of apiece of work is the author or creator and owns all the copyright relating to it, unless it was created for work purposes and the employee’s contract states otherwise.
The copyrighted status stays on most work (like a book, article, picture, or play) for the duration of the person life who created it, plus an extra 70 years after their death. Computer-generated music or graphics hold their copyright for at least 50 years, with sound recordings holding theirs for 70 years and broadcasts for 50 years.
One product may have several different owners, for example, a team working on a documentary will have copyrights on the script, footage, and music. When working online, uploading content to a website there will be a copyright holder for any images, videos, and text used. Copyright still applies individually for all of these different elements.
The public can access a lot of copyrighted material on the internet, but because it is free to see, it doesn’t mean it is free to re-use and re-purpose. This goes for pictures on Google Images, social media sites and for videos on sites like YouTube. Unless permission from the copyright ‘first owner’ has been granted to use their material online, you could end up in a lot of trouble.
The owner of the copyright could take legal action against you, which could end up in an injunction banning any use of the copied work and the claimant could also be awarded damages by the court, which could prove costly for the person infringing copyright.
When it comes to hyperlinked content on the internet, the European Court of justice ruled that directing a viewer to another website that is accessible by everyone does not breach copyright, if the owner of the copyright is aware. Because of how recently and rapidly the web developed, there is a whole legal grey area, and in other cases hyperlinking to content online, particularly behind a paywall, have ruled as a breach.
It is worth noting that there is no copyright for unrecorded ideas, facts or news stories. Instead, the copyright covers the way that these things are expressed... for example, a picture, the sentences that have been written or the footage recorded.
Common ways PR people could break copyright:
- Dragging pictures from social media or Google Images for an article or release
- Lifting and then adapting copy from a site online
… instead, see if you can get permission from the ‘first owner’ to use their work or link back to the original page with the copy you require. Offering them some credit on your site never goes amiss too.
- Lifting stills, or short clips from the TV.
… instead, write to the company behind the footage and request permission.
We hope Colin and Cuthbert come to an agreement and that you’ve learnt something about the legalities of copyright!