Can You Use Copyrighted Material in Advertising?

by Brenna Davis
Musical recordings are frequently copyrighted.

Musical recordings are frequently copyrighted.

Jupiterimages/Photos.com/Getty Images

Copyright laws protect a creator's right to his original work -- and limit others from using that work. Copyrighted material that you may want to use in advertising include photographs, song recordings, art and pieces of literature. However, copyright laws generally prohibit profiting from a work when someone else owns the rights. If you violate someone's copyright, you may be sued and could have to pay damages and attorney's fees.

Protect against infringement by registering a copyright. Get Started Now

Copyright Basics

It's important to know the copyright status of a work before you attempt to use it in advertising. Tangible items created after 1978 receive automatic copyright protection under U.S. law. Copyright owners do not have to register their works or display a copyright symbol. Works created prior to 1978, must display a copyright symbol or the work must be registered with the U.S. Copyright Office.

Commercial Use

Most advertisements constitute commercial use of copyrighted work -- and this use is prohibited without the owner's explicit permission. Very old material -- works published prior to 1923 -- are considered public domain and may be used in commercials. Copyrights for works published after 1923 generally last for 95 years from the time of publication or 120 years from creation, whichever occurs first.

Fair Use

Fair use is the primary exception to U.S. copyright laws. Copyrighted works may be used in ways that benefit the public and in scholarly or educational contexts. Ads are unlikely to be scholarly, but may be educational or benefit the public. For example, an advertisement designed to help people quit smoking might be able to use a quote from a medical textbook. Educational ads about bullying or drug use may also fall under fair use. However, the Fair Use Doctrine does give you carte blanche to use copyrighted material. Instead, snippets of the material must be used -- and the educational or public welfare purpose must be clear. There are no clear laws regarding how much use of a copyrighted item is too much. For example, a few lines from a book might be permissible, but a few pages might not be.

Permission for Use

Often, using copyrighted material in your advertising means that you'll have to obtain a license, which may involve a fee. For lesser-known works, such as self-published books, it's possible that the owner will welcome the publicity and only seek to have her name associated with the work somewhere in the advertisement. You can determine who you'll need to contact for permission by locating the copyright owner, who may or may not be the person who created the work. The name next to the copyright symbol is typically the copyright owner. If there is no copyright symbol, you can search for the owner in the online files on U.S. Copyright Office website. Because the search can prove long and tedious, the Copyright Office staff will conduct the search for you at an hourly fee.