Are Commercials Copyrighted?

By Terry Masters

With the free accessibility of information and creative content over the Internet, it can be hard to know what is legally available to take and enjoy for free. It can be confusing to realize that something that may be free and legal to enjoy in one context may not be in another context. Most people think of commercials as a free bit of advertising that they are subjected to when they watch television or listen to the radio. Just because a commercial is broadcast for free through certain media does not mean that it is legal for anybody to upload the commercial on YouTube or post it for download on a website. Commercials are copyrighted, and only authorized parties may broadcast, copy or distribute them.

Original Creative Work

Copyright law protects the creator of an original work by giving him exclusive rights to perform, copy, distribute and display the work for a certain length of time. As long as a creative work is original, the creator holds the copyright in it. If a work is composed of original and unoriginal work, the creator of the original work holds the copyright in the portion of the work that he is responsible for creating. Commercials are a type of artistic performance that qualifies as an original work. Moreover, recording the commercial also creates an original artistic work that is represented by the tangible audio or audiovisual master file. Commercials are creative works in the same way as movies and enjoy the same protective copyrights.

Fixed Format

Under the law, an artist gains a copyright the moment that his creative work is fixed in a tangible form. Once a commercial is scripted or rehearsed, the creator has a copyright in it. Even if a is never aired on television or heard on the radio, the owner still holds a copyright in the production. Most modern commercials are most likely copyrighted. Only those commercials that are in the public domain because the term of copyright protection has expired, lost copyright protection because the owner did not follow the law governing his rights or were dedicated to the public domain by the creator are not copyrighted.

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Federal Registration

The easiest way to check if a commercial is copyrighted is to search the public database of copyright registrations that is maintained by the U.S. Copyright Office. Although the creator of a commercial does not need to register a copyright in the work to have a valid copyright, he must register his copyright if he wants to sue infringers in federal court. The federal copyright statute pre-empts all state laws on copyright, so the only way to bring an infringement action is for the creator to place his work under the auspices of the statute by registering with the government and suing in federal court. State courts no longer have jurisdiction to hear copyright actions.

Multiple Rights Holders

Commercials can have multiple copyrights attached. The producer of the commercial has a copyright in the entire work as performed and a copyright in the specific original parts of the production that he created. The producer may have used the creative work of others to produce his commercial and would have had to obtain permission from the holders of the rights to the material. For example, a commercial might use a background song that is copyrighted to the songwriter and performer. The commercial might also use clips of a past sporting event that is copyrighted to a particular sports team or league. Many commercials consist of an amalgamation of multiple copyrights that belong to many different parties.

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