Fair use in advertising - what is it and how does it function?


The use of quotes from other works of culture in an advertisement can significantly increase its effectiveness and the possibility of reaching a specific target group - properly selected works will increase the interest in the brand and may contribute to an increase in sales. How can we legally use works that we do not have copyrights to in promotional activities? Read and find out how an institution such as fair use in advertising works.

What is fair use?

The concept of fair use is defined and regulated by the provisions of Chapter 3 of the Act of February 4, 1994 on copyright and related rights. It means free use, without the author's consent, of an already disseminated work for personal use (this does not apply, however, to an architectural and architectural and urban work, and the use of electronic databases meeting the features of a work, unless it concerns personal scientific use not related to profit-making purposes). The right to fair use also covers the use of single copies of works by persons in a personal relationship, in particular by kinship, affinity or social relationship.

The institution of fair use was established to reconcile the interests of the author of the work and its recipient, who would like to use it in accordance with their needs. This means that its task is to protect the work against illegal exploitation, but also to enable the audience to learn about cultural works. The use of fair use may not, however, in any way infringe the author's rights - both property and personal, or limit the possibility of further use of the work. Therefore, the recipient should bear in mind that fair use is intended to enrich and develop the field in which the work was created.

We can divide the fair use into two categories:

  • fair public use - relating to the activities of libraries and educational institutions - is carried out by making works available for educational purposes on the terms set out in various internal acts,

  • permitted personal use - including the rights of private persons.

It is also necessary to mention the extremely important condition for the use of works under fair use - marking of works:

Art. 34. You can use the works within the limits of fair use, provided that the name and surname of the author and the source are mentioned. Specifying the creator and source should take into account the existing possibilities. The author is not entitled to remuneration, unless the law provides otherwise.

Fair use in advertising - how does it work?

In the context of the above-mentioned definition, fair use in advertising may raise serious doubts - promotional activities are usually organized by a professional entity, i.e. a marketing company, and a fragment of the work or even its entirety is to be presented to the addressees of the advertisement, i.e. usually to a wide group of people. Such a situation requires the conclusion of a copyright transfer agreement (usually temporary) or a license agreement with the creator - the creator's consent is important, the more so as the promotional activities are intended to contribute to tangible benefits both by the entity that commissioned the advertising campaign and by the entity that commissioned the advertising campaign. by the agency itself. The license agreement is concluded with the author himself or with a collective copyright management organization, such as ZAIKS. A model application for a license can be found on the websites of such entities.

The situation is slightly different when the work itself is advertised, fragments of which are to be included in the advertisement. Until recently, there were no relevant regulations in Polish law, but now Art. 333 of the Act on Copyright and Related Rights, which says that:

Art. 333 1. It is allowed to use the works to advertise a publicly available exhibition or sale of works to the public, to the extent justified by the promotion of this exhibition or sale, excluding any other commercial use.

2. The use referred to in par. 1, applies in particular to publicly available exhibitions in museums, galleries, exhibition halls and includes the use of works in advertisements, catalogs and other materials disseminated for the promotion of an exhibition or sale, and the display or other sharing of copies of works for these purposes.

This provision is an implementation into Polish law of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. Before its introduction, some authors argued that such a regulation was against their interests, partially depriving them of control over the use of their works, but it was impossible not to notice that in fact such use of the work could bring them more benefits.

Fair use in advertising and the right to quote

An important concept in the context of fair use in advertising is a quote. Its definition can be found in Art. 29 of the Copyright and Related Rights Act:

Art. 29.1. In works constituting a self-contained whole, excerpts from disseminated works or small works in their entirety may be quoted, to the extent justified by explanation, critical analysis, teaching or the laws of the genre of creativity.

2. It is allowed for teaching and research purposes to include disseminated minor works or fragments of larger works in textbooks and excerpts.

2. It is allowed to include disseminated minor works or fragments of larger works in anthologies for teaching and research purposes.

3. In the cases referred to in sec. 2 and 21, the creator is entitled to remuneration.

It is therefore legal to take over some or all of someone else's work, if it is short. We don't need to obtain the creator's approval when using a quote, but neither can we make any changes to it. Although the act does not indicate that it is possible to quote fragments of works for promotional purposes, we can presume that since the legislator did not explicitly forbid it, it is allowed. However, the campaign implementer should:

  • mark the creator and the work - the work should be recognizable,

  • use a quote only in such a way that the recipient has no doubts that a new, independent work was created and authored by the advertiser or entity implementing the advertising campaign.

Therefore, the quote should play an auxiliary and supplementary function, it cannot constitute the sole or dominant part of the advertisement.