No advertising campaign is complete without photo, video, or audio material, as well as text. Often, the materials used for advertising do not originate from the advertisers themselves but were created by third parties. Therefore, copyright is of essential importance for all advertisers. Copyright contains provisions that, on the one hand, protect the intellectual property of the work’s creator and, on the other hand, enable them to transfer specific usage rights to third parties within legal boundaries. This allows copyrighted material to be used in advertising.

What Copyright Protects

Copyright protects works of literature, musical art, fine arts, and cinematic art that can be qualified as peculiar intellectual creations, meaning they can be attributed a certain intellectual originality.

When a Work is a Peculiar Intellectual Creation

A work is considered peculiar, according to the jurisprudence of the Supreme Court (OGH), if it stands out from the ordinary, commonplace, and commonly produced. Furthermore, the result must be an individual, distinctive achievement. The personal characteristics of the creator must, so to speak, be made visible.

The term intellectual means that not only the perceptible work but also the underlying intellectual and creative design are covered by copyright protection.

Creation refers to the result perceptible to the outside world, stemming from an original idea. An idea that exists only in one’s mind and has not yet been put on paper or otherwise manifested is not covered by copyright protection.

When Copyright Arises and to whom it Belongs

Copyright arises with the creation of a work. Therefore, no registration is required for its protection. The marking of a work with the copyright symbol also has no significance for the creation and existence of copyright.

Copyright belongs to the creator of the work, i.e., the person who created it. Only natural persons can be creators of a work. Legal entities, such as a GmbH, cannot therefore be creators. Thus, anyone who creates a peculiar intellectual creation in the course of their employment is the author of that creation, and not the employer. However, the employer can be granted a right of exploitation in the employment contract.

A special rule applies to cinematographic works. The film producer automatically acquires the exploitation rights to the cinematographic work produced by them.

Often, several people are involved in the creation of a work. In such cases, co-authorship or partial authorship arises.

What Rights the Author Has

Copyright protects the personal, intellectual, and economic interests of the author. The author has a so-called right of exclusion, meaning they can exclude third parties from using their work. Therefore, third parties may only use a copyrighted work with the prior consent of the author.

How Long Copyright Lasts

Copyright protection ends 70 years after the death of the author or partial author. In the case of co-authorship, it ends 70 years after the death of the last co-author.

Use of Copyrighted Works

If a third party wishes to use a copyrighted work, for example in advertising, they require appropriate permission or a license from the author.

A license can be granted either exclusively to a single person or non-exclusively to several persons. Furthermore, a license can limit usage in terms of time, location, or to specific media and/or types of use. The scope of the respective use, such as local and/or temporal limitations or transferability by the third party (sublicensing), is best regulated in a license agreement.

Consequences of Copyright Infringement

In the event of copyright infringement, the rights holder has civil law and, under certain circumstances, even criminal law enforcement options. Under civil law, a rights holder has, for example, a claim for injunctive relief and a claim for damages. They can also demand reasonable remuneration for past use.