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In advertising, creativity is paramount. Advertising agencies thrive on their ability to conceive innovative concepts that resonate with audiences, driving brand awareness and engagement. These concepts, often the result of extensive brainstorming sessions, strategic planning and creative execution, are invaluable assets to agencies and their clients. Whether they can be legally protected involves examining the principles of copyright law.

Copyright law safeguards original works of authorship, providing creators with exclusive rights to reproduce, distribute, perform, display and modify their creations. While copyright has traditionally been applied to tangible forms of expression such as literary works, music and art, it can also extend to certain intangible creations, including advertising concepts.

Ad agencies invest substantial time and resources in developing campaigns, crafting compelling narratives, visuals, slogans and strategies to convey a specific message or evoke desired emotions. Such enterprise results in the creation of intellectual property (IP) that merits protection under copyright law.

A key aspect of copyright protection is originality. To claim copyright, an advertising concept must be the product of the agency’s independent creative effort and possess a minimal degree of creativity. While ideas themselves cannot be the subject of copyright, the expression of those ideas in a tangible form, such as a scratch film, script or presentation, qualifies for protection.

When an ad agency pitches a campaign to a client, it usually presents a comprehensive package that includes visual mock-ups, written content, and strategic insights. This pitch serves as evidence of the agency’s creative contribution and forms the basis for copyright protection. In cases of infringement, agencies can rely on this documentation to assert their rights and seek legal remedies.

Copyright protection extends beyond the tangible elements of an advertising campaign to include the underlying concepts and themes. Even if a competitor has not directly copied the visual or textual components of an ad, it may still infringe an agency’s copyright by replicating the core concept or storyline. In such instances, courts evaluate similarities between the allegedly infringing work and the original concept to determine whether a violation has occurred.

The Bombay High Court dealt with this issue in . The court had no difficulty in finding that the plaintiffs were, on a preliminary basis entitled to the injunction, however, considering the balance of convenience, the court directed the defendants to deposit a substantial sum. In the recent case of , Delhi High Court followed the test of substantial similarity as laid down in the landmark Supreme Court judgment in RG Anand v Delux Films and Ors. In a preliminary assessment, the court found that the launch of the Jindal-Steel of India campaign by the respondent, was substantially based on the theme and concept that the petitioner had presented to the respondent, in the form of presentations, scratch films and other media.

The court did not grant an injunction because the balance of convenience favoured the respondent but did order the deposit of a substantial sum. The matter was subsequently settled between the parties.

Enforcing copyright in the advertising industry can be complex due to the transient nature of campaigns and the global reach of digital media. Agencies must remain vigilant to discover possible infringements and be prepared to take swift action to protect their IP rights. This may involve sending cease-and-desist letters, pursuing litigation or negotiating settlements.

It is clear that creative concepts developed by ad agencies can be protected by copyright. Such concepts represent the product of artistic vision, strategic thinking, and client collaboration. They deserve recognition and legal safeguarding. By understanding and using the principles of copyright law, ad agencies can safeguard their IP and preserve the integrity of their creative endeavours in a competitive marketplace.

Essenese Obhan is the managing partner, and Ayesha Guhathakurta is a senior associate at Obhan & Associates.