The Curious Case of the Chocolate Crackle and other copyright myths

ANRMyth 1 You need to register copyright.

Reality In Australia, and many other countries, you can’t register copyright because there is no register. Even in countries such as China and the United States where there is a register, you can enforce your copyright without registration, although there are advantages in having a registration when suing infringers.

Myth 2 You can protect your idea by writing it down and sending it to a trusted friend.

Reality Copyright protects expression, not ideas. This procedure provides evidence that you had your idea by a certain date, but that won’t stop anyone using the same idea if they think of it independently, or copying your idea once you make it public. If you are only going to disclose your idea to a few people, you can ask them to sign an agreement that they won’t use or disclose it without your permission. The only way to protect ideas from being copied once they are made public is through the patent system, if they comply with the requirements for patentability.

Myth 3 You can copyright the name or advertising slogan of a product.

Reality Names and slogans are normally too insubstantial to be the subject of copyright, as the owner of the copyright in the song The Man who Broke the Bank at Monte Carlo found out when it sued the makers of a film of the same title which did not otherwise make use of the song. However, if the name or slogan forms part of a logo, the logo may be an artistic work, and be protected by copyright. Names and advertising slogans may be protected by registering them as trade marks, and Kellogg has indeed registered CHOCOLATE CRACKLES as a trade mark for products that include chocolate coated snack foods made from rice or cereals. However, trade mark registration does not prevent other people using the words, descriptively, or in a non-commercial context. Other people can also the use same words as a trade mark in relation to goods and services that are not similar to the ones the trade mark is registered for, unless the trade mark is so well known that the other use is likely to cause confusion.

Myth 4 You paid for the material to be created, so you own the copyright in it.

Reality This can be a very expensive mistake. If an employment agreement doesn’t mention copyright, employers will own copyright in material created by employees, provided creating the material was part of the employee’s role. If a personal assistant comes up with a great logo for the business, the business won’t own it without an express agreement. Copyright in material created by independent contractors (such as advertising or design firms), usually does not belong to the customer without an express agreement, although the customer has the right to use the material for the purposes it has been commissioned for. Without a written assignment or exclusive licence from the creator, the customer won’t be able to stop other people using the material. The creator may demand more money if the customer expands the use of the material (for example, by franchising).

Myth 5 It’s alright to use someone else’s work providing you change 10% (or 25%) of it.

Reality Another expensive myth. Unless a specific exception in the Copyright Act applies, you will infringe copyright if you reproduce a substantial part of a work. There is no specific measurement of what is ‘substantial’. It depends on both the amount taken, and how important that part is to the work that has been copied. In general, if using the other work has saved you time, money or trouble, you have probably infringed. Another test is whether the original work can still be identified in the later work. Adding your own material to what has been copied does not help with avoiding infringement.

Myth 6 You bought a painting, so you can do what you like with it.

Reality Two major errors in thirteen words. First, buying the painting normally doesn’t mean you have bought the copyright, and if you haven’t, you can’t reproduce it (or a substantial part of it) without the artist’s consent. Secondly, even if you have bought the copyright, the artist still has moral rights in the artwork under the Copyright Act, which prevent you destroying it, subjecting it to derogatory treatment (e.g. copying it on tea towels) or claiming that you painted it, among other things.

Myth 7 Copying other people’s original product designs always infringes copyright.

Reality This is one of the messiest areas of copyright law! Usually there is no copyright in three dimensional products themselves (unless they are sculptures or ‘works of artistic craftsmanship’ such as some jewellery or ceramics). However, there is copyright in design drawings for products, and in any artistic works on the surface of the product. Once a design for a three dimensional product has been used to make and offer for sale products on an industrial scale (fifty or more items), anyone may copy the shape of the product without infringing copyright in the design drawings, provided:

  • the design is not the subject of a current design registration under the Designs Act (which only lasts for ten years), and/or
  • the product is not one of the exceptions in the Copyright Act (including buildings and works of artistic craftsmanship).

Warning: No matter how many products have been offered for sale, you can’t copy surface decoration until it is out of copyright! Nor can you copy labels, packaging or instructions.

Myth 8 If you are just a reseller, you won’t infringe copyright.

Reality You can indirectly infringe copyright by selling products that were made in Australia which include copyright material (such as books, DVDs and textiles with graphic designs) if you knew or should have known that making them infringed copyright. Imported products are riskier. You can infringe copyright by importing products or selling imported products without the consent of the copyright owner, if you knew or should have known that the importer did not have the right to make them in Australia. This applies to both genuine and counterfeit imported products. If you buy genuine designer printed t-shirts made overseas from an importer who tells you (falsely) that it has been licensed by the manufacturer to distribute the t-shirts in Australia, you will infringe copyright if you resell them. In this situation you would be an ‘innocent infringer’ and not have to pay damages (although you may still have to cough up any profits you made).

Myth 9 You need permission to sell photographs you take of the Sydney Opera House.

Reality Although the Sydney Opera House, like all buildings, is defined by the Copyright Act as an artistic work and is protected by copyright, the Copyright Act permits the making, publication and sale of a painting, engraving, drawing or photograph of a building without the permission of the copyright owner.

Warning: you can still get into legal difficulties (including under the Australian Consumer Law) unless you make it  absolutely clear that you don’t have a commercial connection (such as a licence) with the Sydney Opera House.

Myth 10 A copyright owner can only recover damages if the infringement has caused it to lose sales.

Reality There are several ways that a court can compensate a copyright owner for infringement. If the copyright owner would have granted the infringer a licence if asked, the court can award damages equal to the licence fee. If the infringer has used the copyright work in a way that damages the reputation of the copyright owner, such as reproducing it on inferior products, damages can be granted for that. The court can order the infringer to pay the profit it made from the infringement to the copyright owner. If the infringer has behaved particularly badly, it may be ordered to pay all or part of the value of the infringing products to the copyright owner, or to pay ‘additional damages’ which can be many times greater that the copyright owner’s loss.







Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.