When you are making a film or documentary about a well known company or product, can you illustrate your comments with artistic works or graphic material without breaching the copyright of the artistic work?
In June of this year the company that operates Pizza Hut in Australia sought an injunction to prevent the broadcast of a television advertisement by Eagle Boys Pizza that included unlicenced shots of the Pizza Hut logo on the basis of (amongst other claims,) claimed breach of copyright. (Thompson v Eagle Boys Dial–A–Pizza Australia Pty Ltd  FCA 741 "Eagle Boys").
The case will mark an important development in copyright law as to the incidental use of artistic works in broadcasts.
In the Eagle Boys case, an advertisement was made in which the managing director of Eagle boys (Mr Potter) used the following words:
"I reckon there’s one really important thing all Aussies should look for in a pizza. Is it from a 100 per cent Australian owned company? Because if it’s not, your money’s getting delivered overseas. At Eagle Boys we’re Australian through and through"
Mr Potter says these words against a background of shots of two pizza boxes, one being a mock up created for the purpose of the television advertisement and the other featuring the current Pizza Hut logo. Mr Potter is seen to put those two boxes on an airport trolley, which is then wheeled in the direction of a United Airlines airplane waiting to take off.
The Copyright Act defines 'Artistic works' to include paintings, sculptures, drawings, engravings or photographs "whether the work is of artistic quality or not". These Works are defined further in the Act. For example 'Drawings' includes a diagram, map, chart or plan. Clearly logos come within the ambit of this definition.
Copyright owners of artistic works control the right to:
- reproduce (for example by photographing, photocopying, copying by hand, filming, scanning into digital form or printing);
- publish (for example by; making copies available for sale) and;
- communicate the work to the public (for example via television of the internet.)
To use an artistic work in one of these ways without the permission of the owner is a copyright infringement. Defences for infringement include fair dealing for the purpose of criticism and review, news and current affairs reporting and research and study. Additionally in the case of Artistic works:
"copyright … is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion in the film or broadcast is only incidental to the principle matters represented in the film or broadcast".
What is regarded as "incidental’ will depend on the circumstances.
Pizza Hut claimed that Eagle Boys had infringed their copyright in Pizza Hut’s current logo (an 'artistic work') which had been reproduced and communicated (by the filming and subsequent broadcast). Pizza Hut argued that the use of the Pizza Hut logo was deliberate – for the purpose of comparative advertising. Eagle Boys acknowledged this point, however, they argued that the inclusion of the art work was only incidental.
The purpose of s69 is to allow for freedom of speech particularly where such freedom will cause minimal, if any economic loss to the copyright owner. The section is also directed at incidental background material, for example a painting in an art gallery incidentally televised during an interview with the Director. In this case there is a question over the nature of "incidental" because the incidental use goes to the core of the purpose of the ad.
The injunction was not granted on the basis of the difficulty in calculating the likely damages however Judge Wilcox did emphasise that the questions of interpretation constituted serious matters to be tried. More specifically Wilcox J noted that if Pizza Hut’s argument is correct:
"it would seem to be an infringement of copyright for any advertiser – or for that matter, any other broadcaster (film maker or documentary maker) to make the use of the logo of a company or product to illustrate a matter being discussed."
In the meantime what can creators do if they want to use real products or well known logos in their work? The simple answer is to get permission in the form of a licence by the copyright owner. If you find yourself in this position you should contact the Arts Law Centre of Australia for advice as to the terms of the licence required.
Gulley Shimeld was a Paralegal at Arts Law.
 s10 Copyright Act 1969