If an advertising agency infringes copyright, does the client have legal responsibility?

1. Introduction

Advertising agencies utilize various visual, auditory, and written content in their promotional activities for brands. However, sometimes the elements used, such as music, photographs, videos, graphics, or text, may infringe on the copyrights of others. In such cases, the crucial question is: Is only the advertising agency responsible for copyright infringement, or can the client who placed the advertisement also be held legally liable?

This article will examine the legal aspects of copyright infringement, the responsibilities of the parties, the obligations under Intellectual and Industrial Property Law, and provide a practical assessment through a case study.

2. Copyright and Legal Framework

In Turkish law, copyright is protected by the Law on Intellectual and Artistic Works No. 5846 (FSEK).
For a work to be used:

The author's explicit permission must be obtained or
Licensing should be done through professional associations.

Under the Law on Intellectual and Artistic Works (FSEK), individuals or organizations that infringe upon the financial rights of an author may face both legal compensation and criminal penalties.

3. The Role of the Advertising Agency and the Client

An advertising campaign typically includes the following elements:

Advertising Agency: Responsible for the production, editing, and publication of content.
Client (Advertiser): This is the brand that briefs the agency, manages the approval process, and ensures the advertisement is published.
Third-party rights holders are creators of works such as music composers, photographers, graphic designers, and video producers.

The critical question here is whether the client will also be held responsible for a copyright infringement committed by the agency.

4. Criteria Considered in Determining Customer Liability

The client's legal responsibility is assessed based on the following criteria:

Content Approval Process:
If the client reviews and approves the work prepared by the advertising agency and that content infringes copyright, the client may be held jointly liable.
Source of Artwork:
If a client has directly provided the agency with visuals, music, or text, and that material infringes copyright, the client will be primarily responsible.
Knowledge and Will Element:
Liability for negligence arises if the customer knowingly or without exercising due diligence (e.g., without verifying the source) approves the breach.
Contractual Arrangements:
If the contract between the agency and the client does not include explicit provisions regarding copyright protection, uncertainty arises regarding the sharing of responsibility.

5. Case Study

The incident:
“X Advertising Agency” produced a television commercial for a clothing brand. The background music used in the commercial belonged to a famous artist, but a license had not been obtained for the music. After the commercial aired, the artist, through their lawyer, sent a cease and desist letter to both the agency and the brand.

Development:
The brand says it trusted the agency's assurance that "all copyrights belong to us." However, the agency admits it found the music online and did not check the copyright status.

Result:
The court ordered both the agency and the brand to pay joint and several compensation. The reasoning was that the brand had endorsed and published all elements of the advertisement, thus being complicit in the copyright infringement.

6. Types of Legal Responsibility

6.1. Legal (Financial) Responsibility

Financial Compensation: Payment will be equal to the license fee or the damages incurred due to the infringement.
Moral Damages: These can be claimed in cases of infringement of the author's moral rights.

6.2. Criminal Liability

According to Article 71 of the FSEK (Law on Intellectual and Artistic Works):

Those who use works without permission may be punished with imprisonment from 1 to 5 years or a fine.
This responsibility may involve both the agency and the client.

6.3. Loss of Reputation

7. Methods to Reduce Customer Liability

Adding Explicit Copyright Clauses to Contracts:
- The agency must guarantee that the copyrights to all works used are legally secured.
Presentation of Copyright Documents:
- The client must request copyright documents for the advertising materials in writing.
Professional Legal Consultancy:
- Before launching an advertising campaign, you should consult with a lawyer specializing in copyright law.
Stock Content Usage:
- Stock images, videos, and music that are clearly licensed and have copyright status should be preferred.

8. Joint Liability in the Copyright Law

According to the principle of "joint and several liability" in the Copyright Law, if more than one person has infringed copyright, the rights holder can claim compensation from any or all of them.
Therefore, in the case of an infringement committed by the agency, the client can also be held jointly liable.

9. International Dimension

If the advertisement is also broadcast abroad, the Berne Convention and other international copyright agreements come into play. This may give the infringed copyright holder the right to file lawsuits in different countries.

10. Recommendations

Clients should use the “Copyright Compliance Checklist” when working with an advertising agency.
Agencies should utilize licensed libraries in content production.
The approval process must be in writing, and the statement "copyright check has been performed" must be documented.

11. Conclusion

In cases of copyright infringement by an advertising agency, the client's legal responsibility varies depending on the specifics of the case, the agreements between the parties, and the approval process. However, according to the provisions of the Turkish Copyright Law, it is not possible for the client to remain completely unaccountable in most cases. Therefore, instead of relying solely on the agency's assurances, brands should conduct independent copyright checks and support the entire process with written evidence.

Gamze Akbulut, Law Faculty Student

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