Joined: 29 Jan 2010
|Posted: Wed May 16, 2012 11:14 pm Post subject:
I think that's my first balloon related question.
You don't mention if this was a conventionally shaped balloon or if it had any particular markings on it, although I assume it is distinctive enough for you to be able to recognise it in an advert.
The reason I mention the shape and decoration is because these are the only features which might attract some protection through either copyright (for the artwork) or design right (for an unusual shape), other than if there was a sponsor's logo or trade mark on it. Only the owner of the trade mark would be able for bring a cause of action if there was thought to be infringement of their mark.
Copyright would be extremely weak protection in the circumstances you describe because by definition when the balloon is out in public you or the previous owner have effectively made it available to the public to view and anyone filming the event generally would be almost bound to get an incidental shot of the balloon or if the event was being filmed for the purposes of reporting news (arguably this might apply to the Holiday Programme), both of these activities would be legal under copyright law. Design right equally offers no real protection here because no-one is seeking to reproduce a balloon of the same design and/or surface decoration, so there is no infringement.
So what I believe is at work here is the advertising industry's general caution (as exemplified in their Code of Practice) and desire not to include footage of individuals or their identifiable property without consent. There is no real law behind this precautionary approach other than that of defamation or Article 8 of the European Convention on Human Rights (the Right to respect for a private and family life) - neither of which are likely to apply in the situation you have described. So that only leaves a very weak argument for passing off, that is to say that by featuring your balloon, it might be argued that Warners were implying your endorsement of their product. The only reason this might work as a cause of action is because, unlike news footage, adverts are carefully scripted, edited and produced, so even a lay person would know that the balloon had been deliberately featured and was not just there through a happy accident.
I think the best starting point would be to find out what rights were signed over to the BBC by the previous owner. For instance did he agree that the footage could be held in their stock library and also was there permission to sub-licence the footage to a third party, such as the advertising agency working for Warners? If a comphrensive release form was signed, I think it would be very hard for you to bring any sort of case against either the BBC or the advertising agency. The latter could certainly offer a good defence that they were acting in good faith when they bought a licence to use the footage from the BBC library. Given the nature of the BBC I would be surprised if the paperwork was not sufficiently comprehensive, but it would be worth checking.
You cannot do anything about the events which occurred before you bought the balloon, but you may be able to rescind the licence granted by the previous owner with regard to any future use of the footage. Again this will depend on the wording of the release which was signed.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007