A client asked today if he could reproduce logos of big companies without permission onto a brochure which he’d designed to promote his new marketing services business.

His intention was to make the brochure more attractive. He wanted to illustrate results he could deliver and make the brochure a more convincing marketing tool. The brochure promotes his services as a marketer for businesses wanting to build their brand.

It’s a simple question. I’ll try to keep the answer simple too, and short.

On trade mark law I said the coast was clear:

“The key principle as to why your use on brochures is not in breach of trade mark and reputation protection law (eg trade practices law) is that you are not using those logos as a trade mark for your goods or services. In other words you are not using them to signify that you offer like goods or services.”

As for copyright law, ahh “Houston, we have a problem” I said:

“As for copyright law, as a practical observation I don’t think anyone will make any issue. However in terms of law, what you are doing is a breach of copyright law unless it can fit within the very constricted “fair dealing” exceptions in Australia in Part III, Division 3 of the Copyright Act 1968 (Cth). Sections 40 through to 43 provide for the following exceptions to copyright due to the use being a “fair dealing”

– research or study, eg when a block of text is copied for a research report;
– criticism or review, eg when a review of a painting reproduces it;
– parody or satire;
– reporting news; or
– judicial proceeding or advice by a lawyer or patent or trade marks attorney.

The above is just a snapshot, there are in fact pages and pages of considerations in sections 40 through to 43.

In short, your intended use I don’t think fits into the fair dealing categories.

The fair dealing exceptions available in Australia are constricted into the categories above, they are not at all like the broader and more general copyright concept of “fair use” as it appears in U.S. copyright legislation.

This is one of the reasons why in a copyright conference last month one speaker spoke to the subject: “Could Google, Inc have created its business in Australia?”. The answer is probably no. Google could not have created its business in Australia because our fair dealing exceptions would not have come to its aid in the fashion it seems that fair use copyright law did for Google’s U.S. based servers and business.”

So it’s clear, copyright fair use (U.S. law) is unlike copyright fair dealing (Australian law).

A parting puzzle. Copy one hundred copyright works as part of research of them and that might get you out of being a copyright infringer, due to the copyright exception of fair dealing for research. Yet copy one only with no research commentary might make you a copyright infringer.

Contact us with any questions or requests.

Noric Dilanchian