Creative or Copycat? The Legal Risks of Copyright Violations in Advertising

Writer: Reghan Chartrand

Editor: Iona Jackson

Ethical boundaries surrounding the reproduction of others’ works have often been blurred, but in today’s digital age, this issue has become more prominent than ever. The term “copycat artists” is no longer solely applicable to the art world but now extends into industries where ideas are currency, such as within advertising. With the rise of digital media and the ease of sharing content, the issue of unethical replication has become amplified. As advertising professionals in recent years increasingly rely on compelling visuals and innovative media, this industry often walks a challenging line between inspiration and infringement. 

Copyright law, a subsection within intellectual property law, protects original works of authorship as they are put into a tangible mode of expression.¹ Therefore, this area of law serves as the backbone for protecting creative works. Its application to the world of advertising, which is driven by intangible ideas and concepts, is inherently complex. According to the U.S. Copyright Office, copyright law does not protect ideas themselves, only individuals’ original expression of those ideas.² This distinction is the basis of the legal disputes surrounding copyright law and its enforcement in the advertising field. While companies are typically inspired by the successful advertising and marketing campaigns of competitors, the line between inspiration and infringement can often become thin. The Fair Use Doctrine further complicates this landscape, serving as a principle within the copyright statutes that allows for limited use of copyrighted material without permission in certain circumstances.³ However, when advertisements borrow too heavily from protected works, the nature of their use often weighs against a fair use defense. Recent legal cases such as Beastie Boys v. Monster Energy demonstrate the growing need for copyright law to adapt, which would ensure clearer guidelines and stronger enforcement to protect original creative works from unethical advertising practices.

Copyright infringement occurs when a party uses copyrighted material without permission from the rights holder, violating exclusive rights such as reproduction and distribution.⁴ The Copyright Act grants these rights to authors and creators, ensuring they have the ability to control how their work is used and distributed. Copyrighted material includes any original works of authorship fixed in a tangible medium, such as images, videos, music, literary works, software, and even architectural designs.⁵ In the digital advertising industry, this often includes the unauthorized use of images, videos, music, artwork, and written content. While marketing encompasses a broad range of strategies, one particularly relevant approach is known as “content marketing,” which involves creating and distributing content with the goal of attracting and engaging a target audience.⁶ Unlike traditional advertising which directly promotes products or services, content marketing seeks to establish a relationship with consumers that directly resonates with their interests and needs.⁷ However, this content often serves a key component of larger advertising campaigns. Understanding the intersection between marketing strategies and advertising practices is essential to properly navigate copyright laws and ensure compliance. When marketers and advertisers misuse or fail to obtain the proper rights for the content they use, they risk facing serious legal consequences.⁸ 

A notable case of this occurred in 2013 with Beastie Boys, when the energy drink company Monster Energy used the Beastie Boys’ music in a promotional video without securing the necessary licenses. The District Court for the Southern District of New York ruled in favor of the Beastie Boys, awarding them $1.7 million in damages.⁹ This case highlighted how important it is to secure the proper licenses, specifically voluntary licenses, before incorporating copyrighted material into marketing and advertising campaigns. Voluntary licensing refers to when a copyright owner grants permission to another party to use their work under negotiated terms, such as through a written agreement that specifies the rights granted and any associated royalties.¹⁰ In the case of the Beastie Boys, Monster Energy would have needed to negotiate and obtain a synchronization license, a type of voluntary license, to use the band’s music in their promotional video. Under U.S. copyright law, businesses must obtain rights to use works like music through agreements with copyright owners, such as synchronization licenses for audiovisual works.

Furthermore, the case illustrates the limitations of the Copyright Act, particularly regarding the distinction between voluntary licensing and statutory licensing. Statutory licenses, which set predetermined terms and rates for certain uses of copyrighted works, do not extend to commercial advertisement.¹¹ As such, Beastie Boys v. Monster Energy provided precedent for cases involving direct copyright infringement, reinforcing the necessity for businesses to obtain legal authorization before attempting to use copyrighted material and demonstrated the need to encourage stronger ethical standards within advertising and marketing strategies.

While copyright law is intended to protect original works, the legal exceptions that are most often cited in response to infringement allegations are those under the Fair Use Doctrine. This principle allows the unlicensed use of creative works in certain contexts. Fair use applies to cases including commentary, parody, news reporting, education, and research. Courts must evaluate several factors in order to determine whether certain uses qualify as “fair,” such as the nature of the copyrighted work, the amount and substantiality of the work that’s being used, and its effect on the market value of the work.¹² These factors aid federal courts in determining whether companies are attempting to use creative works in a meaningful or exploitative manner. For instance, within the Beastie Boys case, the court noted that Monster Energy’s use of the audio was commercial in nature and had a significant impact on the market value of the Beastie Boys’ music, which weighed against a fair use finding.¹³ In cases like this, where the use was commercial and not transformative enough to qualify as fair, the Fair Use Doctrine did not provide sufficient legal protection. Thus, the application for this principle remains fact-specific, often being determined on a case-by-case basis.¹⁴

Another legal challenge within marketing and advertising that has gained traction in recent years and complicates the fair application of copyright law is companies’ increased reliance on user-generated content (UGC). UGC refers to content created by consumers, which many brands are now incorporating into their promotional strategies.¹⁵ Examples include customer reviews, social media posts, and viral videos. From the perspective of a marketer, UGC is a great way to diversify advertisements for companies in a manner that is both cost effective and authentic, as the content is leveraged directly from their customer base.¹⁶ In fact, seventy-nine percent of people say that UGC highly impacts their purchasing decisions,¹⁷ which makes it a powerful tool in driving consumer engagement and influencing brand perception. This trust in user-generated content is clearly reflected in the trend of brands incorporating it within their marketing campaigns. However, while UGC offers brands a valuable tool for promotion, it also raises significant copyright concerns.

Social media has transformed how brands interact with consumers by providing rapidly evolving methods to shape public perception and engagement. Because copyright protection applies only to original works in a tangible medium of expression, companies must be especially mindful of how they repurpose UGC on social media in their advertising and marketing campaigns. A common misconception is that publicly accessible content is free for commercial use, but unless explicit permission is granted by the creator, businesses that use UGC face the risk of potential legal repercussions. This issue is complicated by platform agreements—often referred to as “terms of service” or “terms of use”—which grant social media platforms broad rights over user-uploaded content.¹⁸ Thus, the distinction between fair use and infringement becomes increasingly unclear, making it essential for companies to take the necessary measures to avoid potential copyright disputes and ethical concerns surrounding content ownership within their marketing strategies. 

As marketing and advertising continue to evolve in the electronic age, so do the issues surrounding copyright law. While the “fair use” doctrine provides some flexibility, it remains a limited defense that is ultimately determined on a case-by-case basis. Therefore, with areas of content marketing and the rise of user-generated content presenting possible copyright disputes, it is crucial that businesses stay informed on the appropriate legal regulations and prioritize adopting ethical marketing practices and advertising efforts that respect intellectual property rights. In doing so, businesses can develop while maintaining their integrity, ensuring not just their long-term success but customer loyalty through proven authenticity. 

1. U.S. Copyright Office, What is Copyright?, http://www.copyright.gov/what-is-copyright. ↩︎
2. Id. ↩︎
3. The Copyright Act, 17 U.S.C. § 107 (1976). ↩︎
4. 17 U.S.C. §§ 501–513 (1976). ↩︎
5. 17 U.S.C. § 102 (1976). ↩︎
6. Am. Mktg. Ass’n, What is Content Marketing? A Beginner’s Guide (Sept. 2024), ama.org/marketing-news/
   what-is-content-marketing. ↩︎
7. Id. ↩︎
8. Ross Kimbarovsky, Everything Marketers Need to Know to Avoid Violating Copyright Law, CrowdSpring (Oct. 2023), crowdspring.com/blog/marketing-copyright-law. ↩︎
9. Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31 (S.D.N.Y. 2015). ↩︎
10. Rec. Indus. Ass’n Am., Licensing, riaa.com/resources-learning/licensing. ↩︎
11. Id. ↩︎
12. 17 U.S.C. § 102 (1976). ↩︎
13. Beastie Boys, 112 F. Supp. 3d at 31. ↩︎
14. U.S. Copyright Off., Fair Use Index (Feb. 2025), copyright.gov/fair-use. ↩︎
15. Diana Myers, 4 Great Examples of User-Generated Content (UGC), Dig. Mktg. Inst. (Dec. 2024), digitalmarketinginstitute.com/blog/how-to-use-user-generated-content-ugc-with-4-great-examples. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Bruce Goldner & Naomi Sosner, Social Media Platform Agreements and Brand Risk 2 (2013). ↩︎

Featured image courtesy of: Image of computer screen and copyright symbol, in Freeths, Advertising & Marketing Law Webinars, freeths.co.uk/legal-services/commercial-law/intellectual-property-media/advertising-marketing/advertising-marketing-webinars.