Sunlec International Pty Ltd v Electropar Ltd: Can there be copyright in an advertising slogan?

In Sunlec International Pty Ltd v Electropar the High Court held that copyright subsisted in the following eight-word advertising slogan: "Field Friendly – the best choice for field work". So just when will copyright be held to subsist in such minimalist works?

This decision is surprising in light of strong UK precedent that copyright cannot subsist in advertising slogans – particularly where the amount of independent skill, labour and judgment involved in the composition of the slogan has been too small to justify copyright.

The reason that copyright has traditionally been found not to subsist in advertising slogans is that slogans are too insubstantial, and the amount of independent labour and judgment involved in their composition is simply too small to give rise to a copyright work.

A further reason is that they have not been considered by the Courts as affording sufficient information, instruction or literary enjoyment to qualify as a "work" for the purposes of copyright.

The Court in Sunlec noted that there has been little consideration of this issue in New Zealand authorities.

Justice Wylie held that it was wrong to assert that copyright cannot subsist in an advertising slogan merely because it is a slogan. Rather, enquiry should be made into the circumstances in which the slogan has evolved and been created. If independent skill, labour and judgment has been involved in its creation such that it satisfies the requirement of originality, and if it conveys information, instruction, or pleasure, then, in Wylie J's view, a slogan can attract copyright protection.

In Sunlec, the plaintiff gave evidence that it had spent a considerable amount of time devising the slogan, and it had apparently reviewed and rejected a number of different phrases. The Court was satisfied that although the language used in the slogan was taken from the common stock of English language, the slogan used language in a succinct and relatively memorable way. The Court held that on balance, it could not be said that the slogan was hackneyed.

The decision of the High Court in Sunlec is questionable and an unwelcome development, as it opens the door for copyright to subsist in passages of text that had previously been considered to be too insubstantial to provide the basis for copyright.

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For more information please call Jason Wach on 64 9 916 8807.