Are Ads in Old Magazines Protected by Copyright?

Dear Rich: I am working on a book project which would use advertisements from a major U.S. corporation that were published in a popular U.S. magazine between 1918 and 1962. The magazine itself was copyrighted, but the ads do not contain any copyright markings, so my understanding is that the ads would have entered into the public domain.

The advertisements are most likely in the public domain. It's true that the 1976 Copyright Act expressly requires that advertisements in magazines have separate copyright notices. But your advertisements (1918-1962) are subject to the 1909 Copyright Act, which had no rules for magazine ads.  (See Sec. 3 of the 1909 Act.)

How do they become public domain? First, the ads published from 1918 through 1927 are automatically in the public domain as the copyright has expired. Second, there is caselaw under the 1909 Act that holds that a periodical does not acquire copyright in its ads, even if the magazine's art department created the ads. Third, even if the ads published between 1928 through 1962 were protected by copyright, they would be in the public domain if the copyright was not renewed after 28 years. Only a small percentage -- between 7 and 15% -- of copyrighted works were renewed, so the odds are in your favor.  P.S. You can hire the Copyright Office to search the renewal records.

Pre-roll Ads and Publicity Rights

Dear Rich: Our company posts news interviews online. Does the fact that we're using pre-roll ads require us to get waivers from our interview subjects? 
Whether you need to obtain a waiver/release depends on why you want to use a person’s name or image. If your use is for commercial purposes—for example, using the interview as part of an informercial—you need to obtain a release. If your use is for editorial purposes such as a news interview, you probably don't need a release. We don't think a pre-roll -- those 10 second ads before YouTube videos -- converts a news interview into a commercial purpose (any more than running an ad before a 60 Minutes segment). No court has ruled on the issue and if you’re concerned about liability, you can always talk to the person ahead of time — and video the subject's consent. We've written more about interviews and releases here.

Do We Have to Include Trademark Punctuation?

If a statement such as "Fly high. Fly now." is a trademark, does the punctuation need to be included in the trademark statement at the end of an advertisement? I was taught that it does, but if the trademarked phrase is not italicized or boldfaced, it looks odd. (In the example, it would appear as "Fly high. Fly now. is a trademark of the Whatzit Corporation.") The thing about those tiny trademark statements at the bottom of ads is that nobody reads them except the attorneys for the companies whose trademarks you're mentioning. So it really doesn't matter how it looks as long as  you duplicate the mark as the owner intended. (By the way, if it looks really strange, use single quotation marks to set it apart.) Also, if the mark is registered, indicate that it is federally registered, but don't make a similar statement about an unregistered mark. In some cases -- for example, if you're using a mark with the permission of the owner -- you may have a contractual obligation to use specific language. By the way we took a look at punctuation and trademarks about three years ago so we won't bore you by revisiting the Hall of Famous Punctuated Marks (although we were surprised to see that a few people have registered Punctuation as a mark).