Sunlec International v. Electropar: Copyright in a Slogan: Literature for Marketers?

Abstract

In Sunlec International Pty Ltd v Electropar Ltd (Sunlec), Wylie J. ruled that an eight-word marketing slogan was protected by copyright as a literary work. His Honour's finding has caused something of a stir in New Zealand (NZ) copyright circles because an advertising slogan has, hitherto, not been found to be protectable by copyright.

One leading commentator claims that the decision illustrates why the threshold in NZ copyright law for "originality" of a literary work is too low and, in doing so, has allowed NZ copyright law "to reach a new low". Another observes that the decision is unsupported by overseas and domestic authority and would have benefited from consideration of whether a slogan is really substantive enough to be a literary "work" in the first place. This article argues that neither of these criticisms of the Sunlec decision is entirely justified by extant legal authority. It suggests that both the decision and its criticisms have an underlying theme - they encapsulate the inconsistencies and vagaries of copyright law and provide support for those who would recommend its complete overhaul.

Keywords: copyright, slogan, originality

JEL Classification: K11, K19, K30