What chance does a small, specialised company have in taking a wealthy corporation to task over a copyright issue? Design consultancy Freestone might be about to find out (MW last week).
Freestone believes Yellow Pages’ recent redesign, by design agency Johnson Banks, is a copy of its own corporate identity. It doesn’t hold out much hope of Yellow Pages changing its design and wants compensation to allow it to rebrand.
Yellow Pages, for its part, ridicules the claim and retorts that even if Freestone isn’t “trying it on”, many other companies attempt to cash in on similarities.
The Freestone/Yellow Pages spat again brings copyright law within the marketing and advertising business under the spotlight. But it has also sparked discussions about how to best protect the lifeblood of the industry: credibility, creativity and originality.
Media law firm Simkins Partnership defines copyright as giving the owner control over the reproduction of material including literary, artistic, dramatic and musical works, films, sound recordings, TV transmissions and typographical arrangements. Permission is needed to copy a substantial part of a work.
But copyright does not protect ideas. It only protects the way ideas are expressed.
Parodies can be used to conjure up the idea of the original work, as long as a substantial part of the manner in which the idea was expressed is not reproduced.
Copyright does not, as a general rule, protect advertising slogans, titles, names, words and artistic styles which may be subject to other forms of protection, such as trademarks.
The case filmmaker Mehdi Norowzian lost against Guinness agency Arks proves there is no copyright in an idea, but only in an embodiment of that idea.
There were two copyrighted works involved – the film and the dance. The film was deemed not to have been mechanically copied and dance was found not to be substantially copied, although the ad and Norowzian’s film look similar.
Charlie Swan, partner of media law firm Simkins Partnership, says small companies and individuals frequently settle legal battles with advertising agencies or large companies out of court.
Swan says: “Copyright is a powerful weapon. If there is a strong claim companies will bend over backwards to settle out of court and keep it out of the press.”
Agencies want to shield clients from any doubts over their credibility and will settle quickly and quietly.
Lewis Silkin lawyer Brinsley Dresden agrees: “The vast majority of cases never get to court.”
A handful of cases similar to the Yellow Pages/Freestone row have been well documented over the past five years.
Dresden cites the artist Gillian Wearing’s work involving people holding up boards with their emotions written on them. Volkswagen made an ad based on a similar concept.
Swan cites the examples of Young & Rubicam paying out to photographer Elliott Erwitt over an idea used for a Hush Puppies ad, and Ogilvy & Mather paying out for a Rothman’s ad which was almost identical to a 1962 photo by Marc Riboud.
Freestone feels it must rebrand its three-year-old identity in case potential new clients think the company copied its design from Yellow Pages and do not credit them with any originality. This position is broadly similar to that another design company found itself in three years ago.
In 1996, WPP-owned design consultancy Addison went head on with British Gas and HFC Bank over their Goldfish credit card logo.
Addison had used a goldfish as its logo for seven years when the British Gas and HFC Bank joint venture Goldbrand Development branded its cards with a goldfish logo created by identity specialist Wolff Olins.
Ironically, Wolff Olins founder Michael Wolff had been chairman and worldwide creative director of Addison for five years from 1987 and developed the company’s goldfish logo in 1988.
Addison believed the nature, size and scope of the British Gas campaign would swamp the character of the Addison logo, in just the same way that Freestone fears for its corporate identity.
The Goldfish case was eventually settled out of court.
Addison managing director Quentin Anderson says the experience changed the way the company interacts with potential clients: “Any idea we present now has a copyright on as a pre-emptive measure to protect our intellectual property.
“We also make prospective clients aware of our terms and conditions. Even if the pitch is paid for, the copyright on the work still belongs to us.”
But anecdotes from agency sources suggest that clients are not always knowledgeable, or honourable, when it comes to protected ideas that have been presented to them. One agency recently discovered its unpaid pitch presentation was shown to the incumbent, which was told by the marketing director to come up with something similar.
Anderson believes agencies and clients need to be more sophisticated in addressing the copyright issue.
“As a small agency you only have a finite revenue and it is difficult to take on a global corporation with first division legal advice. But we would always fight to protect the copyright of our ideas, which is essentially what we sell,” says Anderson.
Chris Pearce, managing partner of agency B’lowfish, says coincidences do occur. Coincidental similarities are not an infringement. Pearce recalls three agencies working for three different clients all coming up with an idea based on the Easter Island figures. The debacle did not result in legal action, although it was threatened.
Pearce says: “If there is even a hint that an agency’s creativity is plagiarised, it gets very upset. Agencies are reluctant to own up to ideas not being original. But opinion within the industry was that it was a sad reflection on the homogeneity of the Soho ad scene.”
He advocates internal review processes to vet potential problems, an idea expounded by Lewis Silkin’s Dresden.
Dresden says agencies could help themselves by educating their account directors to spot potential problems: “To guard against copyright infringement, account managers need to be mindful of the law and to find out from creatives where the inspiration behind ideas came from.”
He says: “It is wrong to think everybody that makes claims is just a chancer. Sure, they are out there and big companies are exposed to them, but you have to look at the merits of the claim.”
However much letter writing Freestone’s lawyers are prepared to undertake, the David and Goliath factor comes into play. Dresden says: “It’s a regrettable fact of life in litigation that the party with the deepest pockets has an enormous advantage.”