Strange Reasoning

Via the Patry Copyright Blog, it seems there was a bit of an interesting discussion over the advertisement run in the UK for Transport for London and created by folks at or associated with WCRS. The interest was not so much over the advertisement itself, but over the fact that the idea (and perhaps more, see below) was based on one developed in 1999 by Prof. Daniel J. Simons at the University of Illinois in the U.S. (note, java required to see the original). The story has pretty much run its course (I was working on a law review article over the past two weeks, and pretty much stayed out of daily news), with the good Professor not pushing the matter.

Even so, there are two (largely unrelated) parts of this story that I wonder about. The first is the overly legalistic response from the advertising agency in question, and the second is a post which seems to argue that if used to achieve a laudable end, even copyright infringement should be allowed.

Let’s start with the first bit. When asked about its ad, the advertising agency responded:

“We are facing criticism relating to copyright on the cycling safety TV ad. We have been assured that this execution does not infringe copyright. We feel it is a powerful message and is one that will have an impact on this very serious issue.”

The specific language, “this execution does not infringe copyright” is probably based on a case in which Guinness used an editing style that had been developed by a film maker to advertise its beer (the technique, called “jump-cut editing”, makes a dance routine look, well, jumpy). An English court, in looking at the case, first found that the Guinness advertisement was not a copy of the original (the one used multiple dancers, the other a guy in a pub), and that what was protected was the underlying dance routine (if in written form) and the film itself (but only from duplication or recreation, not from “remaking”), but not the editing technique. The court specifically said that the editing technique was not protectable as such, and so Guiness’s “execution” (or use) of the technique did not violate copyright. The case is Norowzian v. Arks Ltd. & Another, [2000] ECDR 205, [2000] EMLR 67, [2000] FSR 363, [1999] EWCA Civ 3018.

What the advertising agency misses here, however, is the English reticence for allowing one creator to create a work using another’s work as the starting point. That’s reflected in “Elanco Products v. Mandops,” which I’ve written about recently here. The point is that in the U.K. starting from someone else’s work and changing it does not a new work make (in the U.S., if the final work “looks” different from the original, the end result is probably “transformative” and not likely infringing, a doctrine that just doesn’t exist here in the U.K.).

So how might that fit in here? Well, if Prof. Simons was inclined to press the matter, then advertising folks at WCRS would have their creative process interrogated. If what they did was 1) watch Prof. Simon’s video; and then, 2) implement small changes so that their version was “different”, their actions may have fallen outside of the Norowzian doctrine (there was no question of copying more than the style in Norowzian; the two works were not similar in appearance — these two are very similar in appearance, though there are minor differences, such as the kind of animal and the number of players) and within Elanco Products. And that just might copyright infringement make.

So that’s number one: relying on legalistic language in response to such allegations only goes so far, and only goes that far if the legal analysis that gives rise to the language is complete.

Here’s number two. In responding to the issue, Simon Veksner at “Scampmade two related comments:

“Please don’t tell me an ad creative can’t be inspired by a book or a film. If a ‘real’ artist can put a urinal in a gallery, then we commercial artists can certainly adapt a pop promo into a TV spot.”

and

“The involvement of - or payment to - the originator gives a much better feeling, for sure.

But then again, if the goal of the ad is to save lives, as in this case…. should we really feel so bad?”

This just doesn’t make sense, honestly. This wasn’t “inspired” here; it was a very close replication, using elements that don’t even fit the theme of the advertisement (as pointed out in comments on the writer’s earlier posting of the advertisement). It was not Guinness saying, “Cool, look at the way that editing makes the dancer all jumpy. Let’s jump-cut someone dancing in our advertisement.” Here, the WCRS folks said, “We could use that as our advertisement.” No real adaptation required or provided. And the fact that it’s for a good cause? Is that really relevant? If WCRS got paid, then I’d say their use of it wasn’t for a good cause, but was to make themselves some money. I don’t begrudge them that, but I don’t think it’s a particularly good “cause” on its own.

I hope that the Scamp would think better of this line of reasoning if he took the time to really think it through. It doesn’t really work for anything better than self-justification, the kind of thing you say when you don’t really have a good argument on your side.

One Response

  1. Scamp Says:

    Hi, really enjoyed your post, sorry I might be really really late commenting on it.

    Anyway… I doubt I’m going to beat a lawyer when it comes to arguing but… here goes!

    1)Regarding whether a creative can legitimately adapt a book or a film… I meant in terms of creative integrity, not legality! Obviously I wouldn’t say they should do it if such adaptation were illegal. You and other lawyers better judges of that than me.

    2) The good cause angle. I agree that WCRS made money on the job, so less of a good cause for them. But their client, Transport for London, is a government body and they are motivated purely by saving lives, so maybe the ‘good cause’ argument can validly be applied to them, at least.

    That’s it. Did I win?