08.10.07
Copyright, bunnies and the public domain

bunnies_tvad

Last week saw the launch of the latest Sony Bravia ad, further exploring the idea of ‘colour like no other’. After balls bouncing through San Francisco and paint-filled pyrotechnics on a Scottish housing estate, we’ve now got animated bunnies stop-framing their way through New York, which then turn into a wave which turns back into a bunny, and so on…

Like its predecessors, it will easily stand up to repeat viewing and is a technical tour-de-force that will probably clean up in the end-of-year gong-fests.

But only days after its launch it seems the idea is perhaps not quite as unique as it first seems. LA based artists kozyndan (as in Kozy and Dan) who have spent much of their careers riffing on, er, bunnies, think the ad is a little too close to comfort. This has annoyed the production company so much it’s now issuing flat denials.

The suggestion that an ad is similar to something else is of course not new. Anyone who has seen Wim Wenders’ masterpiece Wings of Desire will be starting to lose count of how many times his ideas have been ‘recycled’ in the name of popular consumption.

And it’s not so long since the creative community fell in love with an ad for Honda that investigated the idea of perpetual motion...

honda_cog_frames

...only to discover it was directly ‘inspired’ by The way things go, a film by the artists Peter Fischli and David Weiss.

fisch_400

The difficulty with these cases is ascertaining whether something is the same idea that just happened to crop up twice, a well-meaning homage, or a blatant rip-off.

Paula Scher always admitted that her famous Swatch poster was a deliberate nod to Herbert Matter’s iconic poster (but rumour has it that it stopped her being admitted to a famous design body for years because the Swiss board of grandees couldn’t forgive her).

scher_matter

When we presented this idea to Yellow Pages in the nineties for a set of yellow covers (featuring yellow objects) it struck us as a pretty obvious idea, and it ran quite happily for five or six years.

yellow_pages_400

After it launched, it transpired that a previous agency had once presented a cover that never went through that included rubber ducks. Given that we hadn’t been rummaging around under our clients desk for old bits of polyboard, we had never seen it, but we took it seriously enough to check with our lawyers.

Their advice was pretty clear – in this case the ‘idea’ of a rubber duck for Yellow Pages, was inherently unprotectable. That’s one of the oddities of copyright law – pure ideas, per se, can’t be protected. On first reading this can make those of us who trade in ideas a little nervous. But hang on, it gets better. Whilst an idea can’t be protected, the way that idea is carried out can be.

So, sticking with yellow objects, the idea of a banana skin (which we of course presented many times to no avail) cannot be ring-fenced. But the way we might have photographed it - with amped-up yellow photos next to vertical type - could have been.

It often comes down to registration and the issue of the public domain. To translate the lawyer-speak, there are ways to register designs, and in case of conflict it can be an issue if a design has been seen by the general public or not.

So, if you’re designing a logo at the moment that feels a bit familiar, hunt about in the books to check first, then contact a trademark agency to carry out a visual search second. We take this seriously enough now to regularly carry out trademark checks before we show ideas to clients to avoid any potential issues further down the line. Yes, it’s expensive, but cheaper in the long run if something comes out of the woodwork.

This kind of due diligence should make ideas bullet-proof, but things can sometimes sneak through. Our design of a flock of 15 swans for the UK Presidency of Europe (representing the 15 member states) passed all the legal checks but on the day of launch an ultra-right wing anti-Europe think tank claimed the government had stolen their flock of geese.

uk_eu_brolly_400

bruges_400

It transpired that they’d never registered the design, and the last time it had been seen was on a leaflet 14 years previously, but still, it was enough to grab a few pointing scoring headlines. Had it gone further, their complaint would have fallen over a) because they hadn’t protected it and b) fringe meetings of 30 people at party conferences doesn’t count as public domain. And the sheer passage of time can also count against a claim, especially if no longer used, because the rights erode if an idea isn’t being used. Luckily none of the johnson banks team had been teenage right-wing activists with photographic memories. Phew.

Sometimes copyright issues can reach a fairly surreal point. We once contacted the artist Gillian Wearing to see if she wanted to collaborate on a project. We’d always enjoyed her fantastic Signs that say what you want them to say and not Signs that say what someone else wants you to say project where she asked random people to write something on a piece of paper and hold it up.

wearing_400

We wanted to see if she was interested in taking it further for a government project, but she refused, so we changed tack and found a different solution that didn’t infringe her idea.

Wearing’s project is an unusual one, because her idea is itself similar to at least two previous expositions. Maxell famously ran ads for their recording tape that suggested ridiculous lyrics for famous songs (most memorably Desmond Dekker’s The Israelites). This idea was itself based on a famous film shot to accompany Bob Dylan’s iconic Subterranean Homesick Blues, where Dylan laconically held up the lyrics to the song.

So to anyone with even a passing interest in popular culture, Wearing’s idea was beautifully done, but had its own set of precedents that, crucially, had been seen by millions of people.

maxell_400

dylan_400

Not long after we’d contacted Wearing, an ad agency waded straight in and filmed a blatant rip-off for Volkswagen featuring everyday people holding up cards with whatever was on their mind at that time. True to advertising cliché one woman held a card that said ‘sex and chocolate’. Ho ho. Wearing was understandably miffed but would have realized pretty quick that going to court would have a been a 30 grand gamble. Any decent defence lawyer would have dug out Maxell and Dylan, and that could well have been game over.

So where does that place our bunny lovers, kozyndan?

The fact they have indulged in homages of their own (such as this admittedly hilarious adaptation of Hokusai’s classic great wave) doesn’t help, but Hokusai’s classic dates from the first half of the 19th century, and is ingrained in the world’s collective visual memory banks.

hokusai_bunny

Basing your work on bunnies doesn’t mean that you inherently own the right to any artwork involving our furry friends. (Incidentally, copyright inherently runs out after 50 years, so the cynical amongst you reading this could legitimately play fast and loose with a whole host of classic designs from the early fifties and no-one could do much about it).

It gets stickier though, when you see this panorama that Kozyndan produced in 2002, which featuring coloured bunnies wandering about in an urban landscape spookily similar to New York.

whole_pan_1

pan_close_1

Stickier still when it transpires the film’s production company asked to see their work a year ago then never took it further, although this is now being strongly denied. So to return to our banana skin example, you can’t copyright the idea of bunnies in a city. But you can copyright small brightly coloured bunnies jumping about in a monotone New York landscape. You could also argue that they owned the idea of bunnies turning into a wave, give that the Hokusai is now over 150 years old.

In our view, kozyndan have a pretty strong case. Our advice to the agency would have been simple – involve the artists from the outset (as they may have intended to do), make the connection clear and above board, give them a cut. If something’s a homage, own up to it.

As it stands, we’re now being led to believe that the agency and the production company dreamt up the idea in some sort of parallel universe to kozyndan with no knowledge of any of the artists work. Now you can understand that two agencies might both think of yellow rubber ducks for a client called Yellow Pages, but it seems less likely with small coloured bunnies milling about in Manhattan.

One good thing comes out of all of this. At one time, the easy option was to produce ideas that were a little bit familiar, a bit safe, because no-one would get particularly offended. But now it’s easier to protect your work, and easier to air your grievances in cyber-space, it will force agencies and their clients to search for more original ideas. Not to cynically steal other people’s whilst hoping no-one notices.

Back to the top | AddThis