Is the Internet Killing Advertising Creativity?

It's Legal to Share an Idea, but Not the Way It's Creatively Expressed

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As an advertising lawyer who previews content on a daily basis, more than ever I find myself having to ask a creative, "What was your inspiration for this?" Then comes some professional tap dancing around the question and serious arm twisting, until we're both lying sweaty and breathless in a heap on the floor (admittedly not a pretty picture), at which point I unearth the inevitable copyright-protected source -- the You Tube video, Facebook page or Twitter post -- from which the concept originated.

While I try to savor the victory, it is short-lived, because I then face the unpleasant task of telling the person that the concept needs to be either changed or scrapped, or that he needs to get permission to use it. None of this anyone wants to hear from legal, particularly given that "we've already sold it to the client" and "it's shipping tomorrow."

Advertising always has, and probably always will use others' works as inspiration -- at least some of the time. And with good reason: people often identify best with that which is most familiar. I'm old enough to remember the tradition of RIP-O-MATIC, where people in creative ripped off ads to piece together their own proposals, so I can't argue that this is the dawn of a new age. And I'm certainly not trying to indict the entire advertising community, (which is nice enough to allow me to make a living).

But without question advances in digital technology have changed how creative is developed. Millions of creative works are instantly accessible at the flick of a finger. Pair that with a Napster-raised creative force that sometimes doesn't get that it's not just a cat playing piano or just an orange that 's annoying, it's work that somebody created and owns; a client base that often believes that any concept involving social media is pure gold; and a public that seemingly can't get enough of Internet memes . All this, and an agency has plenty to worry about.

What do we do? Break a few myths to start:

Myth: Because it's been published on the internet, it's free to use.
Truth: Almost everything on the Internet is probably owned by someone, with very few exceptions, and your republishing of it is probably an infringement.

Myth: You can copy someone else's work, as long as you change 30% of it.
Truth: While ideas generally aren't protected under copyright law, if you use another's work as a starting point, even changing it 30% may not be enough to avoid infringement.

Myth: They do it on "Saturday Night Live," so we can do it too.
Truth: Sketches on "Saturday Night Live" are highly protected by the First Amendment as pure "entertainment" vehicles. Your advertising on the other hand, no matter how entertaining, won't likely get the same kind of protection because it's "commercial".

Myth: The lawyer said it's legal -- so there's no risk.
Truth: Even if you push your lawyer into giving you the green light, he or she can't prevent an overzealous plaintiff from filing suit against your company. And even if you are legally correct, the other side won't be paying your hefty legal fees or compensating you for the time you spend knee-deep in litigation. Sometimes even when you win, you lose.

Myth: We'll just pull it if we get caught.
Truth: "Just pulling it" isn't as simple as it seems. What if there is nothing to replace the ad? Who's going to pay for the creation of new work? Is your client going to be happy with ending a successful campaign midstream?

I'm not advocating for the end of internet surfing. It does spark ideas, and not all works inspired by others are illegal. We saw this play out when CBS, the owner of the "Big Brother" TV show, was unsuccessful in its case to stop ABC from airing the similar show "Glass Houses" (both shows had people living in a house, monitored by cameras, with contestants gradually eliminated until there was a prize winner). The judge explained, "There is a setting, which is hardly novel, and some general ideas regarding the structure of the show, but little elseā€¦. reality, it turns out, is hard to copy."

What should you do if you feel tempted to use another's work as inspiration?

Tip #1: If the concept is questionable, run it by legal before you show it to the client.

Tip #2: Ideas aren't protected under copyright law, so make sure that you are sharing only the idea -- not the way that idea was creatively expressed. For any similarities in idea or expression, prove that they are generic by finding at least five other examples for your file before using it.

Tip #3: Don't rely too heavily on Tip #2. Even if you can find examples of others using the same idea and/or expressive element, the practical advice is to stay away from those properties whose owners are extremely litigious and/or have a big investment to protect. Is the risk really worth it?

Tip #4: Don't reference your points of inspiration in your storyboards, video files or any other tangible documentation. Enough said.

Tip #5: When all else fails, consider asking for permission. But be prepared -- if they say no, don't get back to you, or demand big money, you'll likely have to abandon the concept.

Brian Heidelberger is partner and chair, Advertising, Marketing and Entertainment Law Practice of Winston & Strawn. He wrote this piece with the help of associate Monique Bhargava, and he tweets at @winstonadvlaw..
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