Can copyright infringement actually boost your brand’s profile? We think so.

#FreeCuthbert! Who would have thought we would all be getting so worked up about a cake in the shape of a caterpillar?!  But that’s exactly what’s happening.

The bottom line: Cuthbert just looks too similar to Colin, so Marks & Spencer are taking legal action against Aldi and accusing them of ‘riding on the coat-tails’ of their reputation. It finally looks like Aldi has got into trouble over its unapologetic copies of famous products, but rather than running scared,  they decided to take a humorous approach to the lawsuit with a series of hilarious tweets:

“This is not just any court case, this is…. #FreeCuthbert”

“Cuthbert has been found GUILTY… ..of being delicious.”

@JudgeRinderTV How’s your diary looking? Asking for a friend. #FreeCuthbert

But while this humorous and somewhat cheeky response has kept us all smiling, it does raise an important issue.

Whether it’s Starbucks trying to get a logo banned because it looks like one they used 10 years ago, supermarket own-brands looking suspiciously similar to well-known products or McDonalds attempting to shut down a Malaysian restaurant called McCurry, what’s the best way to tackle copyright infringement?  We take a look.

So, how does copyright work?

The internet can be great, but it does mean we all have access to oodles of content which is super easy to incorporate into our own work, but just because it’s easy, doesn’t mean it’s right.

As soon as anyone takes a photo, writes some copy, draws a picture or starts composing their next number one hit, they automatically get copyright protection. They don’t even need to file special paperwork or add © to any of their work, because they are already protected as the original creator of that work.

However, just because work is copyrighted doesn’t mean it can’t be used by others as long as it meets the criteria of ‘fair use’.  This means you can use statistics from another organisation’s research in a blog post, use a product photo from a company’s website if you are writing a product review or use an image for the purposes of news reporting. The key thing to remember is to ensure your usage doesn’t negatively impact on the market for the original work and that you only copy what is reasonable.

But be warned, as there are no exact guidelines on ‘fair use’, it always comes down to degree and interpretation, as shown in the case of Richard Prince, a well-known appropriation artist.

He appropriated 41 images from a photography book by Patrick Cariou and transformed them to create new meaning. Prince claimed ‘fair use’ but a judge found that the changes weren’t significant enough to constitute a change in meaning. This ruling was then overturned on appeal – a prime example of how arbitrary ‘fair use’ can be.

Should you get the lawyers involved?

So, what do you do if you spot a copyright infringement? Well, the most obvious course of action is to take legal action. And this is exactly what countless firms have done, including Gucci who had a 9 year battle with Guest over using similar logos, and Under Armour who sued Nike over their advertising slogan.

And then, of course, there was KFC who decided to take on the Tan Hill Inn in the Yorkshire Dales! They accused the pub of infringing on their trademark by daring to use ‘Family Feast’ on their Christmas Day menu. Despite the fact the festive meal didn’t feature chicken, KFC’s lawyers asked the pub to stop using ‘Family Feast’ as they had registered the wording as a trademark. Just hours after sending the first letter, common sense prevailed and KFC backed down.

And that’s the thing. Do you really need to get the lawyers involved each and every time? In this case if someone had just taken the time to find out a bit more about the pub, rather than panicking when they saw their trademark on the online menu, they would have realised the pub wasn’t trying to trade off the KFC brand.

Yes, sending a cease and desist letter is easy, but get all the facts first. And bear in mind, if you involve lawyers, the only people who really win are the lawyers themselves. Look at Gucci who after their 9 year battle hoped for $221m in damages, but only got $4.7m! That probably didn’t even cover the legal bill!

Of course, there are times when the only time people will listen is when you involve lawyers. When New English Teas used an image of a red London bus driving across a monochrome Westminster Bridge, it bore an uncanny resemblance to a photo by a souvenir company. They were taken to court, and despite arguing that another company shouldn’t be able to claim a monopoly over a particular type of digital enhancement, they lost the case. The outcome might have been different, but for the fact, the infringer definitely knew about the original image, as he’d already lost a case involving the same image!

Although the ruling remains controversial,  it highlights another important issue  – always keep up to date with changes to copyright law.

Is adopting a light-hearted approach more effective?

Sometimes the best response to copyright infringement is just to have a bit of fun with it!  And Aldi’s light-hearted response is a masterclass in how to do this. From #FreeCuthbet to asking M&S to ‘take a stand against caterpillar cruelty’, they have definitely poked fun at the whole thing, even though it’s them being sued!

And maybe that’s what brands should do. Rather than going in all guns blazing and being accused of ‘trademark bullying’, which inevitably happens if you are a multi-national going after a small business, copyright infringement should be used as an opportunity to boost your brand’s profile.

That’s exactly what Netflix did, and it worked a treat.  When an unauthorised ‘Stranger Things’ pop up bar opened in Chicago, Netflix sent them a cease and desist letter. But this letter appealed to the owners’ appreciation of Stranger Things and included lots of references to  the show in the letter. In fact, rather than threatening them with lawyers, they were told the ‘Demogorgon is not always as forgiving.’ The result – Netflix received tons of praise on social media for how they handled the situation.

And, of course, there is the exceedingly polite letter sent on behalf of Jack Daniel’s when a new book cover bore a striking resemblance to the label of Jack Daniel’s Tennessee Whiskey. Rather than demanding the book was taken off the shelf, they asked the author to change the cover, but only when it was reprinted and even offered to help pay the cost for a new design!

A great example of how you don’t need to be a bully to get the result you want.

And then of course, there are times when potential copyright infringement results in unexpected win-win partnerships.

When BrewDog spotted an Aldi own-brand looking suspiciously like the brewery’s flagship Punk IPA, they created a spoof ‘Yaldi IPA’ which played on Aldi’s own distinctive logo, posted it on social media and joked about Aldi stocking it in their stores.  Aldi responded by saying they would rather it was called ‘ALD IPA’ but would love to talk.

One renamed beer later and BrewDog’s spoof beer was being stocked at Aldi stores across the UK. But the partnership doesn’t end there as both companies agreed to plant a tree for

every case sold. Amazing what great things can happen if you approach copyright problems without the lawyers in tow!

Want original creative? Give us a call

As a design agency, we are well aware of all the issues of copyright and whether we are creating new slogans or visuals always do a thorough check to ensure we aren’t inadvertently using someone else’s creative. Yes, copying someone else’s ideas or thoughts may be the sincerest form of flattery, but personally we just think it’s a bit lazy and, for us, original ideas win every time.

If you have a campaign you are planning or are thinking about finding a new creative agency, give us a call. We care about our clients’ success and promise to deliver the original creative you deserve.