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The YouTube Dilemma


YouTube provides a steady stream of inspiration to advertising creatives, but it also leaves young directors vulnerable to having ideas stolen and agencies open to accusations of plagiarism. How can both directors and agencies protect themselves?

In 1998, director Mehdi Norowzian sued the Irish advertising agency Arks Ltd for copyright infringement. He claimed Arks had copied a substantial part of his short film, Joy, in its hugely successful Anticipation advert for Guinness which featured a man performing a flamboyant dance as he waited for his pint of the black stuff to settle. Norowzian lost, the case setting a precedent over the legal rights of directors and artists when claiming the artistic content of their work had been 'appropriated' by an agency.

The tense question of plagiarism has become a regular part of advertising life ever since. Accusations from artists and directors crop up periodically in the media, where a discussion on their validity will take place before the subject is usually dropped. The agency in question may be left with a minor stain on its integrity but with no major ill-effects to its client relationship or bank balance. The rise of internet sites such as YouTube has made this issue even more pertinent, however. Suddenly a research tool is available to advertising creatives giving access to millions of films and ideas from all over the world, leaving the makers of these films vulnerable to having their ideas stolen.

Unlike the more established artists and directors, who have an army of colleagues and fans to vociferously defend their creative ideas if they suddenly turn up in a TV ad, the users of YouTube are often young filmmakers, usually unrepresented by production companies, and therefore especially vulnerable. The weapon of choice for young directors in such situations has become the online blog. With the mainstream media unlikely to pick up a story about plagiarism from someone unestablished, the blog comments box has become an effective place to air grievances. A recent example of this occurred on the CR Blog, where the posting of a new Sony Bravia ad, featuring a life-size zoetrope, caused an immediate backlash on behalf of a young director, Mark Simon Hewis, with claims that Fallon, the agency behind the spot, had based the commercial on a short film by Hewis. The situation raised a number of questions, about how young directors can protect themselves against their ideas being stolen, but also about the increasing necessity for ad agencies to find ways to defend themselves against accusations of plagiarism.

In the case of the Sony Bravia ad, the similarities between the film by Hewis and the ad by Fallon are minimal beyond the fact that both rest on the concept of a life-size zoetrope. Hewis' film is a poetic rendition of a man's life story, whereas the Bravia ad sees footballer Kaka showing off his ball skills. Yet Hewis had been approached by RSA, the production company that worked on the ad, with a view to working on an 'up and coming advert opportunity' and was asked to sign a non-disclosure agreement on behalf of Fallon which mentioned Sony. When the Sony ad came out, and Hewis had heard nothing more from RSA or Fallon, colleagues leapt to conclusions and to his defence via the CR Blog.

"I got a sense the Sony ad was maybe influenced by Mark's film," says Katie Daniels, a freelance producer who worked on the film and contacted CR at the time of the blog story on the Bravia spot. "Obviously the idea of a zoetrope is not new, but from the atmosphere I had a sense that they'd watched the film. But it wouldn't be so grating if they hadn't got in touch and then we'd not heard from them again, that was bad etiquette. Directors are creating these films as showpieces for little or no money in the hope they'll get commercial work."

Following the furore on the blog, Fallon explained that the contact had been made with Hewis in relation to a different strand of the project for Sony, and that the production of the Bravia-drome ad was already well underway by the time this occurred. The agency is also categorical in its assertion that it never takes its ideas from outside sources. "We would be doing ourselves a huge disservice if we were found to be deliberately taking an idea from elsewhere," says Fallon partner Chris Willingham. "That's so fundamental to our work, and why clients choose us."

This is not the first time that Fallon has been under fire for allegedly being influenced by the work of others, however. When the agency's Play Doh ad for Sony was released in 2007, the artists Kozyndan complained on numerous blogs, including CR's, about the commercial's similarity to an artwork by the duo which features multi-coloured bunnies hopping through a cityscape. In this instance, Passion Pictures, the production company for the ad, had been in contact with Kozyndan in the past but nothing had come of it. Both Passion Pictures and Fallon firmly deny that the idea was taken from Kozyndan's work.

It's easy to assume here that the advertising agency is always in the wrong. Certainly there are plenty of famous examples where ideas from artists appear to have been directly adapted for ad campaigns, with seemingly little concern for the source of the work. In 2003, Wieden + Kennedy's ad Cog was criticised in the media for its similarity to art film Der Lauf Der Dinge by Fischli & Weiss, and in 1998 artist Gillian Wearing complained about the likeness between her series of photographs which depict people holding hand-written signs, and a VW campaign by BMP DDB. More recently, a John Lewis campaign by Lowe featured shadow sculptures that bore a striking resemblance to artworks by Tim Noble & Sue Webster. At the time, Ed Morris, executive creative director at Lowe, acknowledged that the artists' work was mentioned when discussing the concept of the ad, but that the core idea was already on the table before it came up.

Which brings us to the thorny issue of whether a commercial has only been 'inspired' by another piece of work, consciously or unconsciously, or whether an idea has been deliberately lifted. This is naturally a blurred area, especially as creatives, like the rest of us, are constantly bombarded with imagery. In the continuous quest to come up with new ideas for ads, it is perhaps inevitable that some of this visual input might be unintentionally recycled. This might sound like woolly excuse making, but it is far from unusual. Writing on this issue on Design Observer, graphic designer Michael Bierut recounted how he'd realised that a poster he created in 2005 was remarkably similar to a piece from 1975 by one of his favourite designers, Willi Kunz. For Bierut the replication was made unconsciously, and made him worry. "I don't claim to have a photographic memory, but my mind is stuffed full of graphic design, graphic design done by other people," he wrote. "How can I be sure that any idea that comes out of that same mind is absolutely my own?"

Acknowledgments such as Bierut's are perhaps unlikely to ever be heard from an ad agency, however. And often, of course, advertising is consciously influenced by others' work. In these instances a surprising trend is emerging, where agencies are starting to give credit to their sources. Fans of music videos may have been surprised to see a recent Visa ad from Saatchi & Saatchi, which featured a man on crutches dancing through a city. A very similar performance had been seen recently in a video for dance music act RJD2, by director Joey Garfield, and it would be easy to conclude Saatchis had simply lifted the idea for their ad. This was true, but it turned out that the agency had also picked up the performer and director, along with the idea.

"We do the Saatchi & Saatchi new directors' showcase and trawl the internet looking for interesting stuff to put forward for this," explains creative director Kate Stanners. "We found this piece of work by Joey Garfield and thought it would be amazing for Visa. We wanted Joey to be acknowledged in the showcase for having done the piece of film, but equally we wanted to approach him for Visa. We wouldn't have pursued doing the ad if it wasn't with Joey and Bill [Shannon, the performer in the spot], and it ended up being Joey's first commercial." Stanners acknowledged that it would probably have been easier just to approach Shannon for the ad and work with a more established director, but felt it was important to work with Garfield too.

Another music video that was adapted for advertising purposes recently was Roel Wouters' promo Grip for zZz. Distinctive for its use of trampolines, the video had done the rounds of the industry's media. When he was approached by ad agency Krow Communications to replicate the ad for a Fiat Grande Punto ad, however, Wouters was not keen. At this juncture, an agency might typically have gone off and made their own version anyway, but Krow went out of its way to acknowledge the influence of Wouters' work and paid him a license fee. This then freed them up to replicate the promo without fear, which they did, to a degree that surprised even Wouters. "I never thought they would copy it," he told CR at the time. "But I think it is quite honest, they're not acting as if they've come up with the idea themselves. Making the decision to do such an exact copy is weird but quite strong I think, it gives the feeling of a sincere tribute."

Even those outside of the industry are beginning to see credit given to their work. In the press materials accompanying the release of a recent Aero ad from JWT London (shown top), there was an acknowledgement that the spot had been inspired by a film on YouTube. Both films show a skateboarder plowing through balloons in a skate park. JWT creative director Russell Ramsay recognises that YouTube has changed the research process for agencies. "All these references are instantly accessible now, which they didn't use to be," he says. "There are so many ads that have been influenced by films and by art. But now the influences can be instantly found, whereas they couldn't be in the past…. Part of the skill is matching these ideas to a brand. Advertising does use these things to that end, and always has done."

Despite seeing the similarities between the two films, Ramsay still feels they are essentially different. "We thought of the YouTube film as the recording of an event," he says. "We wanted to get the best skateboarder – if you watch that film, it's not the best performance of it…. We did acknowledge it in the end, but I think we've done enough to it for people to not be that outraged by it. But people have to make up their own minds."

This nod to the YouTube filmmaker from JWT, however grudgingly given, does seem a step in the right direction, although the next logical move, where filmmakers receive renumeration for their ideas, seems unlikely to occur. Ideas cannot be copyrighted, and, as the Norowzian case proved, using the law to prove plagiarism of imagery can be fraught with difficulty, and expensive. Furthermore, despite the good example set by Krow with Wouters, this still doesn't get around the issue of what an agency does if an artist or director says a flat 'no' to having any involvement with the commercial. All too often, the idea still gets made, and there is little that the originator of the idea can do about it. In this sense, we are perhaps no further on than we were ten years ago. However, with the internet providing an easy outlet for filmmakers to complain when they feel their ideas have been pinched, a new wave of consciousness does seem to be beginning to sweep over ad agencies. "I think ad creatives are very conscious of the notion of originality," says Kate Stanners in their defence, "because part of your job is to come up with original ideas. There is a respect for ideas and there is a respect for the originators of ideas."

To see many of the pieces mentioned in this article, see the original post here.

Provided by Creative Review—The World's Leading Monthly Magazine for Visual Communication

Eliza Williams is staff writer of Creative Review.

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