Freelance director Paul Papanek–whose Coca-Cola spec commercials “Passport” and “Railroad” have gained exposure on his own and other industry Web sites–continues to showcase those pieces, which contain the Coke logo, after reaching an agreement with the soft drink maker. The spot fare can appear as is, with one prerequisite: The ads must be accompanied by a disclaimer specifying that the work is spec and that the director is not affiliated with The Coca-Cola Company. The disclaimer, which is now up on Papanek’s site (www.paulpap.com), further notes that “Coca-Cola, Coke and the Contour Bottle Design and the Dynamic Ribbon are registered trademarks of The Coca-Cola Company.”
The use of the disclaimer settles a disagreement which surfaced several months ago, even though the humorous spec spots are some three years old. Coca-Cola’s legal department sent a letter to the Los Angeles-based Papanek this past May, asking him to stop using the Coke logo and to remove “Passport” and “Railroad” from his site and to instruct other industry sites to do the same. The letter contended that Papanek had no legal right to use the Coca-Cola trademark, which is wholly the property of The Coca-Cola Company.
When Papanek did not initially reply, follow-up correspondence from Coke in June reiterated the company’s position. In August, Papanek sent a written response, which explained that spec commercials are widely accepted in the industry as a valid form of filmmaking, and how it’s important that these spots appear as realistic as possible so as to help showcase the talents of those who created them. He wrote that there has been no attempt to make people believe that “Passport” and “Railroad” are real commercials produced by Coca-Cola. Furthermore, he pointed out that the spots portray Coke in a positive manner. The director concluded that he would not stop using the two spec spots to promote himself as a commercial director.
Also in August, Papanek received a letter from outside intellectual property counsel for Coca-Cola, which urged Papanek to comply with Coke’s wishes, claiming that his use of the logo was in violation of the Lanham Act, federal and state dilution laws and other laws which protect Coca-Cola trademarks against unauthorized use. This letter claimed that such violations may entitle Coke to injunctive relief and monetary damages, including punitive damages, as well as the recovery of its attorney’s fees and court costs.
However, the situation was resolved, said Papanek, when he heard via phone from a Coke staff attorney, who said that the company would be satisfied–and that the matter could be amicably settled–with the inclusion of the aforementioned disclaimer. Coke subsequently sent him a copy of the proper disclaimer language.
OTHER CONSIDERATIONS
Clearly, corporations have the right to protect their logos and brands. Yet even with the letter of the law behind those whose trademark has allegedly been infringed upon or violated, there is some debate as to how litigation would play out relative to spec work, particularly when considering if such legal action is worth it in the big picture.
In the case of Papanek’s two spec spots, they both cast Coca-Cola in a positive light. A stronger case could be made against spec work that places the “client” product in a negative scenario. Earlier this year, for example, a spec spot from a U.K.-based creative team depicted a suicide car bombing which deployed a Volkswagen. At one point, Volkswagen had planned to sue the creators of the spec piece, but ultimately decided against that course of action.
Prior to the disclaimer settlement being reached between Coke and Papanek, SHOOT talked with director/executive producer Dina Mande and exec producer Steven Gould about the Coca-Cola spec situation. Mande is founder of and Gould is a production advisor to Group101Spots, a prominent industry program in which aspiring directors advance their careers through the making of spec commercials. (Mande and Gould also recently launched Burbank-based production house Subliminal.)
“An accepted point of entry for talent in this business has always been to do speculative work–which you want to make look as realistic as possible,” related Gould. “The work isn’t viable if it doesn’t feel real.”
Mande noted that to put a chilling effect on spec spot creators would be detrimental to the business. “It’s so important to bring new creative talent into the industry–and this isn’t just about directors. Think about the scripts from agency writers that get passed over for different reasons. Agency creatives would still love for their ideas to see the light of day. We tap into those scripts [at Group101]. Getting this work made helps these agency creatives with their reels as well.”
