When developing advertising concepts, creatives get their inspiration from many sources. But when the inspiration comes from other creative works, such as a preexisting photograph or television show, there’s a risk that you may infringe upon the original creator’s rights. A recent decision by a federal court in New York illustrates just how easy it is to run into trouble.
In 1999, photographer Jonathan Mannion took a photograph of basketball star Kevin Garnett, which was published in SLAM, a basketball magazine. The photograph depicts Garnett, who is black, wearing a white T-shirt, white pants, and diamond jewelry, against a backdrop of clouds and blue sky. A few years later, Carol H. Williams Advertising (“Williams”) developed an outdoor concept for Coors Light beer. Williams prepared a comp of the outdoor concept, and included a cropped and manipulated version of the Garnett photograph, along with the words “Iced Out” and a picture of a can of the beer. Williams sent out the comp to various photographers (including Mannion), but ended up not hiring Mannion to do the shoot. The new photograph — which was included in a billboard — was not identical to the Mannion photo, but did depict a black man, in a similar pose, wearing a white T-shirt, white pants, and jewelry, against a cloudy backdrop.
After Mannion saw the photograph, he sued. After reviewing both photographs, the federal court decided that it is up to the jury to decide whether there is copyright infringement. (These facts were taken from the judge’s decision.) What could the agency have done to help avoid this? Here are some suggestions.
Separate the inspiration from the execution
In order to have copyright infringement, there has to be copying. Therefore, even if you’ve been influenced by a pre-existing work, don’t show it to the people who will be executing the idea. Don’t even tell them about it. Think how difficult it must be for a photographer or a director to create something new when he or she has seen the original work and knows, specifically, down to every detail, what the client likes. Even when the photographer or director consciously tries not to copy the work, unintentional copying may still occur.
Separate the idea from the expression
Copyright does not protect ideas; it only protects the particular original creative expression of those ideas. As I’ve said before in this column, it’s not easy to draw the line between the “idea” for a concept, and the specific “expression.” When you’re explaining to a director or a photographer what you’re looking for, your goal should be to reduce the inspiration to just a core concept. The more room you give to the director or photographer to execute the idea in his or her own way, the more likely you are to create something that doesn’t infringe upon the original creator’s rights. On the other hand, when the final advertising uses the specific executional details from the original work — subject matter, composition, pose, clothing, props, lighting, shadows, background, etc. — -you’re more likely to have a problem.
Think twice before you go with someone else
If you really want to aggravate a photographer, send the photographer a comp that includes his or her work, so that the photographer can bid on the project, and then hire someone else to do it. If you love a specific photograph, it’s probably going to cost a lot less to hire that photographer then it will cost to defend a copyright lawsuit. And if you just can’t afford the photographer, and if the clients are not going to be happy unless they get the photo that they saw in the comp, then you may just need to come up with a new idea, and go in a completely different direction.
This column presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
Jeffrey A. Greenbaum ESQ. is a partner at Frankfurt Kurnit Klein & Selz, New York. If you have a suggestion for a topic to be covered in a future column, send an e-mail to jagreenbaum@fkks.com
