French film maker Luc Besson was not impressed with advertising for French telecoms company SFR. There were noticeable similarities with his film The Fifth Element. We report on the ensuing case at
Topic: "Inspired Advertising"
Who: Gaumont Productions, Luc Besson, Publicis Conseil and SFR
When: October 2004
The French ad agency Publicis Conseil was fined a total of €2.75 million following claims of plagiarism by filmmaker Luc Besson and his production company Gaumont.
The offending material was an advertising campaign for French mobile phone company SFR and starred the actress Milla Jovovich. So far so good, but Milla appeared in the ad dressed in a costume very similar to the one she had worn when playing the character Leeloo in the sci-fi movie "The Fifth Element", directed by Besson and produced by his company Gaumont. She also sported pretty much the same striking red hair style.
Besson first encountered the ad on a giant billboard as he passed it on his motorbike. What might have particularly irritated him was the fact that Jovovich was his ex-wife. The campaign included TV executions also, which Besson suggested used sets, which were very similar to those in his movie. The agency and the advertiser responsible for the campaign defended their position and expressed concern at the implications of the decision against them. Besson said that he would give his share of the damages to charity.
Why this matters:
The French law of plagiarism is different to that in the UK. Here, the Ofcom code applicable to TV advertising is not terribly different to the position at law. This means that for Besson or his production company to succeed in the UK on similar facts they would have to show either passing off or copyright infringement. In copyright, it is possible that copyright would protect a particular film set or a particular distinctive costume. A case in passing off might have a chance if it could be shown that viewers were confused into believing the campaign was the result of a commercial tie up between SFR and the moviemakers.
On both fronts a UK case on the part of Besson and his company would have been by no means open and shut, but it was clearly never going to go down well with the director and producer of a movie to feature, without their consent, one of its leading actresses (and the director's ex wife to boot) in a costume and hairstyle that were very similar to how she had appeared in the film.