Yves Saint Laurent have sued for copyright infringement over the recent Newcastle Brown advertisement parodying the notorious Sophie Dahl/Opium ad, but will they win in court?
Topic: Copyright
Who: Scottish Courage and Yves Saint Laurent
When: December 2001
Where: North East England
What Happened:
In September 2001, Scottish Courage launched an advertising campaign for Newcastle Brown Ale. It was a clear parody of the infamous Yves Saint Laurent "Opium" perfume advertisement featuring model Sophie Dahl wearing nothing but jewellery and stilettos. Instead of Ms Dahl, the Newcastle Brown advertisement featured a supine, unshaven man in overalls and boots clutching a bottle of "Broon." His pose evinced a similar state of ecstasy to Ms Dahl's in the advertisement which precipitated a thousand complaints to the ASA and a "complaint upheld" finding on grounds that it was degrading to women. Yves Saint Laurent was evidently not impressed and issued copyright infringement proceedings against Scottish Courage and Circus, the agency which developed the Newcastle Brown ad in conjunction with the brewer. Undaunted, in December 2001 Scottish Courage announced that it would be extending the campaign in the North East during the Christmas and New Year period.
Why This Matters:
“Ad parodies ad” has been a recurring theme in the annals of advertising tomfoolery. Mostly “it’s the best form of flattery” is the extent of the parodied advertiser’s response and all have a brief chuckle and move on. From time to time, however, there’s sense of humour failure and litigation ensues, as here, with brand owner and agency embroiled.
What will YSL be suing for? Copyright infringement is a racing certainty, with perhaps “passing off” as another string to the perfumier’s bow. So far as copyright is concerned, "parody" is not a defence. As in all copyright infringement cases, the test will be whether the Newcastle Brown execution amounts to a copy of a “substantial part” of the perfume ad. One of Scottish Courage’s arguments might be that although the advertisement is clearly inspired by the Opium image, it benefits from sufficient of its own creativity and originality to escape infringement. To make out a case in "passing off", YSL would have to establish that the image which inspired the beer advertisement was distinctive of Yves Saint Laurent perfumes and those products alone and that the Scottish Courage execution amounted to a form of "misrepresentation" likely to cause YSL damage.
Marketinglaw's verdict? A successful defence by Scottish Courage on both counts, the court following its tradition of being distinctly sniffy about being dragged into advertising disputes and also being instinctively reluctant to be overly protective towards such an intentionally controversial image.
Why This Matters:
Clearly the ideal solution here would have been for the brewer to get the prior consent of YSL. Without that consent, advertiser and agency must have been advised that there were legal risks, although one cannot say of course what the advised level of risk was. Whatever the advice, the brewer evidently took the bold decision to proceed, and this is fine so long as advertiser and agency are alive to what might happen. Things are not so good for advertiser or agency of course if one or the other is not made aware of the potential downside before launch! So we will watch with interest how these proceedings develop, but whatever the final result (and a quiet out of court settlement has to be a strong bet once tempers have cooled), copy writers and legal commentators, as well as lovers of “inspired” advertising in all its forms, have to be grateful that Scottish Courage took the plunge!
