Viral cow video copied in ad campaign, but is it copyright infringement?

Is this copyright infringement?

There is an interesting copyright case brewing online. Cyriak Harris is a British freelance video animator, famous for creating surreal videos involving cute animals that are then transformed in often nightmarish ways (my favourite is Kitty City). In 2010 he produced a video of dancing cows that went viral (as of writing, the video had 37 million views). Here is the original video (warning to arachnophobia sufferers).

An Argentinian VFX studio delightfully named Juan Solo created a video for McDonald’s and published it on Vimeo and Facebook (both have now been removed). This video has a striking similarity to Cyriak’s cow video, it has a similar type of arrangement, grass background, with dancing and nodding cows almost in unison to the original. At the time of writing, I cannot find the allegedly infringing video anywhere online, so it is difficult to compare both frame by frame.

A representative of Juan Solo posted in an online forum a link to two adverts they had created, one was the cow video for McDonald’s, and one was for AllState, featuring an octopus. , The forum is dedicated to discussing video editing software, and browsing through the threads it seems evident that a large part of the discussion is about users and agencies showcasing their creations. The discussion took a normal direction, mostly other users asking technical questions and congratulating the creators for the good work, that until someone remarked that the video reminded them of Cyriak’s cows. Leandoperouzo answered:

“Actually Cyriak was the reference for this Spot. The director and I wanted to go a bit more realistic but the client loved the ref.”

Then all hell breaks loose. Cyriak was tipped about the video on Twitter, he then posted a gif of his video and the McDonalds advert (pictured above), saying: “Wonder how much @McDonalds paid someone to copy my video. I didn’t even get paid to make the original”.

Cyriak commented in an interview to The Independent where he comments that plagiarism in the ad industry is a problem. According to McDonald’s, the video was commissioned by Brazilian ad agency DPZ&T for Arcos Dorados, the McDonald’s Latin America franchise.

It has been interesting reading about the case online, as almost everyone on Cyriak’s Twitter thread immediately assumed that this is copyright infringement, urging him to sue. But the case may not be as straightforward as it appears, and much would depend on complex legal issues.

The video was produced by an Argentinian firm for a Brazilian ad agency for a corporate client based in Argentina. Because Cyriak is a British citizen, it would be expensive to sue in Argentina or Brazil, so he would want to sue McDonald’s for copyright infringement in the UK, but this would depend on corporate structures, and whether or not it is possible to sue a local subsidiary for actions committed by another one. This is a fiendishly complex legal area, and the answer depends on many factors. There are precedents for multinational corporations being sued in their home jurisdiction for actions performed by subsidiaries (see Akpan v Shell), but I have to admit that I am not too familiar with cases of a franchise being sued by the actions of another franchise located in another country, and this is not my area of law (please leave a comment if you know the answer).

There may also be a situation in which all liability arising from possible copyright infringement in this case would fall solely on the ad agency, I would be surprised if their contract between DPZ&T and Arcos Dorados did not contain some sort of clause dealing with liability for copyright infringement.

Assuming that Cyriak could sue McDonald’s in the UK, the question remains as to whether the video constitutes copyright infringement. Surprisingly, the answer is not too clear because at the moment we cannot compare both videos. The question rests on two issues: does Cyriak’s cow video have copyright? And if so, is the copying substantial? Both are surprisingly difficult questions to answer.

1. Does the video have copyright?

It may seem clear that the Cyriak’s cow video is protected by copyright, but there is some case law that may question such an assumption. This is the case of  Norowzian v Arks, (excellent case note by Jane Lambert here) in which Mr Norowzian created a short video of a man dancing, which was edited in such a manner as to portray movements that are not possible in nature. Arks is an ad agency that produced a beer commercial  for Guinness using a similar technique. Norowzian sued Arks for copyright infringement over the performance recorded in the video. This is very relevant, because Arks had clearly been inspired by Norowzian’s video, but it did not copy it directly. Because copyright protects the expression of an idea, and not an idea itself, Norowzian could not claim copying of the film itself, so he could only claim copyright infringement of a performance of a dramatic work. This was vital for the decision, as the judge came to the conclusion that this performance relied on the editing to subsist, and therefore was not a dramatic work as it could not be performed in real life. This because “the major part of the effect of the film is the “quirky” or surreal effect produced by the editing techniques used”. This is quite reminiscent of Cyriak’s video. The case was appealed, and while the Court of Appeal decided that a film can be a dramatic work, and also that a work can be both protected by copyright as a film and as a dramatic work, Mr Norowzian’s work had not been copied in a substantial part, so there was no copyright infringement.

Applying this case to the current allegations of infringement, there are lots of similarities between both circumstances. My opinion is that Cyriak’s video is protected by copyright as a film, but not as a dramatic work.

2. Does the McDonald’s ad copy a substantial part of the work?

This is really difficult to ascertain at the moment because we do not have access to the ad other than the gif animation shown above. Just by what is portrayed in that moving image, one could argue that they are very similar, and this is not helped by the admission of the spot’s creator that they had used Cyriak’s cows as “reference”. But does the video diverge at some point? It would appear so from the same forum thread, where one person asks Juan Solo about “the chocolates and ice cream in the McD commercial”. It would appear that the ad contains a strong divergence after the initial reference.

Furthermore, the video is not copied, as is the case with Norowzian v Arks. In that decision, the Court ruled that “the highest it can be put in favour of the claimant is that there is a striking similarity between the filming and editing styles and techniques used by the respective directors of the two films. But no copyright subsists in mere style or technique.”

A more favourable case for Cyriak is Temple Island Collection Ltd v New English Teas, where a tea company used in an ad the similar setting of an iconic souvenir picture featuring a red bus in front of Westminster. In this case, there is no straight copying, but it is evident that both images are very similar.

While this case involves photographs, and there may be an argument that these present their own challenges, there are some lessons to be learned here about what is considered “substantial” copying. Birss QC alleges that there is no need for the alleged infringing work to be a facsimile of the original. The judge had to analyse the elements present in both pictures, such as the black and white background, the buildings, the angle, the red bus, etc. Birss QC found that “the common elements between the defendants’ work and the claimant’s work are causally related. In other words, they have been copied. The claimant won the case and the ad was considered infringing.

It would be possible to make an analogy with Cyriak’s video. The elements in both the original and the ad are very similar, the cows dancing and nodding, the green grass, and the synchronized movement — although this could have been done by editing the gif at a later time. But there are several different elements:  the colour of the cows, the number of cows, the angle, the absence of sky in one spot, and Cyriak’s video scrolls horizontally, while the ad is static. Without being able to compare both spots at this moment, it is difficult to know just how similar they really are. I will say that it could go either way, and it may really depend on the importance given to each of the common elements on each video.

Concluding

It is tempting to assume that there is infringement. Reading through the Cyriak’s Twitter feed, it’s evident that most respondents have already made up their minds. Everyone hates McDonald’s after all, right? Here’s a clear-cut case of a greedy corporate behemoth stomping on the little guy. I cannot agree with that interpretation for the reasons cited above. While I believe that Cyriak would have a strong case, it would not be as clear cut as it may appear, and it would almost definitely not be against McDonald’s, but rather against the ad agency.

We’ll have to see if this case develops beyond a mere Internet outrage story.

(Thanks to Mazz for the heads up).