Nando’s Australia has been forced to pull down a tactical social media post after using an unauthorised version of a copyrighted image of the brawl between James Packer and David Gyngell.
The brand posted the tactical ad this morning, with their own spin on Sunday’s events with the text reading: “There was only one piece of Nando’s chicken left & we were both quite hungry at the time”.
Whilst heavily watermarked versions of the images, bought exclusively by News Cop for a reported $210,000, were being widely circulated by media outlets and social media owners yesterday Nando’s used pictures from the front pages of this morning’s News Corp papers which did not carry any watermarks, without the permission of any of the rights holders.
The posting was pulled from Facebook and Twtitter after a complaint to the chicken chain by agency Media Mode, and has since reworked its idea, updating the post with one featuring only text alluding to the incident.
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The re-worked tactical post
Nando’s Australia PR manager Jude Leon told Mumbrella: “Nando’s is well known for its topical advertising and we like to be quick and responsive to what’s happening in popular culture.
“The Packer Gyngell altercation is a great opportunity for us to have a bit of fun, but we realised once our Facebook post starting getting a lot of attention, that we needed to make some tweaks and use a different image.”
Media Mode co-director Sarah-Jo McKay told Mumbrella they had spoken directly with Nando’s PR manager “and insisted, as the agent for copyright owners, that the image be removed immediately from all online platforms”.
Rebecca Mason, a solicitor with VM Solicitors, said the brand’s use of the image was a breach of the Copyright Act, explaining it would be up to News Corp as the owners of the images to sue for infringement and prove damages.
An example of the watermarked images released yesterday by News Corp
But as the original post was taken down relatively quickly, Mason said it would be up to News Corp to prove that “use of the work caused damage and that would be a lower amount of damages than if it had been used in a wide-reaching campaign”.
“In terms of it being a breach, reproduction of an image without permission of the copyright owner is a breach of copyright unless an exception applies under the Copyright Act,” she explained.
“A news outlet using the image would most likely be covered by an exception under the Copyright Act where it’s a fair dealing exception for the purpose of reporting news, that’s the key difference between a news outlet and a brand using the image. A brand would not be covered by any of the copyright exceptions.
“For commercial use of any copyright work for an ad campaign or similar would always require permission of the owner.”
News Corp declined to comment.
Miranda Ward