Plagiarism, inspiration or a breach of copyright?
Leo Burnett Malaysia has entered a legal dispute with a film director who claims the agency created an advertisement using her pitch without permission. So what is plagiarism, and how can creators protect their ideas? Darren Woolley explains.
The dispute over the authorship of the Cannes-shortlisted ad Rubber Boy has escalated into legal action and counterclaim from the agency. The issue brings to light that for a creative industry that generates value through the creation of intellectual property, the practitioners within the industry often have a poor understanding of their legal rights and responsibilities under the law.
For the purposes of this discussion I refer to the various Intellectual Property legislation that conforms to the TRIPS Agreement.
While I do not want to go into the merits or otherwise of this particular case, which the courts will probably take a long time to draw a verdict on, you can read the two sides of the argument here and here.
Like so many other problems you need to dig a bit deeper to see the real issues. When you understand “the industry” “property” “legal rights” and what a festering can of worms it is then this all comes back to fleas fighting over who owns the dog.
The ruling in the MEN AT WORK case was very, very odd.
The creator of the song KOOKABURRA SITS IN THE OLD GUM tree had bequeathed ownership to the Australian people, ie the public domain.
How that copyright was acquired by Larrikin Publishing without the apparent knowledge and consent of the Australian people has never been adequately explained. The precedent set is quite terrifying.
When DOWNUNDER was written, the KOOKABURRA song was still in the public domain, so the ruling was bizarrely retroactive.
So yes, copyright is minefield where, as usual, those with the deepest pockets usually hold all the cards.
Hi Rutegar,
I’m not sure where you got the idea that ‘The creator of the song KOOKABURRA SITS IN THE OLD GUM tree had bequeathed ownership to the Australian people, ie the public domain.’.
That never happened. A year before her death in 1988, she signed over her copyright for her work to the Libraries Board of South Australia. There was a tender process by the public trustee, with Larrikin buying the copyright of Kookaburra from the Libraries Board.
There is some confusion, though. She entered the song in a competition for the Girl Guides in 1934 … and there was a snippet on the competition’s entry form that ‘All material entered will become the property of the Guides Association’.
So Men at Work’s own legal team didn’t even raise the defense you described – instead they argued that the copyright was still held by the Girl Guide’s Association of Victoria.
So even in the version put forward by Men at Work -the work was never in the ‘public domain’ .. it was always owned by a private company who can control it according to their own interests.
Thankfully the court found that copyright is too important to simply be able to transfer it based on a line on a competition entry form. (For example, copyright is one of the few areas where verbal contracts aren’t even valid – all transfers of ownership or exclusive assignments of license must be done ‘in writing’)
So the line on the entry form that the Girl Guides ‘owned all entries’ didn’t include the copyright to the song … so the author’s wishes to transfer it to the new owners in 1987 were valid.
And the new owners were under no obligation to give a private company (Sony Entertainment etc) a free license to use it.
— Mac