Under Pressure and En Masse would really like ad agencies to stop using their art for free
The ever-niggling question of the ownership of public art is being hotly debated both online and in lawyers’ offices, thanks to two examples of what artists are calling the unscrupulous and uncompensated use of their work by advertising agencies.
The first involves graffiti festival Under Pressure and the Chevrolet Sonic. Last fall, Under Pressure founder Sterling Downey was dismayed and then furious when he saw the Sonic ad “Mixed & Mastered” on YouTube. The ad features, as car ads do, lots of good-looking young people driving around, looking far more cool, successful and happy than most young people today have a right to. It’s hyper-quickly edited, with half-second clips of cool urban art bombarding the eyeballs. Some of that art, he noticed, came from Under Pressure’s mural behind Foufounes Électriques. The TV spot was aired across the country and was complemented by a national print and billboard campaign featuring the Under Pressure wall. All this without so much as a phone call asking permission, says Downey, much less any money.
Downey began an online barrage of abuse aimed at Chevrolet, the ad agency Cossette and its parent agency MacLaren McCann. Anonymous ad busting, in the form of stickers, T-shirts and yes, spray paint, followed. “This is literally one of the biggest ad campaigns ever seen using graffiti as a tool,” says Downey. “The proper thing would have been to contact the festival owners and ask our permission. It would have cost them nothing. People would have been compensated and everyone would have been happy. But instead, [the agencies were] like, ‘Who’s going to fuck with us?’”
Downey has since hired a lawyer to pursue the case, saying, “Chevrolet doesn’t want it to go to court, but I do. I want to create a legal precedent.”
This isn’t the first time a car company used graffiti in their ads. Chrysler allegedly used art by the Bronx’s TATS Cru in a Fiat ad featuring J. Lo last fall. Lawyers talked and a “confidential” settlement was reached quickly and amicably, according to Chrysler (“‘confidential’ = tons of cash!” snarked gossip blogger Perez Hilton at the time).
INSPIRATION OR IMITATION? (L to R) Nov. 2011 Nightlife, detail, En Masse work
Downey’s lawyer is also being retained by Jason Botkin of local group drawing project En Masse (whose artists include former Mirror music editor Rupert Bottenberg), which also has a dog in the Under Pressure fight. En Masse alleges that Cossette used unauthorized En Masse work on the Under Pressure wall in a campaign last year for the Institut national de la recherche scientifique. And more recently, Botkin says the November 2011 cover of Nightlife, a Montreal music and lifestyle magazine published by advertising agency Newad, had art for a cover ad for L’Oréal fragrance Diesel that resembled En Masse’s style too closely for comfort. The ad, produced by local agency Publicis, had a look that “was extremely close to ours, and they are fully aware of what we do,” says Botkin. “Obviously there’s a case to be made for plagiarism. It goes beyond borrowing.”
En Masse and Publicis have worked together before, notably on a Coca-Cola campaign last year. Nicolas Massey, Publicis’ creative director, disagrees with Botkin’s assessment, saying the Nightlife cover was inspired by, not copied from, En Masse. “That style has existed since the 70s and 80s in Europe. They are not the only ones doing it.” Although legal issues kept him from saying too much, Massey remains hopeful that the lawyers will work out a resolution that will satisfy all parties.
The same goes for Chevrolet. Mirror calls to Cossette were directed to GM communications rep Faye Roberts in Oshawa. She says it was not GM’s intention to use artists’ work without compensation. “We hope those discussions will lead to a resolution as soon as possible.” The Sonic ad was re-edited to remove the offending images.
For McGill prof and intellectual property law expert Tina Piper, the graffiti case is clear. “The law is, any creative work is protected by copyright law, as long as it’s original,” she says. “The company shouldn’t use the work without asking permission and should expect to pay some sort of fee or royalty. Artists are entitled to copyright even if they are anonymous.”
As for plagiarism, if two works “are substantially similar, you can claim copyright violation,” she says.
But she adds that most copyright infringement allegations don’t go anywhere. “It’s only worth pursuing if someone is making money off it,” she says.
Chevrolet “made a mistake, and it will cost them,” says Downey.
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