Who stole my ad? Brand or Agency

Plagiarism is synonymous with the Advertising industry. With Ogilvy and Matheno Films taking a stand has initiated the right discussions that the industry was missing.

You were born an original. Don’t die a copy. - John Mason.

Talk to anyone who has worked long in an advertising agency, you will hear at least one story of how her agency lost a pitch only to find out later that the same idea is on air. The competing agency that won the pitch, is now the owner of the original idea with the required changes. This is such a common practice, that it has become a joke.

In all this “the brand” or “the marketing heads” are hardly questioned.

But not anymore. This Diwali season the Indian advertising industry saw something that was waiting to happen. First, it was Ogilvy’s Brand David takes Vivo and Dentsu Impact to court. And when the industry just got back from the much needed long Diwali break; Matheno Films initiated action against Citibank. Both cases deal with the copying of a creative ad in slightly different forms.

Ogilvy vs Vivo and Dentsu Impact

According to the lawsuit, Ogilvy alleged that Vivo had approached its agency Brand David last year to pitch ideas to advertise their phones. Ogilvy claimed to have shared a detailed storyboard with Vivo before they rejected their “amusement park” idea. Prior to Diwali, the rejected idea resurfaced for Vivo with a new agency, Dentsu Impact. Ogilvy decided to take Vivo and Dentsu Impact to court. The court found many similarities between the initial idea submitted by Brand David and the TVC that aired.

Here is the disputed ad featuring Bollywood superstar Aamir Khan promoting the Vivo V17 Pro.

Meanwhile, Dentsu Impact refuted Ogilvy’s claim only to be rejected by the court. Hon’ble Justice BP Colabawalla directed Vivo to either deposit Rs.1 crore or furnish bank guarantee if it wants to continue airing the ad on television. Vivo got a reprieve when the court allowed it the benefit of the ‘balance of convenience’ since the brand had already made massive investments in the ad. But the court made it clear that the ad has multiple similarities with the Ogilvy script. Dr. Sandeep Goyal in his opinion piece at Campaign India lists the similarities stated by the court.

Both scripts are set in an amusement park

The two main characters, though different in age, enter the amusement park after it had closed/when it was closing

The creative device of lights switching on the moment the selfie camera pops out

The girl sits on a carousel horse and the boy pops out the camera; the moment boy pops out the camera the carousel lights switch on and the boy takes a selfie with the girl

When they are sitting on a lifeless giant wheel, the boy pops out the camera and the giant wheel switches on and the couple takes a selfie

Every time the boy turns on his phone’s camera and it pops out, the attraction/ride in front of the camera lights up

Lawyers representing Vivo and Dentsu Impact argued that the similarity in the script was not an IP infringement, only to be rejected by the court.

Matheno Films vs Citibank

Ogilvy taking Vivo to the court, was a bold move but at the same time, I thought that an agency like Ogilvy can do it. However, I was surprised by the move made by Matheno Films when it decided to send a legal notice to Citibank. By no means I am judging Matheno Films but in India, you really don’t want to knock the door of a court. (#Respect Matheno)

In 2017 Matheno Films released a film “Cup of Tea” to support a fundraising campaign for children's education. The 3-minute long video is a story about a young female photographer chasing a village boy to get her bag back. The twist is that the photographer gets her bag back but the boy is no harm to her, he wants her to educate him and his village. The film stirred a connection with viewers and was selected at film festivals across the globe.

This year during Diwali, Citibank released a video “Spread More Cheer This Diwali”. A minute-long film shows a girl buying a cake with her Citibank card only to be snatched by a young kid. Thereafter you see a chase between the girl and the kid which finally ends with the kid celebrating his friend’s birthday with that cake. But the party is spoiled by the girl and her friends. After some deliberation and soft music, the girl melts and everyone celebrates the birthday. The video ends with the girl asking the kid if he would like to continue his education and Citibank showcasing Citi cards. I am yet to decipher what is the brand trying to communicate.

Any rational mind will tell that the Citibank’s ad has stark similarities with the “Cup of Tea” film. However, Priyanka Setia, director of the Citibank Diwali commercial speaking to AFAQS shared that both works of art are based on completely different premises with different characters motivated by different intentions.

As a professional director, I respect the genuineness and the message of different filmmakers. However, a foot chase is a sequence/concept/idea that exists in the public domain and does not belong to any single film. Such a sequence has been used in a number of films as a tool to achieve unique motives and intentions. Well, the two films are driven by different motives and factors.

Production house MacGuffin Pictures’ legal team has also shared a statement firmly standing behind the originality and authenticity off the Citibank film. “No one person can claim any rights over the portrayal of a scene where a child stole something and was chased.”

On the face Matheno Films have a valid point but when and if it goes to the court the case will fall. First, you can’t have a patent on an idea and other than the chase the Citibank ad has a vague communication - it talks about spreading cheer, and education. The Citibank ad is all over the place, unlike the “Cup of Tea which has crystal clear messaging. So it will be a challenge for the legal team representing Matheno Films. There is no news on how Matheno Films wants to take it forward after sending the legal notice.

Stealing is a global problem

Plagiarism is a common behavior across the globe in the advertising and in the creative industry.

In May 2019, Manifest founder Alex Myers went on Twitter to claim that BrewDog’s ‘Punk AF’ concept was created by the agency and the client has not paid for the work. The concept was created by Manifest for BrewDog, only to be told later that the idea has been rejected thereby calling an end to the nine-year professional relationship. “We created a branding proposal for ‘soft beers’. Our central idea was Punk AF, a strategy based on the challenges of the category and the opportunities for BrewDog. However, they said they were going in another direction.” Alex said to The Drum.

The episode took an interesting turn when BrewDog referred to a tweet from James Watt, which acknowledges Manifest did once work on a product bearing the same name but claiming it did so while on a retainer.

In 2017, The Department of Tourism (DOT) discontinued its contract with McCann Worldgroup Philippines over the controversial “Sights” commercial which was allegedly copied from a South Africa tourism ad.

These are just a few cases which got highlighted, there are enough cases that are sealed off to keep peers and clients happy.

The role of ASCI

What will an agency do if it has no resources to fight a courtroom battle? You can approach The Advertising Standards Council of India(ASCI), established in 1985 has a Code for Self-Regulation in Advertising. This code has a section “Fair in Competition” that deals with issues related to plagiarism. To have a better understanding of how these codes work and what is the right procedure ASCI requests you to download a PDF document.

After going through the document, the crucial insight is that if ASCI finds someone guilty of plagiarism then it has the powers to inform the concerned Regulatory Authority or Government Department for the appropriate action as per the existing laws in the country. In other words, Ogilvy knocking the doors of the court made perfect sense.

Looks like the advertising body is working on a solution that would stop such incidents in the future. According to the latest developments reported by E4M, the Advertising Agencies Association of India (AAAI) is creating an initiative to create a copyright solution for ideas shared by creative agencies with clients at pitches. According to Rohit Ohri, Chairman and CEO, FCB India who is leading the AAAI initiative, work has already started on this six months ago."This initiative will go a long way in protecting the intellectual property of creative agencies. We are hoping to go live by the end of this year."

Is there a solution?

Keeping the AAAI solution aside, knocking the court doors is the only solution. If you don’t have the time and resources then you are left with the choice of going to social media but it is risky.

The solution lies in clearing the filth from the pitching process

Ideally, when a business/brand opens up for a new pitch, it calls the existing agency and other agencies to present a pitch. You present a business strategy, digital strategy if needed and multiple creative routes that involve the concept of the films and mock-ups of creatives. At this point, the brand is looking for the next big advertising idea with no clue, so it goes on scouting for fresh ideas. The problem starts here and both agencies and brands are responsible for this ongoing trend of hijacking someone else’s idea.

In the Ogilvy Vs Vivo case, the agency had an ongoing working relationship with the client but the client decided to part ways because it didn’t like the idea. If that was the case then how come the brand had a similar storyboard from a rejected ad. The brand has played its card or there could be an agency employee who did the work. Sandeep highlights this issue in his guest post:

I know these are issues never openly discussed but there are enough creative guys who carry away ideas they have been exposed to at one agency and then reproduce them in a different avatar at their next employer, passing off the creatives as their own.

Additionally, I don’t buy the thought that individuals working in different agencies can have coincidental thoughts. We can have similar thoughts but not frame by frame.

Even if agencies have a mandatory slide in every pitch that the ideas presented are copyright, one can keep the core and change everything around it and simply sell it. Matheno Films case with Citibank falls in this bracket.

There is no solution other than fighting in courts or take it to social media. Can AAAI be the torchbearer and address the issue? We will have to wait and watch.

Today a brand calls for a pitch and there are 8-10 agencies participating in a pitch. The brand picks up the best idea and gets executed with an agency it likes. No one wants to talk about this ongoing practice so it's a brave move from Ogilvy and Matheno. The practice won't die soon but it might reduce the taken for granted attitude. More than a legal battle, no brand/agency wants to dominate social media for all the wrong reasons.

We have taken the quote “Good artists copy, great artists steal” too far. By the way, there is an ongoing debate on who said the quote first :)

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Header image: Snopes.com