For advertisers in the United States, Christmas is over. That is, the US advertising industry’s version of Christmas – the Super Bowl. With an audience of over 111.3 million, sometimes the advertising seems more anticipated than the on-field play.
After an enthusiastic press release last year, stating it would be the first yoghurt company in history to advertise during the Super Bowl, US food giant Dannon aired an ad for its Oikos Greek yoghurt (“Ad”), during the third quarter of the game. Entitled the “the Tease” and starring John Stamos in an amusing play on his lothario image, the ad seems to tick all the boxes for the high quality product you’d expect to see during the Super Bowl. However, soon after it aired, fans of independent Aussie folk rock band John Butler Trio (‘JBT’) turned to social media – questioning the jingle used, and discussing its uncanny similarity to JBT’s 2004 ARIA single of the year – ‘Zebra’. [As an aside, a quick tip of the hat for best comment must go to ‘Phil Bolton’, who posted on JBT’s Facebook page ‘You just got Vanilla Iced my friend’ (referring, we assume, to the blatant sampling of David Bowie and Queen’s song ‘Under Pressure’ in Vanilla Ice’s dance floor filler ‘Ice Ice Baby’).]
The Oikos Ad is estimated to have cost around $50,000 to produce and upwards of $3 million to broadcast in its premium prime time spot. In addition to the record number of live viewers, the Ad has been viewed on YouTube more than 900,000 times since its first broadcast. Indeed, it is still appearing (ranked number 9) on the USA Today Super Bowl Ad Meter.
Official statements made on behalf of the John Butler Trio suggests the band is seeking advice and considering its options. Although it’s unclear whether said tactics are being sourced from the lyrics of Zebra…
“I could be a gentleman or I could be violent,
I could be hot man or I could turn cold,
I could be just like the calm before the storm boy
waiting for all hell yeah to break loose”
Official statements made by lawyers for Dannon at this stage sound apologetic and co-operative.
We couldn’t help wondering how an Australian court would assess this similarity, with particular regard to the recent EMI v Larrikin Music case. There, the question was whether the introduction to Men at Work’s song ‘Down Under’ infringed the owner’s copyright in the Australian folk tune, ‘Kookaburra sits in an old gum tree’. In that case, the Court held that there was copyright infringement, even though the original work was very short (about four bars), and the amount copied was even shorter (about two bars). In assessing whether a ‘substantial part’ was taken, the court applied the typical approach that one must assess ‘substantiality’ by both the quantity and quality of what was reproduced.
Applying these principles, JBT fans would no doubt argue that the Oikos tune is instantly recognisable as deriving from Zebra. They could well say that the baseline of JBT’s ‘Zebra’ essentially comprises four bars of music (albeit augmented by the chorus and some other notes), and the Ad appears to have appropriated the same four bars.
It’s important to note that if the tune in the Oikos ad has been independently created (so it is a coincidence it sounds the same), the makers of the ad would have a defence under Australian law. There must be copying for infringement to occur. If there has been copying though, the makers of the ad could not say it was “innocent”. There’s no subjective test here. If you’ve copied, the question is simply whether the amount taken is ‘substantial’.
In addition, section 29 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010), prohibits a person from making a false or misleading representation that a good has sponsorship or approval that it does not. By using a jingle which could, arguably, be mistaken for JBT’s ‘Zebra’, it could be argued that the Ad makes a false representation that JBT has approved the use of its song in the Ad, which it has not. Having always held itself out as an independent band – politically active and environmentally aware – a suggestion that JBT had ‘sold out’ or commercialized its song in this way could possibly be seen as aggravating any damage to JBT’s brand. Similar restrictions apply in the United States to protect ‘personality rights’ (see our earlier post in relation to a lawsuit by Kim Kardashian here).
To make the situation more complex, the Ad was not created by Dannon in-house, but by 21-year-old Remy Neymarc, who entered Dannon’s competition to create an ad for the Super Bowl through advertising crowd-sourcing website, Poptent. See more information here.