A spoof advertising campaign in which a lookalike of Nespresso global brand ambassador George Clooney is shown in a boutique coffee capsule store does not infringe Nespresso and Nestle's copyright of the original ads starring the actor, Israel's Supreme Court has ruled. The court dismissed the appeal by Nespresso and Nestle against the ruling by Tel Aviv District Court Judge Magen Altuvia, who had ruled, "The use made by Espresso Club in its advertisements of an image of Clooney is legitimate and sophisticated and does not involve any infringement of Espresso's copyright." Judge Altuvia had also described the ad as a parody and amusing.
The Supreme Court, which rejected the appeal against this ruling, said that, "Espresso Club's advertisement is of a different and more innovative character compared with Nespresso's advertisements. We are not only talking about a revamp of the original but also a different production, containing different content and a different message, even if parodying the concept requires use of a lookalike of Clooney and some additional elements that appeared in the advertisements of Nespresso and Nestle."
The face is not George Clooney
At the heart of the dispute was the question of the law regarding commercial advertisements, and at the core was a parody of a rival's advertisement. This question arose after the advertisements for the coffee machines of Espresso Club, were a spoof of the actor George Clooney, who stars in the coffee machine advertisements of 'Nespresso.'
The major advertising campaign by the copyright holders of Nespresso coffee products (two companies incorporated in Switzerland and an Israeli company), revolves around a character played by the actor George Clooney - recognizable by virtually everybody. The advertisements include scenes in which Clooney eyes up attractive women, drives a luxury car, and drinks Espresso coffee. In some of the clips, Clooney enters a Nespresso coffee shop, thinking that everybody is admiring him because he is so famous. But as it turns out he is overshadowed by Nespresso's choice coffee.
Another feature of some of the advertisements is the status of Espresso's stores and coffee, depicted by the elegant and expensive dress of the actors, the music accompanying the advertisements, and the other attractive and famous actors appearing in the advertisements. Finally, in some of the advertisements, Clooney is a poorly aware character who misreads situations, such as when he 'loses out' in the competition for attention by those around him.
This campaign formed the background for Espresso Club's advertisements - a rival to Nespresso in the Israeli market for coffee machines and accessory products. As part of Espresso Club's campaign, several advertisements were produced in which a Clooney lookalike appeared, without concealing it - and while actually emphasizing that a lookalike was involved.
At the start of the main advertisement, a character is seen who closely resembles Clooney in appearance and dress, with a caption beside him saying that the 'presenter is not George Clooney.' A similar caption appears very clearly at the start of the advertisement. The Clooney lookalike leaves the coffee store, which is similar to the coffee stores in the advertisements of Nespresso, holding a smart paper bag in his hand. In the background is a similar tune to the Nespresso advertisement, and the narrator's voice says, 'There is nothing like a new espresso machine': the Clooney lookalike watches a woman passing by in the street and looks at her, and at that very moment his glance is caught by an Israeli man dressed casually. The tune and his celebrations are abruptly interrupted as the man tells him in Hebrew, "Stop talking to yourself, you're being towed away!". The lookalike answers in polished English "Wait but I left the car with the valet." The Israeli answers him, "No buddy with the parking inspector." Afterwards, we see the Clooney lookalike's car being towed away, and the Israeli man tells him that with Espresso Club, you can have your coffee machine delivered to your home for no extra charge. He also mocks the lookalike because he "smiles at the girls" all day, "talks to himself" and "dresses up like a groom to go to the coffee shop." The clip ends with the voice of the narrator telling viewers that they can have a coffee machine delivered free to their home.
The imitation of Clooney: Fair use
These advertisements came to court after Nestle and Nespresso claimed that the advertisements infringed their copyright and harmed their reputation. After the district court rejected the lawsuit against Espresso Club, the dispute went to the Supreme Court, which also rejected the lawsuit from the Nespresso Group.
Supreme Court Justice Neal Hendel together with Justices Noam Sohlberg and George Karra all agreed that the advertisements were a parody, which does not infringe the copyright of the original advertisement. They extensively studied rulings in Israel and abroad and the principles of Hebrew law.
The Supreme Court ruled that the parody is not based on the original production, and it should also be taken into account that fair use was involved. The court spoke extensively about "fair use" exceptions, which allow use of a production by others, its source, and discussed other examples from Israel and worldwide of parody advertisements.
In the case of the rival coffee capsules, it was ruled that parodying the image of Clooney was within the bounds of fair use, primarily because it included criticism of the content of the advertisement and services of Nespresso, and because the parody involved creative additions with a different message, and did not simply copy the Nespresso advertisement.
Nespresso's claim for trademark infringement was also rejected, because Nespresso's trademark does not appear in the spoof advertisement. The court also rejected the claims that the advertisement 'diminished the reputation of Espresso.'
Claims that the spoof advertisement contained false information that misled consumers were also dismissed. Finally, the judges discussed whether it is proper to ban a spoof advertisement out of considerations of fair competition. In this matter, it was ruled that a complex question of economic and legal policy was involved, and as long as legislation has not outlawed the commercial practice, then there is no place for the court to impose such a sweeping ban in the matter. Regarding these specific circumstances, the court ruled that there was no degree of severity that justified imposing specific responsibility.
The judges also pointed out that recognition of criticism and parody as 'fair use' in creativity respects the individual as a producer and grants freedom for personal development as well as protecting the production as both IP and copyright.
Judge Hendel summed up his ruling with several insights into the world of advertising and wrote, "There can be no denying that the world of comparative and image advertising arouses interest, emotions and competitiveness. The tensions even take on a life of their own. In the claims before us different and contradictory outlooks were presented regarding this phenomenon. There are those who think that it is not desirable for the field of advertising to become a battlefield with brand owners devoting their efforts to discrediting their competitors. In contrast, there are those who emphasize fairness as it exists in law - such as defamation law and the field of denial in trademark law - and claim that these contain the proper balances, and that advertising which is not slanderous or violates trademarks is proper and is the key to a commercial world and competitiveness in the market. These different approaches to these questions can be found around the world."
In this context, Hendel sent a message to legislators, "This situation brings us to the conclusion that the legislator has the solutions. In its hands are the appropriate, extensive and good tools with which to examine the expected influence of this or that commercial arrangement for the market and for competition. On another level, it seems that this case has put into sharp focus the power of parody. Within the right bounds, this is a general and independent production that might expose the weakness of other advertisements by using irony. Criticism such as this, in the right measure and according to the rules - is worthy of protection."
Adv. Zohar Landa from the Barnea, Jaffa, Lande & Co. law firm who represented Espresso Club said, "The Supreme Court set in its detailed ruling that Nespresso has no copyright regarding George Clooney, even after an investment of hundreds of millions of dollars in the advertisements. This ruling further strengthens freedom of competition and freedom of expression, and in my estimation the ruling is expected to influence the world of advertising content in a major way in every aspect."
Espresso Club said in response, "The Supreme Court today blocked Nespresso and Nestle from harming competition in the coffee machine and capsules market. In its decision, it ruled that there was no attempt at deception but rather a desire to make Espresso Club's products distinct through constructive critical parody of the image that Nespresso sought to create. We suggest that Nespresso focus like us on creating genuine value for consumers, instead of costly legal struggles and campaigns."
Published by Globes, Israel business news - en.globes.co.il - on August 11, 2019
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