FCB’s waterproof whoopsie leads to legal threat—UPDATED

Sony and FCB’s Bottled Walkman campaign has caught the eye of a few awards judges in recent months. But it’s also caught the eye of one of Sony’s competitors, which is currently thought to be threatening legal action over the use of footage in the original case study video. 

StopPress received an email from Duncan Walsh of FX-Sport claiming that FCB used video footage of its product (the over the ear headphones in the first 12 seconds) in the original clip created to promote the campaign for Sony’s waterproof headphones, which saw the product sold in bottles from vending machines at pools. 

“It is blatant copyright infringement and DraftFCB now admit this,” he wrote. 

As well as taking issue with the use of the footage, Walsh wrote that it “is also derogatory to our product as it implies you cannot swim with our product [which you can]”. 

Walsh wrote that “copyright infringement on a commercial scale is a criminal offence and may be punishable with a prison sentence. It is very serious and we wish to get to the bottom of it. The matter is currently in the hands of the police”.

FCB did not want to comment on the issue and it’s not clear whether FX Sport is asking for compensation, but FCB has attempted to remove the original clip from the web where possible and asked StopPress to replace it with the new version. 

When asked what FX Sport was asking for, Walsh said via email: “FCB and Sony at the moment have been contacted and we are awaiting their latest reply.” 

This saga is a prime example of the potential stumbling blocks that exist for agencies, marketers and content creators in the digital age. Back in the day, case study videos or awards entry videos were destined for the client or agency’s website or the eyes of juries, so liberties around the licensing of music and footage were inevitably taken (the same can be said for many of the typically entertaining in-house going-away videos). In the case of awards entries, they were often watermarked as for ‘awards purposes only’ in an effort to protect themselves, but as videos originally meant for a small audience are increasingly uploaded to the web by third parties and often clock up many thousands of views, all parties have had to become more diligent. In fact, Cannes Lions and other major awards schemes have recently decreed that all entry videos must have the appropriate licenses to be accepted. This obviously means entering awards takes more time and costs a hell of a lot more than before, but when there are lawyers trawling the internet hunting for oversights, it pays to have the house in order. 

The online realm is also creating difficulties when it comes to talent contracts, as FCB’s head of content Pip Mayne wrote in NZ Marketing last year (she didn’t want to comment on the Sony scenario). 

Talent contracts—and how they best work in today’s highly fragmented and rapidly evolving media market—have become an increasingly complex and contested issue.

Talent agents, talent, brands and producers have found that with the advent of digital media there is disagreement around how long, and where, content featuring talent should be shown, and at what price. 

Unlike the days when talent content was used across a limited number of platforms such as television and radio, successful campaigns can now spread across a myriad of online platforms at a lightning quick rate and receive unanticipated and uncontrolled exposure. But a consensus within the industry on how this grey area is best resolved has not yet been reached.

Over the past two years, senior agency producers, talent agents and Actors Equity representatives have made an attempt to address this situation and work towards a standardised process that takes the interests of all parties into account. 

Following an extended period of discussion, revisions were made to the existing Pre Casting Brief (PCB) in September 2012 that outlined an agreed process to reach the Total Performance Fee (TPF), for a set level of talent exposure.

The revised PCB was designed to include and/or option all possible channel usage for pre-negotiated contracts that span up to, normally, a 12 month period, with right to rollover for 2nd and 3rd terms (with three and six month options).

Included now in the TPF is use of material On Demand and the ability to view material as ‘click to view’ on 1 x home page, 1 x YouTube home page and 1 x Facebook home page for the client, agency and production company as well as additional online activity such as the use of TVCs to promote agency work on industry platforms. This new PCB has since been used successfully by a number of senior industry professionals within market.

… The PCB document does not claim to solve all problems related to talent contracts, and there are still some sticking points that need to be ironed out. Historical housing of client content, which exists outside of talents’ initially contracted terms, in particular remains an issue.

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