3M Steals Viral Image Idea To Avoid Licensing It

There is probably nothing more pathetic in the world of marketing than watching a big corporation try to do something “viral”—usually they end up looking like Elaine dancing. But sometimes, they’re so cynical and soulless about it that they don’t just come across as incompetent, but as exploitative cheapskates as well. In 3M’s case, they wouldn’t pay $2,000 to license a well-known photo with its own viral history, and instead recreated a fake version of it to save a grand. We guess they’re just hoping none of the sites and communities that made the photo popular in the first place will notice. Oh wait, this is supposed to be viral or something…

Melanie at All About Content has the entire story, from the original office prank that went viral thanks to sites like Digg and BoingBoing, to 3M’s attempt to appropriate it, to their shabby treatment of the owner of the photo and their subsequent workaround.

Michelle, the “eMarketing Supervisor” who was negotiating with Scott, comes across as particuarly disingenuous in her email to him:

We were quoted about $750-$1000 to shoot our own, but if you could allow us to use yours on a couple in-store displays for 6 months within that range, we could arrange for that instead.

Really, Michelle? Only two displays throughout the entire country? Are you a really bad eMarketing manager, or lying to Scott about how much you’d use the photo? [We think mmmsoap makes a good point about how this was probably meant.]

We guess what’s most offensive about this is 3M can surely afford to pay a legitimate licensing fee to the owner of the photo, which would have also served as a goodwill gesture to the community that most likely gave it the campaign idea to begin with. As Melanie puts it in her article:

But let’s pretend the legality of this move wasn’t even a question for now, and focus on this: Social media marketing campaigns rely on the social media community to carry them. As a marketer, you have to respect the community and its members. Ripping off community members and then turning around and asking that same community to generate buzz for your campaign is just ballsy… or stupid.

The irony: The YouTube contest rules say “Remember, creativity and true brilliance will get you noticed.”

Is that part of the rules, or a threat from 3M?

“3M Carjacks the Post-It Note Jaguar” [All About Content] (Thanks to Craig!)
(Photos: 3M display and original Post-It car by Scott Ableman)

Comments

Edit Your Comment

  1. Livardo says:

    That’s pretty douchey and cheap of 3M. Don’t these companies think these types of things come back to bite them in the ass?

  2. SOhp101 says:

    It is a shame… and their products really are superior to generic versions. Before I thought the premium was worth it but not anymore! 3M can go f*ck themselves.

  3. I once got a call to acquire the rights to a domain name (not one exactly in demand). The company called and said “oh we are just a small little boutique firm, please can we have it?”

    So I was like, uh, sure. I’m a small business guy too and I wasn’t even using the domain anyway.

    Later I found it was for [mega giant media company] and they just used the smaller company as a front to buy the domain.

    I was pretty mad. I understand that maybe people hear a big company name and get $$$$ in their eyes, but I didn’t like being lied to either. Especially how they laid it out.

    Lesson learned, I guess.

    • econobiker says:

      @twophrasebark: Hiding a large companies intentions behind front companies is a pretty standard tactic. I read about recent (last 20 years) casino building in Las Vegas and how front companie are/were used to gather up properties without tipping off the competition. These corps even used front companies to persuade reluctant private sellers to sell “because no big corporation is going to get the land” etc…

  4. balthisar says:

    ::shrug::
    What “community”? What “stealing”? If you think about this logically, store displays aren’t things that “go viral” — that only happens to internet nerds (of which I count myself).

    Family Guy rips off the Simpsons. It’s not stealing.

    Legally, then, the photographer owns the original photo. That’s what would have been licensed. Original works — like 3M commissioned — don’t fall under copyright. And of course the idea of patenting a Post-It Note car is just ridiculous.

    In short, I fail to see what the issue here is? Let alone a consumer issue?

    Note to mods: There’s not really a consumer here to help, and I’m not blaming the consumer for anything. Also I’m not criticizing the fact that you posted this here. Just explaining the situation for all the emotional people that show up and start uttering about thievery and such.

    • @balthisar: “In short, I fail to see what the issue here is? Let alone a consumer issue?”

      The issue is bad publicity for 3M. While you may not see a problem, most people see 3M as being: cheap, sleazy and not well informed about viral marketing.

    • Consumerist-Moderator-Roz says:

      @balthisar: Please don’t post all in italics. It’s distracting and attention-grabbing.

    • magic8ball says:

      @balthisar: Actually, if you read the comments at the linked site, there is some precedent for the artist to recover damages. The example they give is Fournier v. Erickson, which “involved a photo that Microsoft was going to license from the photographer, but negotiations broke down for the price, so MS hired their own photographer to shoot the same “theme” idea. The judge ruled this was copyright infringement because the spirit of the photo was copied, even if not the photo itself. The details here are critical: it was a “HIGHLY ORCHESTRATED” photograph, where it’s not just something one sees everyday or by accident, but considerable time and effort had to go into its conception AND into its execution.”

      • RStewie says:

        @magic8ball: That’s all well and good, but doesn’t the picture need to be copywrited first?

      • agnamus says:

        @magic8ball: Fournier v. Erickson doesn’t do the work you want it to. In Fournier, the court specifically held that “As a threshold matter, it is well-settled that the protection of the copyright laws extends only to the original expression of a concept, and not to the concept itself. See Boisson, 273 F.3d at 268.” They went on to hold that this means that although the idea in Fournier (of a young businessman walking down Wall St. wearing casual clothing, thus breaking the mold) was not copyrightable, elements of expressing that idea were (e.g. Microsoft copied camera angles, lighting and myriad other things). It’s essentially the difference between me taking a picture of a woman sitting down and not having to worry about ripping of Da Vinci’s Mona Lisa, but if I were to paint the exact same picture, I would have to worry.

        In short: it disturbs me that legal amateurs are so willing to toss out seemingly supported ideas on the internet as true. They even cited a case name–it’s pretty persuasive if you don’t have the ability to look up the case and call bullsh*t. What’s scary is that 95% of the legal opinions people toss out there that I’ve seen are plainly wrong like the Fournier analysis here. It scares me to think how wrong people could be with everything else that I can’t call BS on.

        • Reeve says:

          @agnamus:
          I agree with you that people may be misapplying the case. However, it is not clear that this photo would pass under said test. It seems 3M has tried to copy a lot of things from the original photo such as the camera angle, lighting etc. It is not the same photo but it deliberately made to look similar. I do not think this is clear either way – It seems that many elements of the first photo were copied but it still may not be enough to constitute infringement.

    • stacye says:

      @balthisar:

      Family Guy rips off the Simpsons. It’s not stealing.

      I would just refer you to the South Park episode, where that annoying kid kept saying “Simpson’s did it!”

    • theycallmetak says:

      @balthisar:

      It may not be infringement, or even theft for that matter, but it sure seems sleazy and lame.

    • Reeve says:

      @balthisar:
      You can read the other comments but there very well is a copyright in the photo and 3M may be making a derivative work. There is case law that indicates this type of blatant copying of another’s photo may be infringement.

  5. Well, all future post-it decorating projects (like the super mario in the windows) are now officially lame. Way to kill the viral buzz by co-opting it the wrong way.

  6. mmmsoap says:

    While, yes, sounds like the marketing dept. is trying to screw over the little guy (mistakenly assuming their tactics are not going to hit the internet, especially after the original went viral?!? Silly 3M!) but I can’t say I read the original email the same as you do. “A couple in-store displays” just doesn’t imply “one or two stores” in my mind, but rather “one or two images within our promotion”, which is then distributed to their stores.

  7. The_IT_Crone says:

    Why can’t people get the concept of “intellectual property rights?”

    • floraposte says:

      @The_IT_Crone: Despite what the source article says, I doubt that this is actually an infringement of anybody’s intellectual property rights (scummy, sure, but not an infringement). You can’t copyright an idea. What needed licensing wasn’t the idea of the post-it car but the actual photograph, the work of art in a fixed medium. If they’d copied the exact same design on the car, they might be in breach if there were a claim that the car itself was a work of art, but they didn’t copy the design.

      My guess is that 3M was very clear on the intellectual property rights issue, and that they carefully operated on the legal side.

      • camille_javal says:

        @floraposte: Except they border on copying the expression, which is protected.

        This case is a good corollary – Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (SDNY 2005). Coors wanted a picture, didn’t like the price, assembled basically the same elements to recreate the picture, to the point that the court found they crossed the line from using the idea to using the expression.

        (The photographer should, in the alternative, consider filing in the 2d Circuit – however, none of these comments constitutes legal advice in any form)

        • floraposte says:

          @camille_javal: That’s a case about photographs, true, but it’s a case where there’s considerable orchestration within the taking of a photograph, which is what the case hinges on. That’s not true here, since it’s simply the three-quarter pose common in car ads. The point of the post-it car photograph is the object in it, and Mannion vs. Coors explicitly rejects same-subject as a breach. The cars have similar colors on them because those are the colors post-its come in, but they’re in a completely different array and with different designs. What people are pissed about is that 3M copied the guy’s idea, but copyright doesn’t cover that, and discussing the photograph rather than the car isn’t going to get them closer to it.

    • @The_IT_Crone: Don’t you get it. Intellectual Property rights only apply when it’s the small people abusing Big Corp IP rights.

    • pegr says:

      @The_IT_Crone:
      “Why can’t people get the concept of “intellectual property rights?””

      Please show me where in the Constitution or Title 17 where this mythical “Intelectual Property” comes from. If it ain’t a patent, trademark, copyright, or trade secret, it ain’t squat.

      “Why can’t people get the concept of mythical property?”

  8. Jamezspot says:

    Uh I did this to a friend’s car as a prank once and didn’t pay anyone anything (excluding the post-its). Do I need a license for that or am I legal?

    • The_IT_Crone says:

      @Jamezspot: It’s not that 3M is USING it, the problem is that they are PROFITING from it.

      While this person might not be the FIRST to do it, clearly 3M’s promotion is a copy of this particular endeavor.

      • agnamus says:

        @twophrasebark: I see how this is bad publicity for 3M, but I’m failing to understand why it should be bad publicity. You see them as being cheap and sleazy; I see them as having made a more than fair offer to the idea’s creator.

        The people who took the original Jag photo don’t have a patent. They don’t have a trademark. The best that the photo takers have is a copyright over that specific photo. They have no rights as far as the idea is concerned.

        Commerce would literally shut down if businesses/people/future artists had to pay royalties for past ideas. Guess what? No idea is truly original. 3M owes these guys nothing, and the outrage is ridiculous.

        Seriously, imagine a world where people “owe” something for mimicking past ideas: Renoir wants to paint in an impressionist style? Better pay royalties to Rubens first. Anyone want to make any modern rock music? Better pay the estates of Elvis, BB King and the Beatles. Want to go play a round of golf? The folks over at St. Andrews thought of it first, so pay them.

        Sure, 3M could afford to pay these people more, but why would they. They are not the March of Dimes. They are not in the business of giving out gifts. They are in the business of promoting their product to the best of their abilities which conveniently helps to bring the consumer better products for cheaper.

        • Livardo says:

          @agnamus: …Anyone want to make any modern rock music? Better pay the estates of Elvis, BB King and the Beatles…
          ……

          What’s happening here is more analogous to sitting at a Beatles recording session, listening to the music and running home to author the same music (while you slightly variate it, say, by upping the tempo). Don’t think anyone will have a cow about that?

    • camille_javal says:

      @Jamezspot: if you have a photo of it, it’s your independently created work, and entitled to its own protection under copyright.

      The problem here is that 3M left breadcrumbs – they tried to deal with the original artist, and when things didn’t go their way, ripped it off. So there is evidence of infringement (access and substantial copying) – it could be an infringement of the expression, depending on the way that expression is characterized, or an unauthorized derivative work.

      Either way, the photographer should file suit in the 9th Circuit. 3M’s general counsel for these matters is either on vacation and oblivious, or made of stupidity.

  9. DeleteThisAccount says:

    Waste of Paper.

  10. LeoSolaris says:

    I agree with the AngrySicilian.

  11. JudithAbderus says:

    The point here is that 3M hoped to leverage the photos’ already-cult status, and sought to do so on the cheap by intentionally confusing people. It’s like using a celebrity impersonator to endorse your product without paying for it or saying “celebrity impersonated.” It’s quite blatant, from the e-Marketing Supervisor’s email (stating the intent), to the photo and montage on YouTube. Well documented, Melanie.

  12. LeoSolaris says:

    I agree with the AngrySicilian

  13. LeoSolaris says:

    Hmm… it posted twice… I guess I really do agree!

  14. JollyJumjuck says:

    Odd, because a good friend of mine works for 3M in the IT department and he once told me a few years ago how many hoops they have to jump through so as not to run afoul of licenses, patents, and copyrights. Mind you, that was a few years ago.

  15. shepd says:

    Ummmmm, I don’t see the issue. 3M made an offer, one that would have benefited both sides (Photographer gets $$$, 3M gets to save a little $$$). The other side didn’t want to take the offer, instead insisting they have a bonanza (ie: Charge more than the cost of 3M recreating the picture for the already done picture). Since 3M is a publicly traded company, they are required by shareholders not to do things that would waste the company’s money (not that this actually always happens…). It is definitely a waste of money to spend more to buy a stock photo than the cost of creating your own.

    Why do you think the boring stock photos of, for example, people answering a phone are in the 3 digits price range, for example. Well, it’s because you can hire your own model, buy a nice new phone, and hire a starving student photographer for that price range.

    3M did the right thing, and was incredibly open about it too. How many people, when negotiating, lay their cards on the table like this? Not many, and the ones that do are both foolish and honest. People trying to take advantage of that are jerks.

    Perhaps “artists” that create easily (and legally) replicatable art need to realize their work has as much value as the cost of the time and materials required to make it, just like any other job. The only time you get to make $$$$$$ is when you manage to snap that once-in-a-lifetime photo of a crying child in the middle of a war zone, since nobody is going to replicate that. This really doesn’t contrast much from any other job. I wouldn’t expect a bonanza on my car just because it was featured on the cover of “Car stereo of the year” magazine. At most I’d get back what I paid for it — labour + parts (in my case $100).

    BTW: The 3M version looks cooler, IMHO. I like the spotted window and heart on the windshield.

    • WraithSama says:

      @shepd:
      “BTW: The 3M version looks cooler, IMHO. I like the spotted window and heart on the windshield.”

      It’s funny you mention that, because I have a feeling that the spotted window and the heart on the windshield were probably added explicitly to vary the image just enough to dance around an infringement suit.

      • chrisjames says:

        @WraithSama: Actually, they were probably “explicitly” added to make for a more interesting image, something that customers might better respond to. Trying to defend your post-it car as being fundamentally different because it has a heart is… odd.

        @veronykah: “You can’t copyright an idea.” Well, you can patent an idea.

        And some fun quotes from the linked article:

        The effect of the copied work undermines the potential market for or value of the copyrighted work…

        Putting sticky notes all over a car, admittedly, isn’t a completely original idea…

        • balthisar says:

          @chrisjames: “Well, you can patent an idea.”

          No you can’t. You can only patent an invention. Or a distinctive design. Or lately, a business method. And in this case, there’s no utility to a stickied car (i.e., it’s not an invention, and you can’t patent ideas).

    • purplesun says:

      @shepd: I think the problem is less a copyright issue or a savvy business decision issue, but rather that 3M chose to be somewhat obnoxious about using an idea that was well known to a great many people worldwide.

      Will saving some money in the short term really earn them more in the long term?

      If you offend the people you’re trying to sell your products to, then probably not.

      Turns out that wasn’t business savvy at all, when you think about it.

    • crackers says:

      @shepd: So…novels are only worth the cost of paper and the time it takes someone to retype it? Albums are worth the cost of session musicians to re-record. I beg to differ with your analysis of the value of “art.”

      • shepd says:

        @CCS:
        No, novels are worth the cost to create the same idea. Copying it by re-typing it is copyright infringement.

        Now, bear with me for a second while I explain the distinction:

        Stephen King writes a book about a giant lamp monster attacking people in a small town. He offers it to a publisher for $300,000,000,000. The book is okay, but not top quality work. The publisher decides they like the general idea (lamp monster vs. people) and instead commission another author who has never read the book to write a similar book for them. They only provide that person with a 10 page summary of Stephen King’s book (sans real character names) so an identical copy isn’t made.

        Is that morally right? I say it it is. I don’t know if it is legally right, but it certainly sits morally fine with me. If it doesn’t sit fine with you, I hope you’re using a Mac, because all PCs are pedigree from the same “stunt”. IBM wanted too much money for their BIOS, or wouldn’t sell it. Other companies took the specs (like a general outline) and made their own personal in-house version.

        Now, on the other hand, if they took the Stephen King version of the lamp monster story and asked a typist to format it, and sold it without paying Stephen King, that is morally (and legally) wrong.

        As for there being a long period of thought behind coming up with the idea of covering a car with post-it notes that has value, please… people have been covering things with post-it notes as a joke for a long time.

        And, for albums, they are (generally) worth exactly the cost to re-record it and create new lyrics/melody (both are copyrighted). Now, consider this: How much would it cost to hire U2 to re-record “Even Better Than the Real Thing” when they know you’re doing it so you can sell it for money? A lot? Would Lionel Ritchie singing the song with a slightly different melody make it worth anywhere near as much? Wouldn’t anyone “fall” for it? I doubt it!

        As for direct ripoffs of albums, melodies are copyright. Witness “Ice Ice Baby” vs. “Under Pressure”. David Bowie could have easily won a lawsuit in that case because it’s a direct rip off. If Vanilla Ice had been smarter, he would have changed the melody enough to escape the (what is it? 7 notes? 8 notes?) copyright length if he didn’t want to pay Bowie and not be a jerk. :-) Of course, the song wouldn’t sound the same.

        A balance has to be figured out as to what you want: An ersatz representation, or the real thing. If the real thing costs too much, drink Pepsi, if you follow my drift. Better yet, explain why you only drink Pepsi so people know how you’re being ripped off! The neat thing is this really shows the value of the work created: If the work is simple, a “rip-off” is simple, and so the work has low real-world value (think “Happy Birthday” and why restaurants have their own version of the song… cost is higher than the real value). If the work is relatively complicated (think Mad Max) people will pay for the real thing, rather than an inferior copy (Think Exterminators of the Year 3000 — real move, honest!).

        Gawd, another novel of a comment. Sorry!

        • crackers says:

          @shepd: Wow, you DO write novels for posts…ha ha! Thanks for such a thoughtful, thorough response.

          I hear your points, and agree with you to a certain extent. But I, for one, DO think it would be morally wrong to hire a D-list Steven King to write a lamp monster book after asking Mr. King for his original. That’s just my opinion, and it’s probably heavily slanted by the fact that I’m an artist and will naturally lean towards more protection to creatives and their ideas.

          That being said, I think it’s more than obvious that the 3M folks didn’t get a “10 page summary” of the novel; they got the whole she-bang and were instructed to recreate. I just don’t see any other way the cars would wind up with the same “color blocking” effect (or how they’d wind up with such a similar series of creation pics) if it wasn’t a direct copy.

          And you’re right…the idea of covering something with post-its isn’t particularly exciting or unique, but this particular incarnation HAS achieved unique status due to its viral nature on the web, which is the only reason 3M was interested in the first place.

          Oh, and for the record…I AM a Mac user! ;)

  16. vk2tds says:

    Hmm…

    Dumb question… Did the photographer own the rights to the concept, or just to the photograph of the concept? If he only owned the rights (moral or legal) to the photograph, then the people who actually did the post-it-noting of the car would be the ones who would license the concept.

    And it looks like the people who came up with this were totally ignored with all this. They should have got some remuneration for the concept. The photographer should only get paid if you use his image.

    • veronykah says:

      @vk2tds: You can’t copyright an idea. A photographer automatically owns the copyright to their image the moment it is taken [unless of course there was previously a work for hire agreement]. It is generally advisable to register your images with the copyright office, so when you are in this situation you have a better chance of winning if there is a lawsuit.
      [209.85.173.104]

  17. Altdotweb says:

    The idea is not original.

    The photo seems to have little orchestration beyond a point-and-shoot effort.

    Have I missed anything?

  18. OminousG says:

    Anyone who thinks the Jag was the first post it note car is an idiot.
    Thats like saying Collegehumor owns all future college pranks.

    3M was having fun, and some pusy cry baby got offended.

    • BoomerFive says:

      @OminousG: That’s not the point, the point is that it is the pic that went viral. It has nothing to do with “first”.

      • OminousG says:

        @BoomerFive:
        The pic got famous, and?

        3M tried to contact the pic owner, and from a business point of view that guy wasn’t worth it.

        So, like all the post it note jokes before and after the Jag, 3M did their own. With their own product.

        • crackers says:

          @OminousG: “So, like all the post it note jokes before and after the Jag, 3M did their own. With their own product.”

          In a style remarkably similar to the photo they attempted to lease for well below market value.

          They could have just as easily created a unique post-it covered car by changing the pattern of post-its completely – all one color, multiple colors mixed throughout, stripes, whatever. There’s no reason, really, for them to copy the “style” of Scott’s car, other than lack of originality on their part.

        • BoomerFive says:

          @OminousG: They did their own that looks exactly like the viral one. I see what you are saying, you are just wrong.

          • OminousG says:

            @BoomerFive:
            Guess you haven’t done a google search then to see how many other designs the Jag copied.

            Or should 3M pay everyone that used there products in a stunt? Honestly, think first, post second.

  19. BoomerFive says:

    Licensing the idea = “Hey, we think it’s cool too!”

    Ripping off the idea = “We are completely lame money grabbers who are too cheap to spend 2 grand”

  20. majortom1029 says:

    First off. IF they are using a 3m property to make money shouldnt 3m be able to use the photo for free since they didnt ask 3m’s permission to use the sticky notes to make money?

    • @majortom1029:

      Yes. In fact, as you know, most clothing manufacturers can use almost every photo ever taken for free. If Gap, for example, can identify one of their garments in a New York Times photo, then they own the photo and can send a bill to the Times for whatever they want.

      This is know as the Heckle vs. Jeckle decision of 1919 in which Tom Heckle took a photo of Times Square and accidentally captured a photo of a Ford automobile. Ford sued Kodak for $6,000 (nearly all of the money in the world at the time) and the judge declared that all cameras must include a warning that you must get permission of anyone who ever manufactured any product in your photo.

      As per the decision this does not apply if your camera is on a three-legged stick, which inspired Tom Tripod to invent his automatic photographic implement trice-balancing and cantilevering mount and scrub brush – what later became simply referred to as a “tripod”.

      I hope this answers your questions.

  21. I’m afraid I’m going to have to also be a “Waste of Paper” Killjoy.

    This went “Viral”? I’ve never seen it, and frankly that was my first thought looking at the photo. I can think of a dozen better (harmless) pranks that won’t use perfectly good unused post-its.

    That said it is rather uncouth of 3M to just walk with this guys idea. A reasonable licensing offer would not have been inappropriate.

  22. OminousG says:

    god, i wish this place had an edit button

  23. bagumpity says:

    Sleazy yes, infringement no. And as for sleazy, you should realize that even the smallest of expenditures can be difficult to justify to management. On a prior job, I spent weeks begging and pleading to get a $700 purchase approved for something simple, widely available and well-known to work. Instead, we had to develop the product ourselves, costing around two months’ worth of time for a team of three engineers. IRONY: I presented it as a case study for my “six sigma” certification, and the purchasing director who went out of his way to block the acquisition actually came up to me and congratulated me on “finding new ways of saving the company money.”

    • Reeve says:

      @bagumpity: @Kori Bustard:
      I am not saying it is for sure infringement but there is certainly case law which indicates that if you take a photo and restage it to look exactly the same or almost exactly the same as another photo it is infringement. It in fact may be considered a derivative work. It is not clear that this is the case here but there is certainly a plausible non-laughable argument that this is copyright infringement.

  24. Kori Bustard says:

    Glancing at this for the first time, I suppose I don’t know all the issues involved but it looks like 3M underestimated the medium, and this is clearly a huge PR blunder. It doesn’t strike me as copyright infringement. You can’t copyright Ideas, only their Expression.)

    So they tried to mimic being “authentic” when they could have avoided all this ill will by simply embracing the original viral piece. Instead they got the wrong kind of buzz over something completely trivial — a few thousand bucks, tops?

    I’m glad the Not Invented Here Syndrome seems to be much reduced on the web, but the We Totally Invented This Don’t You Believe Us Syndrome is a problem, too.

  25. lihtox says:

    Just food for thought: the intellectual property isn’t the photo, it’s the CAR, which is something like a sculpture (a 3D art installation). Sculptures can be copyrighted, and simply changing the colors won’t avoid that.

    I’m not saying it is or it isn’t infringement, but I think the car might be more than just an “idea”.

  26. crackblind says:

    Isn’t this similar to what happened to Tom Waits? Both GM & Volkswagon approached him to do an ad. when he said no, they hired a sound alike. He sued and won both times.

    I think the problem with 3M here is not that they simply copied the idea, but that they first approached the person who owned the photo, acknowledging that they knew about it and wanted to use it, then copied it without paying like they originally offered to.

    • Tiber says:

      @crackblind: I’d never heard of this, so I wikipedia’d it. These suits aren’t mentioned, but he won 3 other unique cases of the same nature. You’d think at some point, somebody would realize that this is not the guy you copy from.

      @Corporate_guy: I can see your point, but the idea of posting it online was his work. To my knowledge, nobody else thought to post it online, and anyone could have. And how is it any better for a company to make thousands of dollars with something based off of something made famous by random people online?

      I don’t know enough about art plagiarizing laws to say how legal it is, but it seems clear that 3M was trying to imitate it as closely as possible, enough that people who hadn’t seen the original in a while mistake it as the same thing. If not, they could have easily used, say, a truck, or some other pattern. I think the fact that they approached him ahead of time, based on similar cases, is what would be the smoking gun if he did indeed win. The intent to copy an idea is what can tip the scales, and 3M has admitted to it.

  27. lordargent says:

    This looks like an exact ripoff, but

    haven’t people been covering cars with post its for decades as practical jokes?

  28. Corporate_guy says:

    Why is no one criticizing the guy for trying to make thousands of dollars on a picture made famous by random people online who get nothing for it? And yes he took a photo, but the post-it car wasn’t his idea, nor did he do all the work putting the post-its on the car.
    3M said they can make their own shot for 500-750. That means the value of the image was probably less than 500. Because if 3M recreated it, they would have extra control with the image quality, angles, car, colors, etc.
    I think 3M was very generous to offer the full price of recreating the photo to a guy who spent no money or extra time on taking the original photo.
    The guy was naive to think a photo he took of other peoples work was worth more than the cost of taking another photo. Make no mistake, the idea of covering the car was not the photographers. He doesn’t deserve any compensation for the idea. And I don’t think it’s appropriate for him to make thousands on something made famous by random people online linking to and reposting his photo for free.

  29. QrazyQat says:

    Isn’t this similar to what happened to Tom Waits? Both GM & Volkswagon approached him to do an ad. when he said no, they hired a sound alike. He sued and won both times.

    And Huey Lewis with the Ghostbusters theme.

    3M makes a couple thousand in profits like every 17 seconds. They couldn’t afford less than a half minutes’ profits? They’ll be paying out way more than that in legal fees in a few hours of discussions over this before they even get to court. Very stupid for a company which is often smart.

  30. itmustbeken says:

    $2000 for a campaign as large as 3M’s?

    WOW.
    If 3M went to Getty Images and tried to by the stock rights for that shot, pricing would start at $7,000 and work its way up by region.

    This is just 3M’s marketing morons being cheap and thinking they are dealing with idiots. Jokes on you 3M.

  31. jimv2000 says:

    I would imagine that by posting this picture around the internet and not charging royalties, this guy lost any claim to copyright that he might have had. You do have to defend it to keep it.

  32. Geekybiker says:

    The 3m photo intentionally is trying to capitalize on the popularity of another photo that they deliberately tried to copy. Its not just that Its similar or not. Its that the original is somewhat famous, and they made it known that they wanted the original. Copyright isn’t always about things be identical. Its about being substantially similar, likelihood of confusion, and damage to the original owner of the copyright.

  33. jecowa says:

    that’s pretty. i want to decorate my car in post-it-notes too.

  34. mariospants says:

    I guess sweet justice would be for the original photographer to sell his images to a competitor who would be entitled to use said images in a counter-ad. Seeing as how post-it-note sedans are just so generically run-of-the-mill.

    Seriously, 3M, could you not have done a small plane, or a motorcycle or a dog house or something NOT a car? It’s pathetic that you’d run a national campaign about creativity and exhibit complete lack of said on your own part.

  35. edosan says:

    This just proves that “intellectual property” only applies to big corporations, not to the little guy.

  36. blue_j says:

    Oh now -this- is interesting:

    The YouTube Video for of the ‘new’ Post-it car had accumulated a lot of negative comments over the last couple of days. (Most of them just more-or-less “Ripoff! You suck!”). I added my voice to the fray earlier today. I just checked the page to see if any interesting replies had been posted and, what-do-you-know: All the negative comments are gone. :)

    Hardly surprising. I mean, if whoever behind this is naive enough to think they can get away with swiping a popular idea and for a viral marketing campaign without getting caught.. they’ll probably think they can keep it a secret if they just keep deleting comments.

    I wish I took a screenshot of the page eariler. Oh well. My own negative comment is included below:

    Rating a 1. Not because of the blatant rip-off of Ableman’s photos (He admitted he wasn’t the brainchild, just the photographer)

    Not rating a 1 for the sheer gall of trying to start a viral, user-generated campaign by swiping users’ ideas and passing them off as orginal.

    This gets a 1 because it is astroturfing. This is a 3M-promoting video created by 3M employees for a 3M marketing campaign posted on a 3M-controlled account.. It’s an advertisement. Nothing more.

    Why try to hide it, 3M?

    Youtube video:

  37. bec312 says:

    I worked for 3M so in a sense I have an insiders view on the situation. I was merely a summer temp so don’t think I’m overly loyal, but they are a great company to work for. The Post-It note is their product and therefor they can do what they please with it. Remember, 3M is not an art company, it is a glue/chemical/medical company…not a lot of artistic creativity so when they see an idea like this with their product, it is more flattery than anything. I think using the original person’s would be lauded as lazy and uncreative as well so they are damned if they do damned if they don’t. I would hope people don’t lose faith in the 3M product over one ad campaign. At least they aren’t trying to screw over their customers………

  38. madog says:

    These guys need to get their legal council ready…

    [www.collegehumor.com]

  39. jonathanl says:

    I am an amateur photographer and have licensed some photos, but I’m sorry I just don’t see it quite the same way…

    Photographer takes photos of somebody else’s concept.
    Photographer offered money for photos.
    Photographer tries to negotiate more money for photos
    Buyer decides photographer is too expensive.
    Photographer is all pissy because he didn’t get the windfall he hoped.

    You get premium prices for things that are difficult or impossible to replace. You get $750-$1000 for interesting things that can be replicated.

    As for the claim on the original post:

    “The copied work is for commercial gain: Check”

    They didn’t copy the work, the copied the IDEA. Ideas are NOT subject to copyright protection, and don;t even start on patents, if somebody tried to patent this people would be screaming about frivolous patents limiting innovation (and they would be right!)

    In short, I feel bad for the guy, and it is too bad he didn’t get paid, but I don’t think 3M really didn’t anything wrong.

    Please flame me now :(

  40. OrenNuddles says:

    It appears to me that the issue is not JUST the photo.

    Corporations either simply have ignored social media and they do not understand the reach the ‘viral’ photo had already gained. Social media is used by women. Women are responsible the for majority of office supplies and household purchases.

    If the employee offering under $1000 for the exclusive rights to an already viral photo and concept for their social media campaigns AND instore displays doesn’t understand the value of the photo then she needs to head online and learn a bit about social media as a marketing and PR tool for corporations.

    IN my opinion, from a PR point of view 3M needs to acknowledge their mistake and negotiate fair compensation for the image and piggy backing on an already viral idea and photo.

    If this goes to court I am SURE there are many social media experts (that other large corporations pay thousands of dollars to for their knowledge) who would stand up in court and explain the monetary value of such campaigns to a judge.