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)
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Comments:
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.
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.
::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.
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.
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.
Why can't people get the concept of "intellectual property rights?"
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?
@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.
@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.
Waste of Paper.
I agree with the AngrySicilian.
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.
I agree with the AngrySicilian
Hmm... it posted twice... I guess I really do agree!
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.
@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.
@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.
@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.
Can you fix the thumbnail for this article on the main page?
It's doing an in-browser quick-and-dirty resize, which looks AWFUL.
@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)
@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?
@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."
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.
@The_IT_Crone: Don't you get it. Intellectual Property rights only apply when it's the small people abusing Big Corp IP rights.
@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.
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.
@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]
The idea is not original.
The photo seems to have little orchestration beyond a point-and-shoot effort.
Have I missed anything?
@Consumerist-Moderator-Roz: Actually Roz, if you fix my improperly-closed <i> tag after the first word "what", the problem will go away. Sorry about that.
@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.
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.
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"
@OminousG: That's not the point, the point is that it is the pic that went viral. It has nothing to do with "first".
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?
@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.
@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."
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.
@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...
@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.
@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.
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.
@RStewie: Copyright is granted upon the moment of creation. Trademarking requires forms and fees, but copyright is automatic.
@OminousG: They did their own that looks exactly like the viral one. I see what you are saying, you are just wrong.
@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.
god, i wish this place had an edit button
@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).
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?