Where’s the line between theft and coincidence in similar creative ideas?
Recently, some ad veterans were noticing, and lamenting, the similarities between this Nike ad from 1995 and this Kaiser Permanente ad that ran during the recent summer Olympics.
Yes, the two commercials have much in common. And the Kaiser ad is many degrees inferior to the Nike spot.
For those of you who weren’t in this business 20 years ago, it’s hard to overstate how admired, lauded, and inspirational the Nike “If You Let Me Play” ad was. Not just to its intended audience, but to the ad industry as a whole. It’s one of the ads that made me want to get into the business and attempt to do that caliber of work.
So for advertising people of a certain generation, alarm bells went off when watching the Kaiser spot. Was it a blatant rip-off? A heartfelt homage? A mere coincidence?
I don’t claim to know how this happened. But I’ve been in advertising long enough to know that ad ideas often share attributes with work that’s been previously done.
I’m not interested in assigning blame here. I’m much more interested in the nuances of the decision-making process involved. Because it’s a window into the current state of creativity in advertising and marketing.
Did somebody know about the similarities in the KP spot before it got filmed? By “somebody” I mean anyone including the creative team, their Creative Directors, AE’s, agency management, producers, directors, and all the associated layers of client marketers.
There are only three basic scenarios to explain what happened:
1) Somebody knew there was a similarity and didn’t speak up.
It’s a TV spot running during the Olympics. There’s a lot at stake for all involved. “Let’s hope no one really notices” is a quiet thought in the minds of many ad professionals when they’re pursuing an idea that could backfire.
Someone could’ve also noticed similarities a little further down the timeline — after concepts were approved, budgets were determined, and the production hairball began rolling down the mountain. Is it better to remain silent than be the voice that derails a major project? You try putting on the brakes with millions of dollars involved. It’s not easy.
2) Somebody knew there was a similarity and did, in vain, speak up.
“You know, that idea kind of reminds me of…” I’ve heard that a bunch. I’ve said it sometimes, too. That kind of reservation can fall on deaf ears. Perhaps a less forceful team member who voiced objections was slapped down and told to shut up. Don’t underestimate the collective power of a bunch of people in a conference room to justify bad decisions or pretend the elephant in the room doesn’t really exist.
And don’t underestimate the power of a C-level client executive to say, “You know, I’d love to do a spot like this one,” as he or she sends YouTube links out to underlings and the agency. For client-side marketers, their careers go merrily on even when encouraging or approving derivative advertising.
Faced with a similar situation, many people in our business would state out loud that they don’t care if a proposed ad resembled an older one. Think of how it easily it could be justified: A change in target audience, or product category, could be enough differentiation in their eyes. It’s no wonder our industry’s code of ethics would fit on a Post-it note.
3) Nobody knew there was a similarity.
Were the entire team of agency and client folks working on the KP ad simply unaware of the Nike spot? It might sound far-fetched, but yes, it’s possible.
I’ve taught aspiring copywriters who knew next to nothing about the ad industry and its history. Hell, they didn’t even watch “Mad Men.” And don’t assume that junior creatives have ever perused the dusty copies of CA and One Show annuals that line the bookshelves in the remote corners of agencies.
Plus, our digital world has left old-school advertising uncataloged. While YouTube is a good repository of many old commercials, there’s no organization to it. And good luck trying to find hi-res images of old print ads the ad world used to celebrate.
Many people currently working in advertising and marketing simply don’t bother to learn about anything that was produced even a few years ago. If they do learn, the old work isn’t considered so sacrosanct that it couldn’t be copied in some regard.
And there are, of course, degrees of rip-off: A copy line, unique visual, commercial plot, app idea, or just a style, film technique, or strategy. Some people merely look at ads from today and no matter how small the detail, it reminds them of some ad long forgotten by much of the world. This doesn’t just happen in advertising. All art forms have this type of conflict. Just ask Chuck Berry.
We’re also in an era in which many new marketing firms have popped up — content marketing firms, consultancies, digital and social media companies, etc. — whose leaders regularly disdain the very idea of “advertising” and declare that it’s dead. For them, even a vaunted Nike ad isn’t a sacred cow.
So what happens now with this particular Kaiser Permanente spot? A whole lot of nothing, that’s what. Other than the kangaroo court of judgy advertising insiders, there is no real punishment for ripping off someone else’s advertising unless there’s a legitimate copyright issue. And those are rare.
Unfortunately, there will never be a consensus as to what’s a rip-off or what’s fair game for appropriation. Crying foul will only generate crocodile tears. So we’ll continue to see new work that feels familiar or derivative. Even if it means producing a commercial that recalls a great Nike spot.
Because some people just get away with it when they just do it.
Since 2002, Dan Goldgeier has been writing the most provocative advertising columns about advertising and marketing -- over 170 of them, covering every related topic you can think of. Now based in Seattle, Dan is a copywriter and ad school graduate who's worked at shops big and small.
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