I Wish I'd Thought of That – Creativity Versus Theft

I-Wish-Id-Thought-Of-Thatby John Pellegrini

What kind of creative person are you? Are you the type who sees, reads, or hears a performance, and says, “Wow that was so good, I wish I’d thought of the idea”? If you are, that’s fantastic. This means you appreciate the creative process that leads to great concepts. You may even find yourself being influenced by performances or written pieces, and attempt to emulate or mimic those ideas into your own work. And here is where we find the subject for this month’s rant, friends.

There is a fine line between admiration of a performance, emulation of a style, and outright theft. Unfortunately, as we are witnessing more and more on the RAP Cassette and elsewhere, that fine line is starting to get erased entirely. The danger with this is more and more artists are discovering that their work is being stolen, and more and more artists are taking legal measures to bring the theft of their works into the courts of the world to stop these practices. If you don’t wish to find yourself on the receiving end of one of these expensive lawsuits, then read on.

I’m not a lawyer, nor do I play one on TV. However, I do have a common sense approach to creativity, along with some simple questions you can ask of your work each time, that can help you see whether or not something you’re doing will get you in trouble.

And before we get any further, we must emphasize the following key point. Just because you work in Goat Boil, Montana, or B-F Arkansas, and your station’s signal isn’t even powerful enough to get past the parking lot on a windy day, doesn’t mean you won’t ever be heard by those who could turn you in to the proper authorities. Just like blowing through a red light at 3 a.m., you might get away with it once, but I wouldn’t count on it more than once.

First off, let’s attempt to define the creative process as far as how the court system will view it, should you find yourself receiving an invitation to visit one in the near future. Here’s what you cannot do: 1) Word for word copying. 2) Use of character or title names. 3) Use of likeness of character or story lines. We’ll cover all three in the next paragraphs. Incidentally, music is also a problem, but we’ve already covered music theft extensively in previous RAPs, so please consult those back-issues for reference.

Our first example is word for word copying. We’ve had some recent examples of word for word copying on the RAP Cassette, and I’ve heard a few spots myself from other sources guilty of this crime. Yes, it is a crime; it’s called “theft,” and it is a punishable offense. What happens is, a national advertiser pays for a commercial, and you or someone you know thinks that commercial is so good, that you, or they, create a word for word copy of the commercial for another client altogether, sometimes for a completely different product. However, sometimes the commercial is created for a business that is in direct competition with the original. We tend to see these examples primarily in the small markets. Whether it’s from inexperience or stupidity, or just plain laziness, small market advertisers are ripping off lots of big national advertisers. For many years this practice occurred without any retribution, but that’s all changing, and for two reasons. The first one being that the world is getting smaller, and many small market cities are starting to become travel destinations, which means large market advertisers are finding out about the thefts of their work by simply being there. The other reason is the Internet. More and more stations are on the Internet, which means those ripped off commercials are being heard in much larger markets.

Many times, I hear the common remark from the people who are doing the rip-offs, “so what if I’m ripping off a spot? If I get caught, it’s no big deal.” Wanna bet? Even if you do get away with constantly stealing commercial ideas, trust me, your career is past being in the toilet and is well down into the septic tank. I have never in my entire life ever met anyone who did nothing but steal ideas that has ever put together any kind of a future for themselves in this business. And I can confidentially state that I never will. Think about it this way, if your demo is full of nothing but stolen ideas, and you’re sending your demo out to larger markets whose programmers have likely heard the original sources of those stolen ideas, or may even have been the source of those original ideas, do you think you have any chance of being hired? If you’ve answered yes, then you’re an even bigger idiot than your worst enemy already thinks you are. I won’t apologize for the bluntness of that last statement, because it’s true. You haven’t got a chance in this business, and you have no right to even think you do, if your demo is nothing but stolen ideas. Save yourself the humiliation, and get out now!

Okay, so we’ve gotten rid of the idiot approach to creativity. There is another problem area that is often interpreted as theft. It’s the second of my three examples, the use of character or title names. In this case, the persons guilty of this offense are usually very creative people, and are just unaware of what they’re doing wrong. They’re not stupid, like the above example, they’re just careless. Here’s how it works, and I’ll even use an example that actually happened. Indiana Jones for a time, was the character most ripped-off, or emulated, or impersonated in commercials. This is amazing to me, because it is well known that Stephen Spielberg is relentless and ruthless when it comes to suing people who use even a remote likeness of any of his characters. The classic example occurred a number of years ago, when a large Midwest furniture store chain used an Indiana Jones type character in its commercial. The commercial was so well done, it won a Clio. Then, Spielberg’s production company sued the agency for so much money that it was forced into bankruptcy. The furniture store chain is still around, but the agency wound up being bought out by a competitor just to stay afloat. The commercial has never aired since then.

Sometimes even if you remotely hint at a character, or movie name, you’re crossing the line. The furniture store spot never even mentioned the name of the character; all they had was a guy wearing an Indiana Jones style hat and leather bomber jacket. That alone was enough for a lawsuit. By the way, I’m not even sure what the outcome of the lawsuit was; the agency went bankrupt because it couldn’t afford the cost of defending itself in court (and this was a fairly large agency at the time, in a major market).

Always remember one of the most important points about ripping off ideas: If you rip off something widely popular and successful, it is very likely that the ones you rip off will have far more money than you will for court cases. And, in lawsuits of this nature, the plaintiff’s lawyers take a share of the winnings for their pay, whereas your defense lawyers will charge you by the hour, no matter how many hours it takes. So if you’re planning on ripping off an idea for a commercial, the number one question you must ask yourself is, how much money can you afford to lose in legal fees?

I have heard spots that actually name characters of famous movies, and I can tell for a fact that these characters were stolen. The defense usually given for these practices is “hey, we’re helping to promote the movie, book, TV show, whatever, that we got the idea from.” Guess what, Sparky? That defense doesn’t work for stolen music, either. Promotion of the source is the right of the source, and not yours. Unless Stephen Spielberg, or whomever you’re ripping off, called you personally and asked you to use his characters in your lame spot for the local business involved, you have no right to use any of it, no matter what you claim. Insanity defenses don’t work here, either. The only example of when you may do so is if the client has paid for the right to use the name, or character, or story.

The third example is use of likeness or story lines. This one is trickier to determine, and it all depends upon how far you go. The above example of the furniture store detailed how just showing a similar character can lead to trouble. However, this was done in a spot that ran semi-nationally and won an international award with lots of hoopla. But what about a spot you wrote that features a Twilight Zone setting, although you don’t use the music, or mention the name of the show, and you only have a crappy Rod Serling impersonator? Well, this is a difficult to define gray area, and unfortunately for you, you don’t have any control over whether the owner of the rights to Rod Serling’s intellectual property thinks your guilty of theft or not.

You see, in these kinds of cases, the theft is determined by the one who’s being ripped off. If the owners of the rights to the movie, TV show, book, or song that you stole from decide that your work has harmed them, then you’re the schmuck who has to prove you’re innocent. And the legal cost of that proof is entirely yours, whether you win your case or not. By the way, here’s a great time to mention that it’s almost unheard of in these cases for the defendant (i.e. you) ending up winning the case.

Here’s how you can avoid these situations: DON’T STEAL! There is nothing less creative than a stolen idea. There is nothing less effective or interesting than a poorly done imitation. No matter how great at impersonations Rich Little is, he still has never been as good as the originals, and he’s way better than you’ll ever be at impersonating people. Rip-offs of the Twilight Zone or Dragnet are nothing more than stupid, and they wind up associating the client with stupidity. Is this how you want your work, as well as your client’s reputation, to be perceived? Would you be proud to be known throughout the industry as the idiot that rips-off all his or her ideas and gets into loads of legal trouble? As the person who causes nothing but problems for every company he or she works for because you steal all your ideas? We work in a very tight little industry whose leaders all know each other. Do you think you’ll have much of a future with that kind of reputation? Do you need to be told the answer?

If you are truly a fan of someone’s work, then the proper and only acceptable compliment of his or her work is to let it inspire you to come up with something NEW. Something different. Stephen Spielberg and his writing team loved the Wizard of Oz so much that they came up with ET, the Wizard of Oz in reverse. George Lucas loved the old Flash Gordon film serials so much, as well as the old Westerns, that he came up with Star Wars. However, nine times out of ten, whenever Hollywood tries to do an exact remake of an old movie, they wind up failing miserably. Ask yourself, if Hollywood, with all its money and talent, fails miserably with every remake, how can I expect to do better when I remake or imitate something? If you can answer that question successfully, the way Lucas and Spielberg did, you’re going to make millions. But if you can’t, then you’ll never be more than third rate, and quite possibly in a lot of legal trouble. Also, it’s important to remember that Hollywood movie studios can do remakes of old movies because they OWN the old movies. Owning a videotape or DVD copy of the movie does not entitle you to do the same. Even Stan Freberg and Weird Al Yankovic must obtain permission when they do their song parodies. Besides, Dragnet and the Twilight Zone imitations in commercials are nothing more than stupid.

So, instead of relying on theft to bring creativity to your work, and ruin to your career chances, why not utilize that wonderful device you have inside your own brain called, imagination? You just might surprise yourself at what you dream up all on your own. If you must start with other ideas, at least don’t steal, but allow the originals to inspire you to come up with something else even better. There’s nothing wrong with using a genre or a style of story, such as the hard-boiled detective, but don’t rip-off The Maltese Falcon or Dragnet every time you write a spot. Come up with something different and original, and you’ll never doubt your own talent again. Good luck!

P.S. I know some clients insist on word for word rip-offs of movies or TV shows, and I’m always getting questions regarding what to do about them. Many of these idiot clients won’t take no for an answer, and if you try to refuse, they threaten to pull their schedule. This is the result of a lousy Account Executive who isn’t strong enough or smart enough to kick the client in the ass to begin with. However, what you can do, as a Production Director in this type of situation, is quietly and secretly turn in the client by furnishing a cassette copy of the spot to the people who own the original. Is this ethical? Yes, after all, it’s the client who’s being unethical. Will you or your station get in trouble? Unlikely, especially if you prove that the client forced the idea on you. Will you get in trouble with your boss or GM or GSM for doing this? If you do, then you really should question whether you want to be working for a business that prefers to make its money through promoting theft of creativity. Because they’re not a very smart or stable group of people, either.