When is creative “inspiration” a case of intellectual theft?

Note: Contains Flash video embeds. Sorry, Apple device users.

Adblogger “Dabitch” of Adland posted an interesting discussion topic about creativity today. Apparently JibJab, the guys who create all those funny viral Flash animations, are suing Toyota for copyright infringement over this ad:

JibJab cites two original works that they feel are ripped off here:

Personalize funny videos and birthday eCards at JibJab!

Bush and Cheney Tap Dance by JibJab

From Adland: The complaint reads that the Toyota presidents sale graphic style is far too similar to JibJabs own logo – or “nearly identical”. And the animation “incorporated elements identical and/or substantially indistinguishable from” Jibajabs animations “Presidents Rap” and Starring You Tap Dance, both of which are registered with the United States copyright office.

First of all, let’s look at the stylistic issue.

Copycatting is one of the biggest taboos in the creative world. We like to fool ourselves into believing that we are capable of absolute original thought each time we embark on another creative development session. But human minds don’t really work that way. We are intellectual recyclers — constantly absorbing, internalizing and synthesizing the work of others. Two famous quotes summarize my opinion on this:

What has been will be again,
what has been done will be done again;
there is nothing new under the sun.
– Ecclesiastes 1:9

If I have seen further it is only by standing on the shoulders of giants.
– Sir Isaac Newton

If the writers of the Old Testament already realized that we keep coming up with similar ideas over and over again, and one of history’s greatest thinkers acknowledges his sources, then I think we can come off our pedestal and admit that we all have our influences. Every creative idea contains the DNA of many other people’s thoughts. But is this a case of illegal cloning?

There is a big difference between reproducing (to overkill my biological metaphor) and copying. For example, you can be a big fan of Tom Waits‘ raw vocal style, and want to incorporate a similar poetic style to your copy, (or junkyard musical sound to your jingle) but hiring an impersonator for your ads is foul ball. And he will sue and win.

Is the same true of distinctive illustration or animation styles? I can’t recall all the times I’ve seen Terry Gilliam‘s animated style of manipulating cut-out vintage illustrations from his Monty Python days “paid tribute to” in ads. But as far as I know, he’s never bothered to sue any of his imitative flatterers.

In my (non-lawyer) opinion, the difference is in whether the public could reasonably assume that the original artist had done the work. In Tom Waits’ case, the boldface copy hurts the reputation of an artist who has always refused to license his work to advertisers. In Gilliam’s case, he had already moved on from a style that nobody else could really recreate. It was always an obvious homage.

Back to JibJab. I believe that the Toyota ad itself is different enough to be simply inspired by JibJab, as well as other similar artists. As a creative, I don’t see theft in the main body of the ad. And the plagiarism is plausibly deniable.

Until the signoff:

That’s bad. Really bad. And for needlessly copying the JibJab animated logo, agency Hoffman Lewis was as foolhardy as criminals who post their confessions on Facebook.

**gavel tap**


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