How could it happen? Leo Burnett and the charity plagiarism row

Jason Stone brings us the inside track on the Leo Burnett row, after the ad agency was accused of copying a charity film.

Jason Stone

Asylum Films's decision to go public in a dispute with Leo Burnett about a film made for McDonald's charity foundation has created quite a stir.

In an open letter to Leo Burnett's Head of TV, Ben Falk alleged that Asylum's "work and creative content has been copied and reused, without any consultation or recognition".

Falk only became aware that his film had been remade by the agency when Leo Burnett launched their new version with a fanfare of publicity earlier this week.

Asylum had delivered their film for less than £5,000. There was no chance of making money on the job but small companies frequently provide work for advertising agencies on this basis in the hope they'll be considered for work with proper budgets that will make them money. Falk was baffled when he discovered that Leo Burnett had remade the film and he was "wounded and hurt" they'd done so without consulting him.

After attempts to tackle Leo Burnett privately came to nothing, Falk decided that his best option was to make his grievances public.

The response was extraordinary. Falk describes himself as "humbled" by expressions of support from across the industry and says he's been inundated by messages from other production companies revealing how they've been stung in similar fashion.

More pertinently, within twenty minutes of publishing his open letter Falk received a phone call from Paul Lawson - Leo Burnett's Chief Executive Officer – whom he described as friendly, helpful and constructive. Falk has been told that a meeting early next week will determine the agency's next move but it's already clear to him that Leo Burnett are "trying to do the right thing."

Having spoken to someone at Blac Ionica - who made the second film - Falk is aware that no-one at Leo Burnett showed them his film. However Blac Ionica came across it themselves online and drew it to the attention of the agency. A contrite member of Leo Burnett's TV department who worked on the second film, later told Falk that "we forgot to call you."

Falk has also been contacted by a number of lawyers keen to help him litigate. He has rebuffed their approaches because he doesn't "want to be the aggressor".

Precedent suggests that litigation would not be a fruitful move. When Mehdi Norowzian took on the might of Guinness in the mid-1990s, he learned to his cost that it's immensely difficult to demonstrate that copyright has been breached when your dispute hinges on the look and feel of a film... and his case was a good deal stronger than any Asylum could hope to bring before the courts.

But perhaps the really interesting dimension of this dispute is the pace at which it is being dealt with. Falk's decision to go public has unquestionably galvanised Leo Burnett into action and even if they've primarily acted to protect their reputation, their willingness to engage and seek an equitable solution is much more likely to provide a good outcome for Asylum than if the production company had kept their grievances quiet. Such is the power of social media.

Falk says that there's "not a chance" that he would have been contacted by senior executives at Leo Burnett if he hadn't opted to go public and he's hoping that his "kick at the hornet's nest" will remind advertising agencies to behave more responsibly in future.

Ben Falk has "no regrets" and when asked whether he'd recommend the same course for other companies faced by a similar predicament, he said: "I think so, yes. But only because we've had such a positive response".

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