Anarchy in the UK as marketers go punk over rights

The recent Paddy Power campaign is a case in point. It commissioned a photoshopped picture of the prime minister Theresa May and DUP leader Arlene Foster going for a kiss.

The British press refused to touch it, presumably deeming the image to be in bad taste and potentially actionable. But that was the point.

The result? A knockout win for Paddy Power.

Modern marketers are putting two fingers up to legal convention as they draw on the familiar to fashion their fresh fantasies.

This approach is punk, pure and simple. True marketing punks deliberately run the risk of being sued by running roughshod through copyright law.

After all, the ‘fair dealing’ exemption is pretty wooly and who has the time in this fast-moving internet world to seek permissions left, right and centre anyway?

Punk’s whole point was rebellion – knowing what the law is and deliberately flouting it. Its ultimate goal was to abolish capitalism.

Ironic, then, when BrewDog, the creators of Punk IPA, threatened a Leeds bar called Draft Punk, a play on Daft Punk, with legal action for using the P word because the brewery has trademarked it for beer.

And this from the company whose co-founders James Watt and Martin Dickie both legally changed their names to Elvis a few years back in defiant response to a threat of legal action from rock legend’s estate over BrewDog’s Elvis Juice beer.

The company wrote at the time: “Here at BrewDog we don’t take too kindly to petty pen pushers attempting to make a fast buck by discrediting our good name under the guise of copyright infringement."

Such faux punkery was too much for entrepreneur and son-of-punk Joe Corré who has called time on the brewery’s antics, saying: “You can’t own punk, that’s the whole point."

Anarchy rules in punk marketing, and as the punk marketers push the boundaries, the laws are changing to accommodate them.

In the UK, copyright law has been updated to allow for fast past internet usage. You no longer have to ask permission to use an image, or short clip of music or video to create a meme.

Parody and humour can be your friends, but this area is still a minefield.

When North Korean leader Kim Jong-un heard about west London hairdresser Karim Nabbach using his image to offer a discount to anyone having a bad hair day, fur flew. North Korean officials were quick to demand Nabbach’s poster be taken down as it went viral around the world.

Yet another legal issue arose from this: how can you possibly keep your beady eye on everything on the internet? No lawyer can possibly know every image and how it may affect a country.

The internet is like the wild west. The gloves are off as everyone fights for their stake in the new frontier. You might even get away with murder. Figuratively speaking, of course.

Images are appropriated for art all the time, and no one asks permission. In a world where image rights and fair dealing exemptions are seen as a bit hit and miss, why not just go for it and take the hit if you transgress?

In Copyright and Piracy: An Interdisciplinary Critique, Lionel Bently shows how Damien Hirst has been both threatened with proceedings for breach of copyright and successfully sued.

Hirst is wealthy and successful enough not to care whether he becomes a sacrificial lamb – suspended in formaldehyde, of course.

Today, parody and humour have found a new home on the internet. Content producers flout the law with an avalanche of appropriated work, invoking the Digital Millennium Copyright Act over and over to avoid prosecution.

The owner of copyright.

Under the notice and takedown provision of the act, it is perfectly legal for users to post content that’s not their own. It’s legal even when the copyright holder already has filed a takedown notice, just so long as a different user posts the work.

In 2016, Google received about 2 million takedown notices every day, according to the Silicon Valley Business Journal.

Image rights are becoming big business as celebrities seek to control their brand and capitalise on their fame. That means it’s become a hot potato with HMRC, too. They’ve been investigating footballers recently – 43 players, 12 clubs and eight agents – by looking into their earnings from selling such rights.

The photographer who takes the photo of a celebrity generally owns the copyright, not the celebrity subject who appears in it. And if that picture was shot in a public place, the photographer can use it where they please.

Rihanna, who sued Topshop in 2015 for using an image of her on one of their t-shirts, didn't win becuase they had infringed copyright, she won because her legal team proved Topshop were guilty of 'passing off', taking unfair advantage of their previous association for commercial gain and because the photo used was very similar to the one used to promote her album Talk That Talk.

Even Madonna, queen of image control, appears to be powerless to prevent Universal from producing a new feature film about her life called Blond Ambition.

The singer said: “Only I can tell my story. Nobody knows what I know and what I have seen. Anyone else who tries is a charlatan and a fool.” But artistic freedom rules mean Universal is not breaching any image rights with its 90-minute biopic. Once you’re in the public eye you can consider yourself fair game and the lines between decency, taste and respect are constantly crossed.

Madonna is no stranger to any of that and should be able to shoulder any slights, but not everyone can brush off the slings and arrows of celebrity, especially when dealt through parody and humour.

Politicians are also not exempt. The former Liberal Party leader David Steel’s wife Judith says Spitting Image’s caricature of him as a tiny pipsqueak sitting in David Owen’s top pocket "almost fatally wounded" him and destroyed his political career.

Could “wee David” have sued for defamation? Maybe, but at what cost?

In the US, where litigation is a way of life, Robin Thicke and Pharrell Williams were floored in a copyright shootout over their hit Blurred Lines, a homage to Marvin Gaye.

The soul legend was given a posthumous writing credit and his family awarded $7.4m in damages for copyright infringement.

When it comes to image rights and artistic licence, there’s no black and white, only a blurring of the lines as the marketing frontiersmen rewrite the rules.

Bang On to Richard on email richard.hillgrove@6hillgrove.com and Twitter @6hillgrove