Recently, a new Verizon commercial caught my eye. Perhaps you’ve seen it:
This immediately reminded me of a circa 1993 (has it really been that long?) De Beers commercial (seen here). Apparently, this is one of at least two Verizon commercials intended to “spoof” some of the classic, well-known commercials from our past. My immediate reaction, to these commercials was to start brainstorming all of the conceivable bases on which Verizon might be liable given the similarity of its commercials to clearly recognizable commercials from the past. Under the right factual circumstances, I could see all sorts of claims for unfair competition, trademark infringement, copyright infringement, misappropriation, etc. (not saying those facts exist here).
AdFreak, a blog which I just recently became aware, described these commercials as “parody.” However, I seriously question whether these commercials would be able to successfully meet the legal requirements for a parody fair use defense. The fair use defense is a relatively difficult defense to establish, particularly where the “parody” is being used for commercial benefit.
Moreover, parodies are generally understood by the law to be a criticism of something represented by the underlying material, not merely a clever transformative use. Compare the above Verizon “spoof” to this, where the use is plainly intended to comment on De Beers alleged enabling of the “conflict diamond” trade. Or compare it to this “vicious” (WARNING: GRAPHIC AND DISTURBING CONTENT) parody of “overwrought De Beers jewelry commercials.” Each of these uses is categorically different from Verizon’s use here. So, I hope Verizon had something else in its bag of tricks besides the “parody” argument before running these commercials.
Ultimately, the moral is that its important to always recognize the danger in “borrowing” someone else’s marketing concept or intellectual property, no matter how limited or transformative the use. Additionally, its important to recognize the fair use defense is not always the best shield to protect yourself, particularly if you’re involved in commercial advertising.