
ALDI parodies a famous festive advertisement - but nobody at John Lewis is laughing
By Dr Luke McDonagh
Picture the scene: it is the
festive season and all around the country families are gathering around their
television sets to watch one of the UK's most beloved consumer events - the John
Lewis Christmas TV advertisement, centred this year on the idea of a young girl
buying a telescope for a lonely, elderly 'Man on the Moon' so that he can look
down on the world and feel alone no more. Parents and children watch in unison
as the core message of the advertisement is transmitted: buying Christmas
presents - at John Lewis - for friends and relatives will make them feel loved
this winter season (or, at the very least, less lonesome). The advertisement is
such a hit that it goes viral, and spreads cheer all across Twitter and
Facebook pages worldwide; John Lewis is filled with happy customers, smiling
and spreading good cheer while spending many pounds.
Yet, elsewhere in festive consumerland, something is stirring - creative juices are beginning to flow - and a clever idea comes to an advertising executive at ALDI. This idea can be summed up in one word - parody - and it is via this concept that copyright law comes into our story.
'Fair dealing'
In late November John Lewis'
rival retailer ALDI launched a (much shorter) 30 second TV advertisement
parodying the recent two minute John Lewis 'Man on the Moon' ad. The new ALDI version shows a very similar
looking elderly Man on the Moon with two telescopes, with a different price tag
on each one. The John Lewis one appears expensive at over £100; while the ALDI
one seems much better value at just over £69. The elderly man states that
although he likes them both he is is 'over the moon' with the ALDI one as he
sees a jolly granny - seen in previous ALDI ads - floating down towards him. Can John Lewis use copyright
law to complain about this? Clearly, something has been copied from the John
Lewis advertisement by ALDI - but what exactly, and would it be sufficient to
amount to copyright infringement? John Lewis could claim that
the basic plot of the ad and the set design are essentially the same in both,
something which might show evidence of copyright infringement by ALDI. But even
if that can be shown, there's something else to take into account - the
important exception brought into UK law in 2014 that allows for parodies to be
created and published without permission of the author of the parodied work, where
these parodies are considered to be examples of 'fair dealing' with a copyright
work. Since the parody exception is
so new to UK copyright law, we have little case law to go on to figure out what
is considered 'fair' in the context of a parody. We do, however, have the 2015
Court of Justice of the EU decision in Deckmyn, which stated that there are two
essential requirements of a parody: (a) the parody must not be a bare copy of
the original i.e. it must be sufficiently different from it and (b) the parody
must be an attempt at humour. Both of these conditions might well work in
ALDI's favour - the advertisement is different from the John Lewis original,
and it is certainly humorous (though, admittedly, absolutely nobody at John
Lewis is laughing).
A masterstroke
In terms of whether it is
considered by the UK courts to be 'fair', the courts are likely to take account
these two factors as well as the fact that (i) the John Lewis advertisement was
in the public sphere - and had already become famous - at the time that ALDI
decided to put out their parody, (ii) the amount used by ALDI is relatively small, and
thus more likely to be fair and proportionate to the attempt at parody (iii)
(in the case of any Trade Mark concerns) the ad clearly marks itself as a
parody of the John Lewis original, and potentially plays to a different market
of customers - those who value the price of ALDI products over the customer
service of John Lewis ones. So it is likely that ALDI have
pulled off quite a masterstroke with their new ad - not only is it a clever spin on a
beloved UK festive advertisement by a competitor, the ALDI parody is also quite
likely to be found legally acceptable if John Lewis try to take a claim against
them in the UK courts.
Moreover, given how new the parody exception is in the context of UK copyright law - and in light of the apparent success of this particular parody - it seems likely that in the future companies will engage in further parodies with the intention of generating attention for their products.
There is an exception to copyright that permits people to use limited amounts of copyright material without the owner’s permission for the purpose of parody, caricature or pastiche. For example a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well-known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork. This exception, however, only permits use for the purposes of caricature, parody, or pastiche to the extent that it is fair dealing.