Advertiser That Tells Its Agency to "Recreate" a Competitor's Video (But Make it Better) Liable for Copyright Infringement

Door-to-door storage services deliver packing crates to your house and pick them up once they are filled up. It is, apparently, a cutthroat business, at least in Chicago where plaintiff Doorage and defendant Blue Crates competed for customers. Blue Crates’ CEO kept an eye on Doorage's marketing efforts and admired (perhaps even envied) Doorage's promotional videos so much that he told his creative agency that:

"The videos from Doorage are a great example of what we are looking to do .... We would like to do the same .... [I]f you recreate this [Doorage video] with better imagery, we are on the right track.” 

And he didn't stop there. The CEO also emailed the agency a link to Doorage's “how to" video, opined that Doorage “does a good job explaining how things work,” and directed the agency to “recreate the linked video exactly as it is with our branding." The CEO told the agency that he was looking for something that was “a very close replica of the linked video above from Doorage,” and that all the agency needed to do was “change the color scheme to Blue Crates' and brand it and we should be good to go.” 

When a CEO asks, a CEO typically receives. The resulting videos created by Blue Crates' agency looked an awful lot like Doorage's. When cease and desist letters were ignored, Doorage sued for copyright infringement.

To establish infringement, Doorage needed to prove (1) ownership of a valid copyright (which was not disputed); and (2) copying by Blue Crates of original elements of Doorage's video. On the second prong, Doorage was required to prove both that Blue Crates actually copied the Doorage's video, and that the copying crossed the line and constituted improper appropriation - in other words, that the protectable elements in the two works were substantially similar. 

Typically, actual copying is proven by circumstantial evidence that (1) the defendant had access to the plaintiff’s work, and (2) the two works share similarities probative of copying rather than coincidence, independent creation, or prior common source. (Nimmer calls this “probative similarity.”) (See this post.) For purposes of determining probative similarity, the fact finder is permitted to compare elements from the two works that are protectable under copyright and elements that are not - because both types of similarities can be indicative of actual copying. In this case, there was no genuine issue as to whether there was actual copying: the smoking-gun emails sent by Blue Crates' CEO to the agency left no doubt that Blue Crates (and its agency) had access to the video. And the high degree of similarity between the videos was highly probative of actual copying. 

On the question of whether there was actionable copying, the court found that “no reasonable person would differ as to the substantial similarity between the two marketing videos.” The videos shared similar copy, titles, animated illustrations, structure, “bouncy" background music with a xylophone, and more. And the court didn't buy Blue Crates's argument that the similarities between the videos were limited to unprotectable ideas (scènes à faire) (see this post):

"The general ideas and themes of Doorage’s marketing videos may not be protectable expressions, but the video itself as a unique combination is a copyrightable expression. Had Blue Crates merely drawn inspiration from Doorage’s video, there could be no finding of wrongful copying. But given the presence of actual copying in a nearly identical arrangement as Doorage’s video, an ordinary reasonable person would conclude that the Blue Crates unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value from Doorage’s copyrighted work.

Of course, all of this could have been avoided. Instead of copying Doorage's video so closely as instructed by the CFO (the client is not always right), the agency could have worked with Blue Crates' CEO to identify, conceptually, what he liked about the video, such as the use of animation, the simplicity of the message, and the happy music. Then, the agency could have created a video that employed those concepts in an original, non-infringing way. Coulda, woulda, shoulda.

Doorage, Inc. v. Blue Crates, LLC, No. 1:20-cv-0421, 2023 WL 6214099 (N. D. Ill Sept 23, 2023)