All About Content

3M Carjacks the Post-It Note Jaguar

Posted by Melanie Phung on Wednesday, September 3, 2008 at 10:55 am

This is the original article of how 3M Corporation attempted to generate buzz for its sticky notes product with a user-generated content promotion about creative ways to use Post-it Notes. Displays promoting the contest — prominently displayed in Staples, Office Max, Office Depot and other office supply stores across the country — featured a photo that might look familiar to people who spend time on Digg, YouTube and similar social sites.

Here’s how a $24.5 billion multinational corporation fubars an attempt to do a viral ad campaign by refusing to pay a small licensing fee to my friend, the amateur photographer who inspired it.

~ ~ ~ ~

Four years after the launch of the community site Digg, three years after media giant Yahoo acquired the photo-sharing site Flickr, and the same summer that YouTube reached one billion video views per day — it’s not unusual for corporations to try to reach consumers through social media channels. Savvy execs understand that social media success can equal advertising gold.

There are a couple of ways a corporate marketer can leverage social media’s power to take things viral. One of them is to find something that is already enjoying viral success and ride its coat tails. That’s apparently the route 3M wanted to take with its current promotion.

The perfect idea already existed for the 3M campaign, ready to be exploited: the Post-It Note Jaguar.

~ ~ ~ ~

In December 2006, a bunch of people at an Internet company went down to the parking garage and covered a coworker’s beloved Jaguar with tens of thousands of Post-It Notes. Scott, a photographer and Flickr enthusiast, posted the evidence of the prank in progress to his Flickr account intending to show it to the Jag’s owner.

Post-It Note Jaguar In Progress

View the entire Post-It Note Jaguar photo set on Flickr.

Next thing Scott knew, the Post-it Note Jaguar started to spread on the Internet. The photos took on a life of their own, generating tons of comments and faves from the Flickr community. The photos got reposted on blogs around the world (including the very popular blogs Neat-o-Rama and Boing Boing), hit the front page of Digg more than once, were circulated in millions of emails, were featured as a Yahoo pick of the day, and even appeared in a filmed segment on ABC News.

(feed readers, click here for the video)

~ ~ ~ ~

More than a year passes before the maker of the Post-it Note thinks to capitalize on the viral success that was this Post-it inspired office prank. After all, large multinational corporations aren’t the most nimble players — they can’t just shoot from the hip; after all, they have to dot their i’s, cross their t’s, and generally make sure everything gets approved by lawyers and stuff, right? RIGHT?

So when in the Spring of 2008, the 3M Corporation finally contacts the photographer to ask about using the photos of the Post-it Note Jaguar photos in a marketing campaign, he’s pretty sure they’ve already thought this through. He asked a friend in the photo business what a typical licensing fee for a national marketing campaign would be, and quoted that amount to 3M.

Their response? They tell him they’d rather not pay when they can just recreate the photograph themselves.

Here’s what floors me: 3M doesn’t even try to maintain plausible deniability. The 3M representative who contacted Scott comes right out and says it would be cheaper to copy the photo than it would be to license the original photos.

postit-email-2

Scott responded to the email from the corporation’s eMarketing Supervisor and gave the company another chance to do things properly, by lowering the license fee he originally quoted (to a mere $2,000 for the entire campaign!). He was met with complete radio silence.

That was the last he heard of it until the Flickr pages and YouTube channel started getting a whole new spike in traffic, along with comments like “Hey man, I saw this photo at Staples. Congratulations!”

The point-of-sale displays prominently placed in office supply stores around the country would easily have run 6 figures in production costs alone. And if you know anything about in-store promotions, you know there are plenty more expenses associated just with getting the display space. In other words, this was a big budget production… the extra $1,000 to actual license the original photos would have been insignificant in the greater scheme of 3M’s budget for this project.

~ ~ ~ ~

Putting sticky notes all over a car, admittedly, isn’t a completely original idea, but 3M went to pains to make their photograph look very similar to the original Post-it Note Jaguar photo that garnered all the publicity. They could have done anything, but they did this:

It’s clear they set out to create a replicate of the Post-it Note Jag and they were counting on people “recognizing” the photos. Why else contact Scott about getting copyright permission in the first place? Even the work-in-progress photo montage 3M posted on YouTube looks eerily like Scott’s Flickr set.

Now, I’m not a copyright attorney, so I’d love for someone with an intellectual property law to chime in here, but just for kicks, let’s do my layman’s check for violations of fair use:

  1. The copied work is for commercial gain: Check
  2. The work copies substantially from the copyrighted one: Check
  3. The effect of the copied work undermines the potential market for or value of the copyrighted work: By definition

But let’s pretend the legality of this move wasn’t even a question for now, and focus on this: Social media marketing campaigns rely on the social media community to carry them. As a marketer, you have to respect the community and its members. Ripping off community members and then turning around and asking that same community to generate buzz for your campaign is just ballsy… or stupid.

The irony: The YouTube contest rules say “Remember, creativity and true brilliance will get you noticed.” I’m hoping that 3M’s “creativity” and true chutzpah get noticed as well.

The original Post-It Note Jaguar

~ ~ ~ ~

Lest anyone think I’m slamming all companies and corporate marketers for wanting to take advantage of social media, I’m not. I think there are plenty of creative ways to get your product’s name in front of social communities in ways that don’t disrespect the users.

For example: create an original marketing campaign around a concept specifically designed to be share-worthy. A recent example of this tactic is Extended Stay’sVery CleanVideo (Disclosure: New Media Strategies, my current employer, helped promote this campaign).

Of course, corporate attempts to become viral can ring hollow, so smart social media marketers know that it helps to let the fans come up with the idea as well as leaving it to them to drive the campaign’s popularity.

Therefore some companies ensure the campaign is going to reach a wide audience by latching on to something that’s already gone viral. There are legit ways to do that. In fact, that’s what Stride Gum did with its sponsorship of the Dancing Guy (aka Matt Harding).

If you’re a corporate marketer interested in getting into social media marketing, viral video promotion, link bait, etc., I suggest consulting with people who know the communities you’re targeting. Any of us could have told you that stealing photo ideas from the community and using them to pimp your office supplies is not a good move.

Comments (50)

Category: Intellectual Property,Social Media

50 Comments

Comment by Sonny Gill

Made Wednesday, 3 of September , 2008 at 11:40 am

Great post Melanie. Had not heard about this until now but definitely deserves to be voiced.

I’m actually somewhat not surprised that 3m went the shady way out and failed to even respond to Scott and his more than generous request. Some big name corporations seem to be ok with the fact that they brush off a consumer here and there just because they think they have power and it doesn’t matter. They failed to realize the word-of-mouth associated when something like this is exposed and more people begin to find out about how they handled this particular situation.

Unfortunately, I don’t have a law degree and have specifics on copyright infringement but hopefully someone can chime in on that as well.

Comment by William Flanagan

Made Wednesday, 3 of September , 2008 at 1:20 pm

It seems like it’s clearly a violation of the spirit, if not an actual violation of his IP rights. If he could lawyer up, I’m sure he’d get something out of this.

It’s really a shame that its come to that–that small guys need lawyers to keep the “biggercos” from stealing ideas.

Comment by Bryan

Made Wednesday, 3 of September , 2008 at 3:02 pm

Time for Jaguar to send a cease-&-desist letter to 3M.

Comment by MadSilence

Made Thursday, 4 of September , 2008 at 3:04 pm

Thanks Melanie. A different take on an interesting topic.

http://madsilence.wordpress.com/2008/07/26/note-ably-artistic/

MadSilence

Comment by clickykbd

Made Friday, 5 of September , 2008 at 12:57 pm

There was also a NYT article addressing this general subject a while back. The trend seems to be only on the rise…

http://www.nytimes.com/2008/07/13/arts/design/13fine.html?ex=1373688000&en=45e75a308ceea29e&ei=5124

Comment by Jon Jennings

Made Friday, 5 of September , 2008 at 2:23 pm

Great article…
On the one hand, who can blame 3M for trying to do a bit of negotiating. But the difference between shooting it themselves and licensing the original for $2000 is peanuts.

In conventional business this is fine… drive a hard bargain, take the best deal for you, screw the other guy. But what makes it ridiculous in this specific instance is that the other guy that 3M is screwing is a part of the very organization that 3M is trying to leverage to promote its product.

Epic fail.

Comment by Jon Jennings

Made Friday, 5 of September , 2008 at 3:06 pm

Melanie, Digg is 4 years old not 8.

Feel free to delete this comment after you correct the copy :-)

Comment by john andrews

Made Saturday, 6 of September , 2008 at 1:57 am

Professional photographers deal with this all the time, and win when they act like professionals. You have to decide whether or not you are actually a “photographer”. Photographers don’t give away their photos for free, photographers file copyrights, and photographers get paid. When this happens to a pro, the pro gets paid.

Comment by John

Made Sunday, 7 of September , 2008 at 10:52 pm

Come on, if you expect us to rally to your cause, don’t hold back.

How much did you initially ask for?

This is a KEY piece of information you should provide before we decide who is at fault here.

Comment by Melanie Phung

Made Monday, 8 of September , 2008 at 11:17 am

@johnon – I think you’re hitting on a point that I think is important. Because these photos weren’t professional grade (whatever that means) and the creator of the picture isn’t a professional photographer, 3M thought it wasn’t risking anything by taking a short cut. If we were talking about “just a photograph”, rather than what this was (a viral sensation), this would be a different issue. My interest is really not so much in whether, from a legal standpoint, this is a copyright infringement case. My interest is in how corporations should, and should not, leverage social communities. While they may or may not be on solid standing legally, the way they chose to save a mere thousand dollars could cost them much more in ill will. They acted in bad faith toward the very same community that they are asking to help them take their marketing viral.

@ the other John – I’ll let the photographer speak for himself on that detail, but do you really think that “right vs. wrong” works on a sliding scale like that? 3M was wrong only if he asked for X amount, but if he asked for X+1 than the principles are reversed?

Comment by SEO Hack

Made Monday, 8 of September , 2008 at 4:44 pm

@ the latter John – i don’t see what price has to do with it. that’s like saying it’s okay for me to totally steal and rewrite the latest crappy Star Wars offering from Lucas because he wouldn’t sell the rights to me for the fucking peanuts I offered (Seriously, George, give me a call).

What we have here is 1) An arrogant corporation trying to stick it to the little guy after the little guy did the heavy lifting to give their new campaign some legs; 2) 3M Corporation’s ignorance of how social media works (plus forgetting there’s 10 bad things said about a company to every 1 good thing) and c) the potential fall out from this kind of misstep (was it calculated in?). Money doesn’t give them a reason to act like fucking bullies.

Comment by Colin

Made Friday, 12 of September , 2008 at 9:29 am

What on earth could the original licensing figure have to do with this being right or wrong @John?

Forgive me, but the logic implied in your question baffles me.

If you’re so curious, check out any professional photo licensing website to see what they would charge for photos in this instance. I’ll give you a hint, its MUCH higher than $2k.

Comment by Brian

Made Friday, 12 of September , 2008 at 9:58 am

I had a photograph I’d posted on Flickr get licensed by the US Postal Service for a national ad campaign that ran last holiday season. After being contacted by the USPS’s ad agency, I did similar research in coming up with a fee to propos to them, which was much more than the $2000 that this photographer asked. The USPS talked it down to just under $10k. They could have just as easily copied my picture, since it was the home-made nature of it and lack of technical slickness that they wanted. That and my cute kids.
So the more I read about things like this, the luckier I feel. $750 – $1000 is stunning and cheap, and then ripping the whole idea off is dastardly. May the little guy get his.

Comment by Jamie

Made Friday, 12 of September , 2008 at 10:29 am

I would definitely sue them for copyright infringement. Worked at a stock agency for years and you’d be amazed at the much flimsier cases that were settled. This is a very clear violation and the underhanded way they went about it should be exploited.

Comment by Paula

Made Friday, 12 of September , 2008 at 10:58 am

First off, I am very sorry that this is happening. It is a little distressing. I am a photographer – so this is my point of view.

I have never seen the original photo so I may only ask questions. But what is the quality of the original photo? What sort of camera was used to take the photo? How was the focus? How was the lighting? There are many things add value to a photo. If the original photo was lacking the polish that a professional photographer can attain, is it reasonable that they use this idea and create their own? Again, I am not saying it is alright. Should he be compensated for his brilliant idea? What if it wasn’t his idea in the first place?

I am saddened by the pro photographer who DID agree to do an ad shoot for a major corporation for $500 to $1000, however, and agreed to COPY for this price. IF that is, in fact, true, THAT is what is the most upsetting fact in this case to me. Could they have found a way to take the idea and do something DIFFERENT versus actually copying it???

Comment by Paula

Made Friday, 12 of September , 2008 at 11:06 am

Oh, duh. Now I see that the original photo is right there. Ok, well, of course these photos do not have the polish the pro one does. There is just no denying that 3M expected the photo for the ad campaign to have a certain polish. They should have ponied up some cash to the guy with the great idea.

Comment by Melanie Phung

Made Friday, 12 of September , 2008 at 11:11 am

Paula – did you take a look at 3M’s versions of the photos? They definitely do not look “polished” either. It seems clear to me they were going for a DIY (or UGC) feel much like the originals. They are poorly lit, not in focus, the white balance is off, they look just like snapshots of a bunch of people in an underground garage. I think I can see where you’re coming from, but you’re giving them too much credit, in my opinion; this was not an attempt to get “more professional looking” photos, based on that YouTube montage.

Comment by Lorraine

Made Friday, 12 of September , 2008 at 11:36 am

“Tens of thousands of Post-It Notes”…

LOL, didn’t 3M realize that these employees likely burned through a couple hundred dollars worth of post-it’s? Not to mention the spin-off effect of all the copycats, just wasting post-it-notes!

I bet they have earned back more than the requested fee when offices all over the world mysteriously had to restock the post-it-note shelf. Shouldn’t that be worth something?

Comment by Jewels

Made Friday, 12 of September , 2008 at 12:31 pm

wow. I suddenly have an urge to get the generic brand of “stick-it” notes.

Comment by Willy Branlund

Made Friday, 12 of September , 2008 at 2:56 pm

I think the more cases like this, go unchecked, the more we-as photographers-will have
start looking for other work. I mean, why hire a professional-when you can just go to FLICKR
and steal ideas. I really feel this guy should at try and sue them, or speak to a copyright lawyer.

Comment by jak of stratius group

Made Friday, 12 of September , 2008 at 4:30 pm

very cool post. thanks for breaking this down to the details. just another of a long list of examples of how corporations just do not get the internet in any way.

as said above I think it would be cool if a generic brand did license the originals. would they not then have a worthy lawsuit over post-it-notes? maybe revenge is not the best answer, but as an artist and writer it just bothers me.

Comment by Mike

Made Friday, 12 of September , 2008 at 4:38 pm

Sorry to say it, but as an IP attorney, this is NOT copyright infringement. Thus there is no fair use to even be discussed. The “idea” and general color pallette for the car is what they took, and that is not protectable. There are marked differences in the type of car, the colors and arrangement where a copyright action would not survive here.

I do agree, however, that the “spirit” is what is violated, although there is no real remedy for that. It was, indeed, unwise to not just pay the photographer given the relatively small fee amount that was discussed just to avoid the grief and bad publicity.

Comment by ResoL101

Made Friday, 12 of September , 2008 at 6:48 pm

seems like a perfect time for a “3M sucks” done on a HUGE bay window…maybe in some stop-motion film making?

Comment by Dan Heller

Made Saturday, 13 of September , 2008 at 12:10 pm

Mike–this is not “copyright infringement” in the classical sense, as you say, but there is already precedent for courts not ruling in favor of those who steal “ideas” like this in the photography realm. My book “Photographer’s Guide to Model Releases” has a whole chapter detailing precisely this very subject. Two cases in particular are literally identical to this: Fournier v. Erickson involved a photo that Microsoft was going to license from the photographer, but negotiations broke down for the price, so MS hired their own photographer to shoot the same “theme” idea. The judge ruled this was copyright infringement because the spirit of the photo was copied, even if not the photo itself. The details here are critical: it was a “HIGHLY ORCHESTRATED” photograph, where it’s not just something one sees everyday or by accident, but considerable time and effort had to go into its conception AND into its execution.

Another case is Louis Psihoyos’ photo of a wall of 500 computer monitors that Apple was going to license from him for their AppleTV ad campaign. Again, negotiations broke down, Apple hired their own photographer to shoot the same thing, and Psihoyos sued.

These are different cases involving exactly the same scenarios, and courts have ruled in favor of the photographer. It’s important to read the court opinions to understand why/how all this works.

I cite more cases and examples in my book: http://www.danheller.com/model-release-book

dan

Comment by Andrew

Made Saturday, 13 of September , 2008 at 2:07 pm

And hey look.. they get free publicity.. which is exactly what they want.. congratulations. The fuss raised over this will get them even more publicity than if they’d just paid for the photos. they’ll be force to pay for it eventually, but the publicity will be worth more in the end.

Comment by Julia

Made Sunday, 14 of September , 2008 at 12:06 am

Legal or not – If that modus operandi is 3M culture I’ll be specifically avoiding buying 3M …. Until big corporates are asked to “do the right thing” (through kickback and bad PR) and to lead through good ethical business practices – we’ll have a sadly declining society.

Comment by john Hryniuk

Made Sunday, 14 of September , 2008 at 12:33 am

3M sucks I definitely won’t be using any of their products anymore…
I will say that the photographer was asking way way way too little for the rights to the photos… I would think it would have been in the 10’000 range for POP (point of purchase ) use only.. and that would be just in the states… who knows if they used it outside the country. A measly $2000 and 3M wouldn’t pay it? I would sue.. and Im sure you would win.. its not like they tried to hide the fact that they were copying the idea… I hate companies like this.

Comment by Stretch Ledford

Made Monday, 15 of September , 2008 at 9:10 pm

It’s easy to forget that “suing” someone is a hell of a lot easier than “winning a lawsuit.” It also costs a ton of money (can you say, “six figures”?) to do either.

Regarding Fournier v. Erickson and Psihoyos v. Apple – My understanding is that both of these matters were settled out of court.

Also, unless the Flickr shooter registered his images before the alleged “infringement,” even if there were an infringement he wouldn’t qualify for statutory damages, but only actual damages. Because he quoted $2k for the usage, the loss of this $2k was his actual damage. Not worth a good attorney returning the call…

Comment by Chad Thompson

Made Tuesday, 16 of September , 2008 at 12:52 am

Also if you didn’t register the photos with the US Copyright Office you have no recourse. But you can register them up to 90 days (if I remember correctly) after the infringement. Not that that helps in this case.

Comment by Storm

Made Tuesday, 16 of September , 2008 at 4:32 am

One of many articles about this blatant rip-off by 3M. I and many others won’t be buying ANY of their products any time soon. Quite disgusted by them really. I’m sure it cost a bomb just to buy the post-it-notes to stick all over the jag, so $2000 to use their idea and cash in on all the publicity it got is chicken-feed.

Shame on you Michelle or whoever was responsible at Thieves-M.

Comment by Craysh

Made Tuesday, 16 of September , 2008 at 5:42 am

Just send Youtube a DMCA take down notice.
They seem to take down videos for them at the drop of a hat…

Comment by Eric

Made Tuesday, 16 of September , 2008 at 10:21 am

Why does the amount magically go from $2000 to $1000 in the article?

Comment by Melanie Phung

Made Tuesday, 16 of September , 2008 at 10:43 am

@Eric – not sure what you’re talking about. The amount he countered was $2,000 – which is $1,000 more than what Michelle said it would cost for them to restage the photo. The asking price: $2,000. The additional cost, according to 3M, to license the photo instead of recreating it: $1,000.

Comment by Tom

Made Tuesday, 16 of September , 2008 at 1:46 pm

The really dumb thing from 3M’s perspective is that it would have cost them $1K extra to ‘join in’ and become part of the community and viral phenomenon. They’ve saved a grand in cash and pissed off just about everyone who hears about what they did. Yeah – send a DMCA takedown to Youchoob

Comment by Storm

Made Tuesday, 16 of September , 2008 at 9:23 pm

Sent a msg through the mmm.com system, and here is the reply:

************
Dear Mr. Storm,

Thank you for contacting 3M Company. We appreciate hearing from you.

3M regrets that you feel this way. 3M has a long history of using Post-itĀ®
Notes to cover objects of many kinds, something that the company has done
all over the world as creative and fun communication ideas. For example,
in 2007 3M sponsored the “Wish Train” program in Korea, where a commuter
train was covered with Post-itĀ® Notes written with wishes. 3M also
celebrated the 100th Anniversary of Einsteinā€™s Theory of Relativity in
Korea by covering the walls of a famous museum with Post-itĀ® Notes. In
North and Central America, 3M has been well known for creating giant Pink
Ribbons in support of Breast Cancer awareness programs. The practice of
using Post-itĀ® Notes to cover objects such as cars is well known and
widespread. For example, on YouTube alone, there are dozens (if not
hundreds) of videos depicting cars being covered in Post-itĀ® Notes – this
concept does not belong to any one person. Whether 3M elects to work with
any particular individual on such a project or takes another course of
action depends on each unique situation, and 3M believes it acted
appropriately in electing not to use the Post-itĀ® Notes Jaguar photo.

We thank you for your continued interest in 3M products.

Sincerely,

Liz
3M Office Supplies Division
1-800-395-1223
http://www.post-it.com
3M Workspace Solutions
1-800-332-7483
http://www.3m.com/myworkspace

*********

Fair enough that post-it notes have been used on many objects, but in this case they had contacted and then directly copied a particular idea, and even used nearly exactly the same design and type of car in their final ad. Still disgusted.

Comment by MD

Made Tuesday, 16 of September , 2008 at 11:52 pm

I’ve seen this kind of corporate co-opting of viral before.

Some may recall the viral “Big Mac Rap” Video from a couple years back. http://www.youtube.com/watch?v=xhlUVyDBusg

It features two young men driving up to a McDonald’s Drive through one beat boxing and the other rapping their order.

Now by comparison, look at this taco bell commercial that copied the concept shamelessly.
http://www.youtube.com/watch?v=eoH67W3_4og

If this latest incident with 3m is any indicator, I see the slow impending over-saturation of the “viral market.” As with much in the internet and “new media” world, as soon as old media or corporate get a whiff, the descent begins.

I feel “viral” as a mechanism to promote corporate products and services will increasingly become devalued as it becomes more and more of a ubiquitous advertising process.

Comment by FooBarBaz

Made Tuesday, 16 of September , 2008 at 11:54 pm

So, let me get this straight: A bunch of people do something fun and take photos of it without any expectation of monetary gain. Other people find the photos enjoyable and a good time ensues. Original photographer preemptively investigates monetizing the photos, and is disappointed that the big bad company says no to a deal for unclear rights to the photo set and instead commissions their own photos to which all rights and releases have been obtained.

In the ensuing discussion, anyone who asks about the photographer’s original offer is chastised on the grounds that this is a discussion about principles and respecting the community, and not money, even though the original photographer had the photos professionally appraised instead of deciding on his own, or with the community, a fair price for letting 3M share in the experience the community has enjoyed, even though 3M’s use of the photos (at whatever price) could only enlarge the community and inspire future similar projects, as has been demonstrated by the attention this has generated, and by links in prior messages. 3M is still generating attention for this community, but has no reason to do so, and instead of accepting a nice reward for doing something fun (for which no reward was originally expected), the community is investing a bunch of emotional energy on a virtually intractable issue.

I’m sorry, but I don’t see that 3M is acting in any way worse than the community on this issue.

Comment by JC Dill

Made Wednesday, 17 of September , 2008 at 4:24 am

There was a very similar copyright infringement about 30 years ago. A record company copied a relatively famous photo for an album cover. The photo was of a young woman standing on the beach, the setting sun creating a starburst as it was barely visible from between her spread legs.

I can’t find the page now, but I know there’s at least one page on the ‘net that has details of the story and jpegs of the two images.

The photographer of the original image sued the record company for copyright infringement and won in court, collecting more than $100k, IIRC. ISTR that the record company first tried to license the image, but didn’t like the price quoted (sounds eerily familiar to this post-it story, eh?) and then hired a photographer to recreate the image instead.

Comment by Melanie Phung - Washington DC SEO

Made Wednesday, 17 of September , 2008 at 9:58 am

@Storm – guess they should have used one of their pictures of the Post-itĀ® Notes “Wish Train” on their POP display instead, eh? Would have saved them a whole ‘nuther thousand bucks and a bit of headache as well.

Comment by Stan James

Made Friday, 19 of September , 2008 at 2:00 pm

Wow. What a cool idea! I’ve seen that online a few times. I can’t believe that 3M had the nerve to steal the idea.

Comment by tim buesing

Made Monday, 22 of September , 2008 at 7:24 pm

Thanks Melanie for blowing my post out of the water with your earlier analysis. Excellent post and so much background info. Working in advertising you know that 2K for a campaign buyout is ridiculously low sum. The 3M marketing person should be sent back to social media school at NMS.

Comment by Robin Lambert

Made Tuesday, 23 of September , 2008 at 10:42 pm

There are a lot of emotional responses in the comments, and rightfully so. My response was initially emotional but quickly shifted to legal thoughts as those are the means to teach a bully a lesson. As a professional photographer knowing something about copyright law, although not a lawyer, it seems obvious to me that the original photographer’s copyright has been violated. Copyright law states that the photographer establishes copyright the instant the shutter is tripped. If using a film camera, the film doesn’t even have to be processed for the copyright to exist. Protection for unprocessed or unpublished images would only extend to assistants and observers of the photo session as you obviously cannot copy something that you have not seen. By the way, you cannot copyright or register an idea so ideas have no legal protection. In this case the actual photograph appears to me to be “substantially” copied, or infringed.

3M fully admits to having seen the image by their attempt to license usage rights for “in-store displays for six months.” Licensing for specific purposes is one of the contributing factors to the value, versus buying the copyright outright for any and all uses, which would have the highest value. The fact that the photographer originally had no intent to earn money when taking the photo is completely irrelevant and in no way reduces the value. That would be like saying that a Leonardo da Vinci sketch is valueless because he never originally intended to sell it like he did his paintings and sculpture. That value is determined by the parties involved AND in the case of infringement, by history of similar sales, not only by the photographer in question but by other photographers as well.

To the Intellectual Property Attorney that said this is NOT copyright infringement I will only say that I have read of cases on much shakier ground win in court. Also, you did not say which side of the aisle you sit on in court. I agree with Mr. Heller’s post and offer a couple more examples, the first substantially different from the 3M case but important in seeing the breadth of copyright infringement and how the courts protect producers of intellectual property. There was a case of infringement brought against an artist copying a photographic poster of puppies in his production of bronze sculptures, completely different mediums. (The photographer was notified by a colleague who new the poster about the infringement. The photographer attempted to negotiate a fee with the artist before filing the suit.) The artist lost the case. As incredulous as it may sound, the artist did the exact same thing with another photographer’s work. This photographer filed suit after failed negotiations with the same results. A very similar case to this 3M issue: a large company which I will refer to as GD attempted to lease a photographer’s image of a wheel chair on a porch. They did not come to terms. GM actually provided a copy of the image (layout) to another photographer to emulate. Nothing except the “feeling” and composition of the image was the same yet the judgment was against GD.

That’s where the courts come in. I have seen many photographers compensated generously in copyright infringement cases when their ducks were in a row, but that is no guarantee. I have also seen cases that appeared to be legally strong for the photographer get thrown out, usually in a court that has had little or no experience in copyright issues or perhaps hiring a substandard IP attorney. As has been mentioned in other posts, registration offers additional protections and rights. But the copyright itself is established upon creation and as such affords specific rights. A favorable court could even take into consideration the rates of other photographers for similar works and award an amount higher than the original asking price by the creator of the photograph, especially if he considers the infringement to be egregious [Merriam-Webster Online Dictionaryā€”conspicuous; 1.obvious to the eye or mind, 2.marked by a noticeable violation of good taste].

Often times big companies think that no lawsuit will be filed because of the uphill battle before the “little man.” If I were the photographer I would approach the legal departments of ASMP (American Society of Media Photographers) http://www.asmp.org/, PPA (Professional Photographers of America) http://www.ppa.com, and/or APA (ADVERTISING PHOTOGRAPHERS OF AMERICA) http://www.apanational.com who have a long history of standing up for cases like this and see if they might like to help out.

I’ll not get involved in a discussion as to what is fair compensation in this case but I will say that in my opinion 3M stole from the photographer by not being fair or friendly (copyright infringement is theft). Taking the food out of the mouth of a fellow photographer, professional or not, has forced me to reevaluate my future association with 3M and their products Very sad because 3M had roots in the imaging business. I might even line the inside of my barbeque grill with my remaining Post-It Brand Notes and fire it up in protest before I go and purchase a competitor’s brand.

Comment by john wood

Made Wednesday, 24 of September , 2008 at 5:54 am

3M = big BULLY and SUX, PEROID.

Comment by Melanie Phung

Made Wednesday, 24 of September , 2008 at 9:55 am

Robin,

thanks for that very thoughtful and articulate response. I have to say that I find it personally gratifying when people like you back up my initial gut reaction that this incident qualifies as a breach of copyright. I’ll pass your recommendations along to Scott.

The issue, however (IMHO), is not primarily one of legality. While a lot of the discussion seems to have veered off in that direction, the glaringly obvious, head-smacking stupidity of the whole thing is the PR backlash 3M has brought on itself.

Corporations already have so many things going against them when trying to go viral, that bringing the original creators of the Post-it Note Jaguar on board should have been a no-brainer.

Comment by Jerry

Made Thursday, 25 of September , 2008 at 4:47 pm

The key to copyright is to register the photo, video, whatever with the copyright office. It costs only a file fee plus a copy to do this. Some photographers publish a single copy volume each year The Photographs of John Jonesfor 2008. This means a single fee covers all photos. After it is registered, a copyright suit with meaningful punishments is possible. (I think $5000 per use-this could mean per copy of ad published.) In a worst case the offender has already registered their copy as though it were the original. Then a court battle with copies of all communication might make a difference. What I would do is register the original the moment I got a preliminary query, then negotiate.
In a side issue I know of a part time photographer who specializes in glamour, nudes, etc. He also is employed by a public school. Someone brought in evidence of his having a web site with “porn” pictures. His school district brought in a complete set of pictures copied from the web. The photographer-teacher brought in a copy of the copyright law, showing the district that they had violated his copy right with each copy and the decision was made to cancel the proceedings.

Comment by Nigel P. Chillings

Made Friday, 26 of September , 2008 at 3:02 pm

Rest easy, folks, the newest craze in social-media-user-sourced-and-generated-networked-poking is coming to help. Spread the virus – isn’t that clever! Viruses! They’re contagious. And sticky!

Like post it notes!

Too bad for the fellow with the original idea.

Comment by Jacob

Made Wednesday, 1 of October , 2008 at 12:53 pm

I have negotiated with 3M in the past, and this doesn’t surprise me.

I an email with images to one of 3M’s business units and it was very well received. I got a follow-up email the next day requesting rates for a 20k run publication.

After submitting rates that were very competitive, I received an email from them “hoping they could provide me 3M products in leiu of a photography fee”

Sorry, 3M. Your products won’t pay my rent.

Comment by darius draper

Made Monday, 13 of October , 2008 at 1:48 am

This is standard ops for these Giants. Worked 18 years for this co. in illinois. Union shop. Shut the doors sent our jobs abroad. And sold the property to Toyota. Oh did I mention that They bullied their way by my lawyer to avoid paying any severence payout. I think your lucky they didn’t somehow sue you for using the post its in some lewd display or fashion.

Comment by Patrick O'Malley

Made Monday, 13 of October , 2008 at 1:42 pm

3M stands for Modern Marketing Morons

Comment by Foster

Made Thursday, 27 of November , 2008 at 12:57 pm

Keep it up man.,

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