Israel’s Supreme Court dismissed on Wednesday Nespresso’s appeal claiming Espresso Club’s coffee machine ads with a George Clooney lookalike infringe copyright laws.
Tel Aviv District Court Judge Magen Altuvia ruled that a spoof local advertising campaign in which a model lookalike of Nespresso brand ambassador George Clooney is shown visiting in a boutique coffee capsule store is “a satirical and amusing scenario.”
Judge Magen Altuvia ruled “the use made by Espresso Club in its advertisements of an image of Clooney is legitimate and sophisticated and does not involve any violation of Espresso’s copyright.”
The Supreme Court added to Judge Altuvia ruling said that “Espresso Club’s advertisement is of a different and more innovative character compared with Nespresso’s advertisements. We are not only talking about revamping the original but also a different production, possessing different content and a different message, even if parodying the concept requires the use of a lookalike of Clooney and some additional elements that appeared in the advertisements of Nespresso and Nestle.”
The face is not George Clooney
At the heart of the dispute is the question of what is the law regarding commercial advertisements, at the core of which is a parody of a rival’s advertisement. This question arose after the advertisements for the coffee machines of ‘Espresso Club,’ in which a parody was presented of the image of the actor George Clooney, who stars in the coffee machine advertisements of ‘Nespresso.’
The extensive advertising campaign of the various rights owners of Nespresso coffee products (two companies incorporated in Switzerland and an Israeli company), has at its center a character played by the actor George Clooney – recognizable by virtually everybody. In the advertising video clips are scenes in which Clooney eyes up attractive women, drives a luxury car, and drinks Espresso coffee. In some of the clips, Clooney enters a Nespresso coffee shop, thinking that everybody is admiring him because of who he is and because he is so famous. But as it turns out it becomes clear that he is put in the shade by Nespresso’s choice coffee. Another feature of some of the advertisements is the great status of Espresso’s stores and coffee, expressed among other things by the elegant and expensive dress of the actors, the music accompanying the advertisements and the attractive and famous actors appearing in the advertisements. Finally, in some of the advertisements, the character of Clooney is not completely self-aware and does not correctly read the situation, something that is demonstrated when he ‘loses out’ in the competition for attention by those around him.
This campaign formed the background for Espresso Club’s advertisements – a rival to Nespresso in the Israeli market for coffee machines and accessory products. As part of Espresso Club’s campaign, a number of video advertisements were produced in which a Clooney lookalike appeared, without concealing it – and while actually emphasizing that a lookalike was involved.
At the start of the main advertisement, a character is seen who closely resembles Clooney in appearance and dress, when throughout there is a caption beside him saying that the ‘presenter is not George Clooney.’ A similar caption appears very clearly at the start of the advertisement.
The Clooney lookalike leaves the coffee store, which is similar to the coffee stores in the advertisements of Nespresso, holding a smart paper bag in his hand.
In the background is a similar tune to the Nespresso advertisement, and the narrator’s voice says, ‘There is nothing like a new espresso machine’: the Clooney lookalike watches a woman passing by in the street and looks at her, and at the same moment his glance is caught by an Israeli man dressed casually, as the tune and his celebrations are abruptly cut off and the man tells him in Hebrew, “Stop talking to yourself, your being towed away!”.
The lookalike answers in polished English “Wait but I left the car with the valet.” The Israeli answers him, “No buddy with the parking inspector.” Afterwards, we see the Clooney lookalike’s car being towed away, and the Israeli man tells him that with Espresso Club, you can have your coffee machine delivered to your home and only pay for the coffee machine.
In addition, he mocks the lookalike because he “smiles at the girls” all day, “talks to himself” and “dresses up like a groom to go to the coffee shop.” The video clip ends with the voice of the narrator announcing the option of having a coffee machine delivered to your home, free of charge, under certain conditions.
The imitation of Clooney: Fair use
These advertisements reached the courts after Nestle and Nespresso claimed that the advertisements violated their copyright and harmed their reputation. After the district court rejected the lawsuit against Espresso Club, the dispute went to the Supreme Court, which also rejected the lawsuit from the Nespresso Group.
Supreme Court Justice Neal Hendel together with Justices Noam Sohlberg and George Karra all agreed that the advertisements were a parody, which does not violate the copyright in the original advertisement, after extensively studying rulings in Israel and abroad and the principles of Hebrew law.
The Supreme Court ruled that the parody is not based on the original production, and it should also be taken into account if fair use was made. The court spoke extensively about “fair use” exceptions, which allow use of a production of others, its source, and examples from Israel and worldwide in which parody advertisements were discussed.
In the case of the rival coffee capsules, it was ruled that parodying the image of Clooney was within the bounds of fair use, primarily because it included criticism of the content of the advertisement and services of Nespresso, and because the parody was within the bounds of new creativity with a different message, and not within the bounds of copying the Nespresso advertisement.
In addition, Nespresso’s claim for trademark violation was rejected, due to the fact that the Nespresso trademark did not appear in the spoof advertisement. The court also rejected the claims that the advertisement ‘diminished the reputation of Espresso,’ and ruled that such a claim is nothing but an additional claim for the violation of a well recognized and registered trademark – and this trademark did not appear in the spoof advertisement.
Claims of advertising false information as part of a spoof advertisement that misled consumers were also dismissed. Finally, the judges discussed the claim of ‘making money in an illegal way,’ and answered the question of whether it is proper to ban a spoof advertisement out of considerations of fair competition. In this matter, it was ruled that a complex question of economic and legal policy was involved, and as long as legislation has not outlawed the commercial practice, then there is no place for the court to impose such a sweeping ban in the matter. Regarding these specific circumstances, the court ruled that there is no degree of severity that justifies imposing specific responsibility.
The world of advertising: emotions, competitiveness and constant tension
As part of the ruling, the judges pointed out that the recognition of criticism and parody as ‘fair use’ in creativity respects the individual as a producer and grants him freedom for personal development as well as protecting the production as IP and protecting copyright. This is while providing options for progress, development and even competition, within the framework and the bounds of fairness.
Judge Hendel summed up his ruling with several insights into the world of advertising and wrote: “There can be no denying that the world of comparative and image advertising arouses interest, emotions and competitiveness. The tensions even take on a life of their own. In the claims before us different and contradictory outlooks were presented regarding this phenomenon. There are those who think that it is not desirable for the field of advertising to become a battlefield with brand owners devoting their efforts to discrediting their competitors. In contrast, there are those who emphasize fairness as it exists in law – such as defamation law and the field of denial in trademark law – and claim that these contain the proper balances, and that advertising which is not slanderous or violates trademarks is proper and is the key to a commercial world and competitiveness in the market. These different approaches to these questions can be found around the world.”
In this context, Hendel sent a message to the legislator: “This picture brings us to the conclusion that the legislator has the solutions. In its hands are the appropriate, extensive and good tools with which to examine the expected influence of this or that commercial arrangement for the market and for competition. On another level, it seems that this case has put into sharp focus the power of parody. Within the right bounds, this is a general and independent production that might expose the weakness of other advertisements by using irony. Criticism such as this, in the right measure and according to the rules – is worthy of protection.”
Adv. Zohar Landa from the Barnea, Jaffa, Lande & Co. law firm who represented Espresso Club said, “The Supreme Court set in its detailed ruling that Nespresso has no copyright regarding George Clooney Even after an investment of hundreds of millions of dollars in the advertisements. This ruling gives further strengthening to freedom of competition and freedom of expression, and in my estimation the ruling is expected to influence the world of advertising content in a major way in every aspect.”
Espresso Club said in response: “The Supreme Court today blocked Nespresso and Nestle from harming competition in the coffee machine and capsules market. In its decision, it ruled that there was no attempt at deception but rather a desire to make Espresso Club’s products distinct through constructive critical parody of the image that Nespresso sought to create. We suggest that Nespresso focus like us on creating genuine value for consumers instead of costly legal struggles and campaigns.”