Home Run Derby

Do I smell a lawsuit?

Really, a lawsuit?

I like that the hosts on this blog are taking the ‘honored’ approach.

It’s an ugly thing that people see this as a quick way to make some money (by people I mean the two cheap schmucks who just posted for someone suing the Cubs).

Really think the actual ballclub created the ad?
How about the advertising firm they hired? Seems more likely that the advertising firm created it…

And I’m sure you got permission from MLB and the team to use the Cubs logo in your rendering? Right?

Highly Compensated (well … Moderately Compensated) HRD Legal Department weighing in here –

This would be a copyright issue, as the claim would be that the Cubs stole your original creative work (assuming the preliminary issue as to whether a crude photoshop would qualify as original enough to be protected under copyright). You don’t have to designate or register original work to benefit from copyright, but of course registration assists in establishing a first date of creation.

And timing is a critical element here. If the Cubs have proof that they were working on this design prior to the HRD posting, you’re toast. Of course, your post came up pretty close to the signing, and timing is documented by the date of the post, which clearly predated the Cubbos. So, you’ve got that going for you.

The other problem you’re going to face, though, is proving that HRD is the source of the design for Cub’s marketing and not that there was accidental duplication. This is analgous to the cases where a screenwriter sues after some hit movie seem to track their original screenplay. Most of those cases go down to defeat, usually because the plots/characters/etc. aren’t so unique that a court can’t find accidental duplication (Art Buchwald’s Coming to America suit is one of the few that succeeded, and there wer some pretty unique facts there). Here, the use of the rising sun flag with a Japanese star is probably not going to be unique enough to withstand a finding of accidental duplication – although the positioning of the Cubs logo is a little suspect, the placement of the circular Cubs logo in place of the circular rising sun again may be viewed as a fairly logical creative step, and not one that couldn’t have happened without viewing the orignial work.

So in short – you’re case may survive a motion to dismiss but would probably not survive a motion for summary judgment absent discovery of some smoking gun (e-mail: “Hey, Marty, check out HRD today – we should totally use that!”). On the bright side, you may not want to be tagged as the creator of a graphical design that incorporates the Japanese battle flag and pisses off all the, Filipinos, Chinese and WWII-era Americans in the greater Chicago area.

In short, therefore, these are very difficult cases to prove … and therefore win.

There certainly is a lawsuit potential, for stealing someone else’s idea and profiting from it. HRD isn’t profiting financially from their rendition. Shame on the Cubs and this ad agency for scouring the internet for ideas and practically copying them and passing them off as their own, and who’s the genius that approved this campaign without doing their research? HRD may not have much of a case, but this guy does: http://sportspropaganda.com/product.html They ripped him off completely, he certainly has a copyright infringement lawsuit on his hands.

Calm down…it’s not the first time, nor will it be the last that similar advertising executions manifest in the same arena…get over it, and focus on the important stuff like whether or not Tony Romo and Jessica are going to re-up next year.