Andy on the Road

18 July 2009

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:

gywo.greenspan

Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):

blogjamba

Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.

BOYCOTT JAMBA JUICE!

JUICE SUCKS, DRINK WINE

Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.”  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

43 Comments »

  1. You claim this to be a “shameless ripoff” but the images in question are public domain. The thought bubble is as old as comics and stencils, and David Rees has no right to defend anything other than his copy. I won’t defend Jamba Juice, but I can’t believe this didn’t happen sooner.

    If David wants to cry infringement, tell him to take a drawing class and pen his own art, or pay someone else for the privilege.

    He should be flattered that someone finally did the inevitable and used the same elements, but instead said this on his blog… … and just pray our way across America, destroying Jumby Juice franchises left and right, leaving a trail of prayerful destruction in our wake?

    If he wants to sue someone, he should sue them. Oh, I guess he can’t because he doesn’t OWN THE F*@#ING ART.

    I guess he found something else to blog about after his strip became obsolete. To tell the world that he thinks Jamba is lame, is absolutely fair, but to talk about a mass protest is nothing more than a ploy for the same type of press that he is condemning from Jamba Juice.

    Comment by Tom August — 20 July 2009 @ 6:14 pm | Reply

    • Hey Tom,

      Thanks for the link to your website, Adeline Media. Very dynamic, indeed. “This domain is under construction and will be available soon.” wtf does that mean? Is the website coming soon or will the the domain be “available soon” as your placeholder says? Doesn’t make any sense.

      Oh, and if David Rees is such an stand-up guy — supporting landmine relief in Afghanistan and whatnot — why are his clipart characters selling Jaamba Juice all over the internet? I’m confused.

      F

      Comment by Ford Sender — 20 July 2009 @ 10:49 pm | Reply

  2. You can be legally within your rights and still be a shameless ripoff.

    Comment by John — 20 July 2009 @ 6:31 pm | Reply

  3. Hey August, how thick are you?

    It is the way things are put together that makes Rees work unique and that is what Jamba is pplagiarizing.

    -G.

    Comment by juepucta — 20 July 2009 @ 6:32 pm | Reply

  4. @Tom August: If David Rees had drawn the characters, that would have removed a significant element of what makes his strip good. The point is that these are nameless cube dudes, depicted by the ultimate in soul-less figures, clip art.

    The ad agency couldn’t even be arsed to find different clip art dudes, making me think that they deliberately wanted people to associate their brand with Rees’ strip and they probably figured since it’s clip art, he couldn’t do anything about it. I don’t know if that’s true, but it sure is a jerk-wad thing to do.

    Comment by ballookey — 20 July 2009 @ 6:49 pm | Reply

  5. Does anyone else see the stupidity in taking a humorist’s blog seriously?

    Also, I’m sorry to say but I invented that style of thought bubble using crayons in 1985.

    Comment by r — 20 July 2009 @ 7:02 pm | Reply

  6. August may be thick but he has a point. Once Rees went down the road of using public domain characters, he left himself open to this kind of bullcrap.

    Comment by girard31 — 20 July 2009 @ 7:03 pm | Reply

  7. People are taking this way too seriously. Maybe I’m wrong, but judging by the hilariousness or Mr. Rees’ latest posts he’s having far too much fun to give a shit that someone’s ripped-off his comic style for a measly web ad that essentially no one’s going to see. That being said, I’m never drinking Jamba Juice again. Juice sucks, drink wine.

    Comment by Adam — 20 July 2009 @ 7:15 pm | Reply

  8. I’d never even heard of Rees or ‘his’ works before this whole thing kicked off and I’m willing to bet a whole heap of other people are able to say the same thing.

    Yes, the clip art is the same, however, the language (and style) is totally different. Every graphical element in the Rees works is public domain so while the ‘creative’ Agency hasn’t done anything to earn their wage I also don’t think Jamba deserve to be vilified or have a boycott called over this.

    In the grand scheme of things it looks very much like Rees is just pissed that he’s not getting a slice of the Agency paycheck – which I totally get and agree that he must be due something for creative influence but perhaps he’d also be wise to consider the fact that this has made more people aware of his works and will probably not do his book sales any harm. There’s only so much money to be made from sticking clip art (made by somebody else) together and adding your own profanity laden ‘commentary’ over the top, and we all know how a good internet witch hunt / scandal works wonders for increasing your profile!

    Stop blaming Jamba, and Rees? How about you try coming up with something that requires a little more of your own input next time around maybe? If nothing else it’ll make the copyright lawsuits easier to justify and you’ll seem a lot less petted when you complain about somebody using ‘your’ works.

    Comment by Dutch — 20 July 2009 @ 7:17 pm | Reply

    • > Rees is just pissed that he’s not getting a slice of the Agency paycheck

      uh? no. The worst outcome here for Rees is that some people will think he accepted $$ for this hack commercial distortion of his extremely cool work. I haven’t the slightest idea if it’s copyright infringement but I hope enough online hell rains on jamba juice that they drop the ad and apologize.

      Comment by k — 20 July 2009 @ 8:18 pm | Reply

  9. Sorry, but just because you use something in the public domain in your work doesn’t automatically place said work back in the public domain. They way he combines the PD artwork into a new piece makes it eligible for copyright.

    And speaking as someone who’s made their living as an advertising writer for over 15 years (Really? Crap.), Jamba Juice and their agency are still being unethical regardless of the legalities. I’m on Rees’s side on this one, even if I am a right-wing nutjob.

    Comment by Jason Fox — 20 July 2009 @ 8:05 pm | Reply

  10. He’s got a case. This comes under the law against passing-yourself-off-as. Jamba Juice has appropriated the look and style of David Rees knowing that an association will be made between the company and him. Against the rules, whether the actual art itself is in the public domain or not.

    Comment by Pat Cadigan — 20 July 2009 @ 11:14 pm | Reply

  11. [...] This post was Twitted by mwelchisdead [...]

    Pingback by Twitted by mwelchisdead — 21 July 2009 @ 12:03 am | Reply

  12. I’m surprised it’s not clearer that an ad campaign has a higher calling than just not breaking the law. It’s pretty clear to anyone who takes a moment to become familiar with Rees’ work that someone thought they were getting away with something, and that’s a pretty heavy burden for a company like Jamba Juice; striving for authenticity. The key here is that people spread the word–while there may be no legal redress, there is certainly a social and financial price to pay for such a shameless bite.

    Thanks, Andy; for a great post on the story in progress (we’ve linked to it, and are watching as it develops). One question: Has Jamba Juice (or Neighbor) responded? Are they aware of the claims?

    Comment by Mr. Pony — 21 July 2009 @ 3:56 am | Reply

  13. Day of action against Jamba… nationwide boycott…pray for Jamba! What an egomaniac. He admits there is no real legal action available to him (because he didn’t actually draw any of it) but complains that Jamba ripped off his comic bubbles — do people really need to get bent out of shape over comic bubbles? Some of his supporters claim that what he did with the images is unique, I’ve seen the term Reesian being used — let’s not assign too much meaning or importance to his work, it’s just not that special. He seems to be in desperate need of attention. From his blog…”Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever.” Hey David, don’t be too bitter now, sounds to me like you would love that job! Sounds pissed that he didnt get a piece of the agency’s paycheck. But he does get some points for the self-promotion…note to all frustrated artists, self righteous indignation can get you places on the internets.

    Comment by Vincent — 21 July 2009 @ 5:45 am | Reply

    • Anybody who reads Mr. Rees’ blog on a regular basis knows that he rarely says anything too seriously.

      One of his recent campaigns was to promote himself as a scratch-off ticket guru.

      I am sure the ripoff ad upset him, but you took the quote above out of context.

      Comment by JP — 21 July 2009 @ 12:40 pm | Reply

  14. I can’t believe the corporate ripoff apologetics here. Rees’s work is original, witty, incisive, and well-aimed. Jamba’s “work” is none of those, nor is it good advertising, since it’s convinced me and others never to drink their product again. I don’t care so much about the legal issues; #2 had it right: a shameless ripoff can be legal. But we can shame the shameless if we bother to, and it may cause a rebirth of shame, which would be a good thing in this context.

    Comment by Mim Song — 21 July 2009 @ 6:24 am | Reply

    • Original, witty & incisive? Having read a good few of his strips since yesterday I fail to see how anything Rees has said could be considered original, it could almost have been performed by Bill Hicks. Although Hicks was funnier. And resorted to profanity less.

      Comment by Dutch — 21 July 2009 @ 11:19 am | Reply

      • While we may quibble over the merit of Rees’s works, the law, fortunately, does not consider itself an arbiter of taste. I for one don’t think “quality” or “artistic merit” should enter the discussion at all. That said, I do really like Rees’s comics.

        Comment by Andy — 21 July 2009 @ 1:03 pm

  15. “Rees’s work is original, witty, incisive, and well-aimed. Jamba’s “work” is none of those”

    If that’s the case, if the two are so obviously dissimilar, then why is Rees complaining? The text in Jamba’s ads is totally different in its aim, and the text is at issue here because the graphics are in the public domain.

    “I can’t believe the corporate ripoff apologetics here”

    Which ones are you referring to, the people who support Rees in his cynical attempt to pump lagging book sales or the bananaheads at Jamba who are trying to peddle their juices?

    Comment by Vincent — 21 July 2009 @ 7:22 am | Reply

  16. Hey all,

    Thanks for taking the time and weighing in on this. I’m viewing this is as a somewhat detached-from-reality question: not so much “should we take this blog seriously,” “is a boycott appropriate,” or “I think Rees’ real desire is…” but rather what the law provides, or should provide, as a remedy here.

    I sense a general consensus (and correct me if I’m wrong) that we think Jamba used these images because Rees used these images; whether you call that use “lawful inspiration” or “lawless theft” is a matter of sides. (I simply do not buy a coincidence theory. There are far too many public domain images out there and far too many similarities here for it not to be a direct taking.) I suppose the question becomes Should this be a taking that Rees gets to control? Is this too similar? And if this is too similar, is it the kind of use that the law should control or the creative industry should control? Who should slap Jamba’s wrist here: the courts, the industry, or the public? Is the fact that this was used in a highly commercial context relevant? Is the fact that people may actually believe Rees did this, or wanted to do this, or was paid to do this relevant?

    I think people are getting a little too caught up in the copyright side of this, which is arguable at best, and not considering the misappropriation/trademark/confusion of goods questions, which present an outcome far from obvious in my mind. For reference, comment #10 comes from the UK, where this question seems to be a lot easier. Fair use is a much narrower field in the UK and they don’t need to worry about copyright preempting the common law claim of “misappropriation” as we deal with stateside. Normally I find that frustrating (case in point), but today I wish this was all happening in the UK so Jamba could feel the consequence of their taking. (Naturally, this makes me question again how I would feel if it were Rees taking from Jamba.)

    I very much appreciate you coming to the blog. Thanks again.

    - Andy (of Andy on the Road)

    Comment by Andy — 21 July 2009 @ 8:00 am | Reply

  17. I think trademark is really the only area where one could consider this a feasible case. But I’m not sure if there should really be any recourse; creating a comic strip using public domain artwork that someone else has already used in a comic is not exactly open-and-shut from an ethical standpoint, either. No one can really lay claim to the use of specific public domain artwork, even within a particular context, without kind of ruining the whole point of the public domain for the rest of us.

    Comment by Kris — 21 July 2009 @ 10:01 am | Reply

  18. Great post, thanks.

    I think if it was Reese taking from Jamba, I would personally be more likely to consider it satire than a ripoff. Most people recognize Jamba Juice’s logo and ads, so when it turned up in Reese’s work, they would know what it is and laugh at the spoof on Jamba Juice. No one would assume Jamba Juice had anything to do with it or supported it in any way.

    Since it’s such a large brand taking from a much smaller one, people are left confused. A large number of people probably just assume Jamba came up with it themselves and loads of others think Reese was involved. The false idea that the creator was involved is pretty bad in any case, but it’s even worse in this context, because of how anti-corporate Reese’s work tends to be.

    Comment by DR — 21 July 2009 @ 10:01 am | Reply

  19. An excellent point, Kris. Goodness knows we already face enough challenges getting work into the public domain in the first place; the last thing I want is a loophole through which people can re-capture works that have already gone to the public. This is why I find this case so fascinating. This taking feels so wrong, and yet I have a hard time swallowing the medicine.

    Comment by Andy — 21 July 2009 @ 10:08 am | Reply

  20. [...] issue is interesting because it’s a fine line between homage and ripping someone off. One of the responses I saw said: Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of [...]

    Pingback by Juice sucks, drink wine! – Absurd Intellectual — 21 July 2009 @ 10:53 am | Reply

  21. Here is how I am going to approach this injustice.

    1) print out a stack of Get Your War On comics and label each with a price, $1 each seems fair.
    2) walk down to Jimba Juice.
    3) mill about first and slyly place the comics in their retail area.
    4) place an order for my whole department.
    3) stall so they start the order, but when time to pay I say “oops, I left my wallet in the car!”
    4) walk out.

    Comment by John — 21 July 2009 @ 10:59 am | Reply

  22. … or for the lazy, just call in an order for you whole department!

    Comment by John — 21 July 2009 @ 11:07 am | Reply

  23. If Sprite’s agency took a public domain shot of Andre the Giant’s face (presuming one existed), applied a color filter, then put some text at the bottom saying “OBEY your thirst.” I think we’d all agree that it was a direct ripoff of Shepard Fairey’s stuff, co-opted for Sprite’s own gain. A ripoff, even given the fact that Shepard fairy’s stuff is made of images ripped off from other people’s work. No difference – they’ve co-opted the way that Rees assembled those images to form a comic strip. Whether or not it’s legal, it’s lame.

    Comment by Steve — 21 July 2009 @ 11:09 am | Reply

  24. If the juice guys had used two other clipart characters, that could’ve been an homage. Well, unless it was two specific dinosaurs, or images from one of the other explicitly-clipart-based webcomics out there, but two other generic office workers would’ve gotten the idea across. Using identical images, balloons, and fonts makes it an obvious ripoff. I’m not as annoyed with Jimbo Juice as I am with the lazy ad company, it’s possible the juice suits were just ignorant, but at least juice is a product I can decide not to buy.

    Comment by Carl — 21 July 2009 @ 11:32 am | Reply

  25. Please, the “public domain clip art” in question comes from 2 different clipper books, 7 years apart – so to suggest that this is anything but a blatant ripoff of David’s work is to be ignorant in the extreme. Sure, they CAN do it, legally … but should they? Ethics should be more important than laws.

    Comment by bob hope — 21 July 2009 @ 11:41 am | Reply

    • Thanks for verifying the details of the clip art. Can you link us to the source(s)? I think it’d be relevant to this discussion.

      Comment by Andy — 21 July 2009 @ 3:53 pm | Reply

  26. What about this:

    http://www.mnftiu.cc/2002/11/26/008/

    That’s a bit more than a speech bubble, isn’t it?

    Comment by Nougat — 21 July 2009 @ 4:31 pm | Reply

  27. I’m not sure linking to a comic strip where Rees rips off someone elses Copyrighted works (Snoopy) helps his case much.

    Comment by Dutch — 21 July 2009 @ 8:21 pm | Reply

  28. Everyone defending jamba juice here is someone who plagiarizes at his own job.

    Comment by Gwen — 21 July 2009 @ 10:08 pm | Reply

  29. Tom Waits had a similar case, where they got a soundalike to sing for a Cheetos commercial. He sued and won. More info here plus an audio clip: http://www.tomwaitslibrary.com/copyright-fritolay.html

    Rees should sue and he’ll probably, at least, get a settlement equivalent to what he would and should have been paid for the appropriation. I don’t think some of the commenters here really know much about intellectual property law. This is definitely on the line of illegality.

    Comment by Robert — 23 July 2009 @ 9:47 am | Reply

    • *Correction: It was for a Doritos commercial. Cheetos, doritos, you say potato, I say…

      Comment by Robert — 23 July 2009 @ 9:49 am | Reply

    • An excellent point. I was thinking of the Waits / Frito Lay case when I proposed finding remedy under trademark law. Any state law Misappropriation-like claim, like the one used in Waits, may face a counter under copyright preemption, but I think a good lawyer could argue out of that. I’d have to read the False Endorsement / Lanham Act statute to see if Rees has a cognizable claim under that.

      Comment by Andy — 23 July 2009 @ 9:59 am | Reply

  30. Hey Andy:

    I did an interview with David Rees yesterday for my podcast, and posted up the Jamba Juice relevant snippet today: http://www.pydkpodcast.com/?p=590

    We talked about your trade dress argument a bit. I didn’t remember where I read it off the top of my head in the past week, but I’ll be sure to give your entry full credit when I post the full episode on Monday. Great post.

    Comment by Euge — 23 July 2009 @ 10:49 am | Reply

    • Thanks very much! Hearing Rees speak in person was excellent. Your interview really helps to set the mood for the discussion.

      Comment by Andy — 24 July 2009 @ 8:32 am | Reply

  31. Legal arguments aside, the thing I find totally lame is the corporation’s response that this blatant rip-off was an unfortunate coincidence:

    (from Jamba Juice)

    “In the spirit of promoting Jamba’s message of summer bliss we specifically chose Tom Tierney-created clip art images to illustrate the state of office bliss-less-ness we were hoping to alleviate through our products. The Summer Bliss campaign has been running since May 25thusing these stylized images to promote a light-hearted message of summer fun.

    We understand there has been some misunderstanding about the Summer Bliss campaign artwork and the comic strip created by David Rees due to the use of these clip art images. Jamba Juice would like to expressly communicate that the Summer Bliss promotion was not intended to imply any affiliation with Mr. Rees, Mr. Rees’ endorsement of Jamba Juice and its products, or Jamba Juice’s endorsement of Mr. Rees’ work.”

    Lame-O

    Comment by brenton fletcher — 23 July 2009 @ 7:55 pm | Reply

  32. [...] — Andy @ 7:00 pm This is a slightly more whimsical (and short) approach to a topic I spilled a great deal of ink on last week.  I saw this bumper sticker on a traffic pole [...]

    Pingback by Bad Call? « Andy on the Road — 29 July 2009 @ 7:05 pm | Reply

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