18 December, 2018
On the first day of Christmas, my true love gave to me…a Carrot in breach of IP?
There are few advertising images more iconic than the sight of a big red truck merrily rolling through snow covered village streets. For many, it is the image that announces the official start of the Christmas season.
Yet this year, many households could have been forgiven for starting their festivities a little early, as many TV viewers have understandably mistook this year's Aldi advert featuring Kevin the Carrot to be the timeless and seminal Coca Cola commercial.
There is no doubt that the adverts are exceptionally, and in all likelihood deliberately, similar; both feature a classic winter scene and an illuminated red lorry being driven through the snow as fresh-faced children peek out of their windows in expectation. It is only after a few seconds that the Aldi parody becomes apparent as the driver is revealed to be their festive mascot, before zooming out to reveal a large 'Kevin the Carrot' logo on the lorry's side.
But as families across the country let out a collective sigh of "Oh, that is clever. Well played Aldi", those of us with a legal mind immediately wonder what serious legal principles govern this light-hearted Christmas joke.
The answer lies in the UK's Copyright and Rights in Performances (Quotation and parody) Regulations 2014, which states that:
"Fair dealing with a work for the purposes of caricature, parody, or pastiche does not infringe copyright in the work."
This means that it is possible to create parodies of copyrighted works without needing permission from the rights-holder and without committing a breach. However, this ability is restricted by law to parodies that can be considered 'fair dealing' - a balancing act between the amount of work that is copied and the potential harm it could cause.
In the case of Kevin, it is difficult to see what harm has been caused to the soft drink giants. The parodying image of the truck lasts only a few seconds before the joke is established, after which it is hard to misinterpret the giant 'Kevin the Carrot' lettering on the side of the van, or indeed the cartoon vegetable himself actually driving it. Commercially speaking as well, there is little strength in claiming that Coca Cola will be damaged by the advert as the two brands are not direct competitors. If anything the supermarket's advert will only drive sales for the soft drink giant as everyone is reminded of just how integral their big red truck has become to the holiday season.
In short, Kevin and Aldi might be walking close to the line but, unlike the cartoon himself who ends up with his truck balancing over a cliff, they seem to have been steered safely from a legal standpoint.
Forbes regularly advises on all matters relating to copyright and IP law. Contact us at John Pickervance, or 0332071130 to discuss any issues further.
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