Commentary

72andSunny Cleared of Copyright Infringement Claims Over Starbucks Ad

In late 2014, 72andSunny reached out to Brooklyn mural artist Maya Hayuk to participate in the creation of an ad campaign for Starbucks. The work was to promote the new Starbucks Mini Frappuccino. After concepting with 72andSunny for eight days on the project, Hayuk told the agency she was too busy to create the new work and the two parties parted ways. 


When the Mini Frappuccino campaign launched in 2015, Hayuk felt the rainbow-style artwork the agency used in the campaign was a bit too similar to her own work and she filed a $750,000 copyright infringement claim against Starbucks.

The lawsuit stated: "Starbucks brazenly created artwork that is substantially similar to one or more of Hayuk’s copyrighted works.” Hayuk's lawyer added: “When things like this happen, it cheapens the value of the art -- it’s really true. And her only source of income is her art.”

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Alas, Hayuk's claim did not stand up in the U.S. District Court for the Southern District of New York which, on January 12, ruled that Hayuk's claims amounted to an attempt to monopolize concepts based on certain colors or shapes.

The court rejected Hayuk's claim because it said her work was "fine art" and, because of that, her work is not subject to the usual tests of similarity that separates non-protectable ideas from protectable expression.

On this, the ruling read: "Plaintiff urges the Court to apply the "ordinary observer" test, asserting that "the Hayuk Works are not composed of unprotectable elements -- they are fine art, creations of pure imagination" and 'incapable of being parsed into protectable and unprotectable elements.' The mere status of being 'fine art,' assuming the Hayuk Works to be such, does not, however, confer automatic protection over the entirety of the works, and Plaintiff cites no authority to support this proposition." 

The court also held that Starbucks couldn't be held liable for stealing the core of Hayuk's work which the court said amounted to a claim that Starbucks copied her style, which is not protected by copyright law. Specifically, the ruling read: "What the Plaintiff has described as the 'core' of her work in the aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred."

While it's always nice to root for the underdog, sometimes the agency wins and that's one of those times. 

In late 2014, 72andSunny reached out to Brooklyn mural artist Maya Hayak to participate in the creation of an ad campaign for Starbucks. The work was to promote the new Starbucks Mini Frappuccino. After concepting with 72andSunny for eight days on the project, Hayuk told the agency she was too busy to create the new work and the two parties parted ways. 

When the Mini Frappuccino campaign launched in 2015, Hayuk felt the rainbow-style artwork the agency used in the campaign was a bit too similar to her own work and she filed  a $750,000 copyright infringement claim against Starbucks.

The lawsuit stated: "Starbucks brazenly created artwork that is substantially similar to one or more of Hayuk’s copyrighted works.” Hayuk's lawyer added: “When things like this happen, it cheapens the value of the art -- it’s really true. And her only source of income is her art.”

Alas, Hayuk's claim did not stand up in the U.S. District Court for the Southern District of New York which, on January 12, ruled Hayuk's claims amounted to an attempt to monopolize concepts based on certain colors or shapes.

The court rejected Hayauk's claim because it said her work was "fine art" and, because of that, her work is not subject to the usual tests of similarity which separates non-protectable ideas from protectable expression.

On this, the ruling read, "Plaintiff urges the Court to apply the "ordinary observer" test, asserting that "the Hayuk Works are not composed of unprotectable elements - they are fine art, creations of pure imagination" and 'incapable of being parsed into protectable and unprotectable elements.'  The mere status of being 'fine art,' assuming the Hayuk Works to be such, does not, however, confer automatic protection over the entirety of the works, and Plaintiff cites no authority to support this proposition." 

The court also held that Starbucks couldn't be held liable for stealing the core of Hayuk's work which the court said amounted to a claim that Starbucks copied her style which is not protected by copyright law. Specifically, the ruling read, "What the Plaintiff has described as the 'core' of her work in the aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred."

While it's always nice to root for the underdog, sometimes he agency wins and that's one of those times. 

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