Saatchi & Saatchi, J.C. Penney’s ad agency, has apologized for the teen sex J.C. Penney ad, even though the company says it didn’t make it, really. That part’s predictable. The confusing part is where the media-savvy ad agency says it intends to make the commercial go away:
“Saatchi & Saatchi has a long history of producing principled and respectful advertising for JCPenney and its entire client roster. The Speed Dressing TV commercial, which was submitted to the 2008 International Advertising Festival at Cannes, was created by a third party vendor without JCPenney’s knowledge or consent. It was produced and released to the public without any knowledge or prior approval from JCPenney. Saatchi & Saatchi did not enter the spot and deeply regrets the message this ad presents. Saatchi & Saatchi apologizes to JCPenney, its associates and its customers. The commercial is being removed from public circulation.”
Exactly how are they going to do that?
Our understanding is that YouTube (GOOG) only takes down videos when the copyright owners request it — and as Saatchi & Saatchi has just explained, it’s not their video. Perhaps J.C. Penney could lob a complaint about the use of its trademarks. But if YouTube concedes to that request, it’s just made its current copyright problems much, much bigger, because its expanded the number of people who can claim that a video shouldn’t be on the site.
The bigger issue: As Saatchi & Saatchi knows full well, you can’t take something off the Internet once it’s up there — if they don’t believe us, check out Wikipedia! Nick Denton’s Gawker has already served notice that it intends to host the video if YouTube pulls it — and it will have a good argument that its news value will trump anyones copyright claim at that point.
We’ve asked YouTube for their position on this one, and in the meantime we’ll be keeping an eye on Saatchi & Saatchi’s fight against the Internet. Our money’s on the Internet winning this battle.
UPDATE: In an e-mail, YouTube said that a video infringes on a trademark, they will take it down:
“We don’t comment on individual videos, but it is our policy to remove videos that contain trademark infringements. Please note, however, that not every third-party use of a trademark constitutes an infringement.”
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