Is Apple’s Eminem Spot Too Much Of An Encore?

Similarities that came to light last week between a 2002 spot for Lugz footwear and a new commercial for Apple’s “iPod + iTunes,” featuring Eminem, have once again inspired discussion about intellectual copyright issues, and what, in terms of ideas, agencies and advertisers can actually own.

The Lugz spot, with a hip-hop soundtrack by Funkmaster Flex, featured a black silhouette in an urban landscape that’s recast in a color palette of reds, oranges and yellows. The Apple spot, featuring Eminem and the song “Lose Yourself” from 2002’s 8 Mile, also features a black silhouette—in this case, of the Detroit rapper—set in an urban landscape that’s recast in a color palette of reds, oranges and yellows. There are subtle differences between the two—for example, the Eminem spot at times uses Jackson Pollock-like paint splotches to create its color—but to those who created the Lugz spot, many industry observers and a host of ad bloggers, the similarities far out-tallied the differences. “The total look and feel of the spots is practically identical,” said Larry Schwartz, a principal of New York-based JSSI, of which Lugz is a subsidiary.

“I’ve never seen so many similarities in a spot,” said Rory Braunstein, a group creative director at Interpublic Group’s Avrett Free Ginsberg, who led the 2002 Lugz creative team. Omnicom Group’s TBWA\Chiat\Day, which created the Apple spot, referred calls to the client, and Apple did not return calls.

At the press conference for the launch of the video iPod earlier this month, CEO Steve Jobs gushed about the spot. “We’ve been known to do these silhouette ads, and we’ve been working on one for the last two, two-and-a-half years that we’ve always dreamed of doing, and finally we’ve been able to do it,” he said. “It takes our silhouette campaign up to a whole new level.”

Jobs’ hint that this may be the first of a new generation of silhouette ads is part of what concerns Lugz, which according to Schwartz is considering its legal options. Said Schwartz, “Is it an inappropriate, unfair use of our copyrighted work? It seems pretty clear that it is.”

But as with so many creative ideas, it may be impossible to discern whether the look and feel of the two ads is merely a coincidence borne, in part, by the ad industry’s fascination with computer-generated effects and urban imagery. Lugz ran the spot nationally for only six months in 2002, has parted ways with Avrett and no longer uses similar imagery in its ads. It did, however, according to a spokesperson from Avrett, win a silver nomination at the 2003 D&AD Awards, indicating it had a following among creatives.

“Copyright law is [such] that you can generally use someone else’s idea; you just can’t copy a particular way they exploited that idea,” said Jeffrey A. Greenbaum, partner at Frankfurt Kurnit Klein & Selz in New York, who specializes in advertising and intellectual property. “There is just no easy way to know when you’ve crossed the line. Agencies often feel that their ideas have been ripped off, but that doesn’t mean that there is a claim. When you are using someone else’s idea, the first question you ask is, ‘Did you reduce that idea to the most essential element?’ And then, ‘Did you take that idea and come up with your own completely original expression of that idea?'”