Great Minds Think Alike—Or Do They?

In a business based on idea generation, nothing stings more than the accusation of theft. Last week, a federal court ordered Taco Bell to pay $30.1 million to two men who say they dreamed up the talking chihuahua that TBWA\Chiat\Day made the cornerstone of one of the most popular ad campaigns of the ’90s. The case reignites an old debate about how advertising ideas are generated, protected and, ultimately, paid for.

Two former TBWA\C\D creative directors, Chuck Bennett and Clay Williams, testified before U.S. District Court in Grand Rapids, Mich., last month on the genesis of their Taco Bell campaign. After several weeks of testimony, the jury ruled in favor of plaintiffs Joseph Shields and Thomas Rinks, who first charged Taco Bell with breach of contract in 1998, claiming they pitched the character to the fast-food chain more than a year before the attitudinal canine appeared in commercials from the Playa del Rey, Calif., agency.

Taco Bell, which plans to appeal, issued a statement noting that the company “continues to strongly believe” that TBWA\C\D created the chihuahua character. And Bennett told Adweek that, “if we had known the idea existed, we would have killed the idea. That’s something you do as a good creative. We’re not in the business of ripping people off.”

Yet accusations of stealing campaign ideas are nothing new for agencies, who hear claims of idea theft within their own creative departments, from clients, from other agencies and from outside sources. In April, Swiss filmmakers Peter Fischli and David Weiss accused Honda shop Wieden + Kennedy, London, of lifting the concept for the heralded two-minute “Cog” spot from their 30-minute film Der Lauf der Dinge (The Way Things Go).

In the 1987 film, everyday objects such as string, soap and balloons move in a dominolike chain reaction fueled by water, fire, gas and gravity. In the spot, parts of the Honda come together in a Rube Goldberg-style setup.

A rep from Honda UK says the automaker received a letter in April from lawyers representing the filmmakers, expressing their concerns. “Honda responded as requested the following week and has received no further communication,” said the rep. “Honda therefore has no reason to believe this matter is ongoing.”

“We’ve always said the film was an inspiration,” acknowledged W+K art director Matt Gooden, but he added that, “a chain reaction is not an original idea. They must have been inspired by something to make their film.”

Pop-culture and art references are made in advertising all the time, said Vince Engel, North American creative director at Leagas Delaney, San Francisco: “Advertising reflects popular culture and borrows from it heavily to be relevant. It has to. Sometimes people get confused about what’s inspiration and what’s plagiarism.”

Leagas Delaney was involved in a legal battle of its own last year when Nike charged that a Sega Dreamcast spot the agency had produced was too similar to an ad the shoe maker did years prior. Sega settled out of court, donating $100,000 to Boys & Girls Clubs.

Says Bob Scarpelli, U.S. chief creative officer, chairman at DDB Chicago: “It gets tougher every day. What’s a parody, what’s a ripoff? It’s very nebulous.” DDB’s “Whassup?” campaign for Budweiser was inspired by a short film created by Charles Stone—instead of “borrowing” from the concept, the agency enlisted Stone as a member of the creative team and asked him to star in and direct the resulting spots.

Part of the problem, noted Rick Kurnit, partner in Manhattan law firm Frankfurt Kurnit Klein & Selz, is that “agencies have never gotten to any kind of licensing, royalty, intellectual property-type model, so advertisers … can do whatever they like.”

As far as the Taco Bell case, he said wryly, “the good news is that a brilliant advertising idea is worth $30 million. If only agencies could get a $30 million bonus for a great campaign.”

Plaintiff Rinks said he now plans to pitch the dog concept to other clients. “We’re super excited that we finally got a chance to tell the story and the world will finally know the truth about what happened,” he said.

Rinks said that he and Shields, working under the name Wrench, were approached by two Taco Bell execs at a licensing show in New York in 1996, where Wrench was showcasing merchandise featuring their trademarked cartoon character, “Psycho Chihuahua.” “They said they were looking for a mascot for their brand,” said Rinks.

After several months of discussions, Rinks said, Taco Bell requested a proposal outlining a payment structure for use of the character, including a percentage of the ad budget and retail-licensing sales.”If they use it a little, they pay us a little. If they use it a lot, they pay us a lot,” said Rinks of the proposal Wrench sent. “They decided to steal it instead.”

The judgment was based on that proposal, said Wrench attorney Douglas Dozeman. “The access to these ideas was overwhelming,” he said. “It wasn’t like we saw them at the licensing show and never heard from them again.”

TBWA\C\D executives declined to comment on the case. Bennett, who now directs commercials, said he and Williams came up with the idea at a Mexican cafe in Venice, Calif., where they spotted a chihuahua walking with no master. “His attitude and sense of purpose was so counter to his size,” he said. The first commercial featuring the chihuahua, which broke in 1997, showed him snubbing a female suitor in favor of Taco Bell. The Wrench duo claimed that idea was also theirs.

The crucial factor in the case, said Kurnit, is that the client entertained Wrench’s ideas without some kind of contractual agreement.

In contrast, if client execs had heard Wrench’s ideas as part of an agency presentation in a new-business review, there would have been no case. “I’ve been trying to get ad agencies to get agreements that the clients won’t use their ideas without paying them for years,” Kurnit said. “The clients have a speculative pitch and their attitude is, We can use anybody’s ideas.” —with mae anderson