A view from Oliver Smith

Aldi's spoof of John Lewis is enough of a world away to use the new parody law

A new Parody law that was introduced last year means the Aldi play on John Lewis' Christmas ad is "fair dealing" according to Oliver Smith,...

This is a clear and undisputed copy of a small part of John Lewis’ new ad which features a young girl looking up at the moon through a telescope and seeing the Man in the Moon

Aldi has launched a TV advert which parodies the new seasonal John Lewis ad.  The spoof features the elderly Man on the Moon sitting on a bench looking at the Earth through two telescopes in turn.  Both have price tags on – an expensive one from John Lewis and a cheaper one from Aldi. He says he likes them both but is over the moon when he sees the lovely granny from previous Aldi ads floating down from space in an armchair.  

This is a clear and undisputed copy of a small part of John Lewis’ new ad which features a young girl looking up at the moon through a telescope and seeing the Man in the Moon.  She sends him a telescope so that he can see her and the rest of the world and not feel lonely anymore.  

This Aldi advert takes advantage of the new parody law which came into force a year ago.  This allows "fair dealing" with copyright works for the purpose of parody.  It could be argued that Aldi uses such a small part of the original John Lewis ad, that this is not a substantial copy and therefore not infringing.  

EU judgments have said the new work must be sufficiently different to the original which is certainly the case here.  It must also be a "fair use"

However, it is not quantity which determines whether a copy is substantial and the scene with the man sitting on the bench on the moon is a significant part of the John Lewis advert and may therefore infringe.  However the parody exception should cover the use.  EU judgments have said the new work must be sufficiently different to the original which is certainly the case here.  It must also be a "fair use".  This is not defined in statute.  If a parody work can substitute for the original, such as a cover of a song, and the owner of the original is likely to lose sales then it may not be fair use.  Although the usage here is by a direct competitor, that in itself does not necessarily make the use unfair.  The amount of the original ad used is also quite small which also means it is likely to be considered fair use.  

The advantage of parodying a very well-known and much discussed advert like the John Lewis one is that it is an easy way of garnering attention and media coverage for your own spoof ad.  Companies should beware, however, not to make their spoof confusingly similar to famous ads as this could amount to unlawful passing off, particularly in online ads where traffic might go to the spoof ad thinking it is the famous one. Even if the spoof makes it clear that it is for a competitor the initial confusion and diversion of traffic can amount to passing off.  More advertisers are likely to take advantage of the new parody exception to copyright law to generate attention for their products.