World: Analysis - Director's day in court shows agencies perils of plagiarism

The legal line between theft and inspiration is a fine one in Europe.

The cult French filmmaker Luc Besson has just wrapped his latest blockbuster: the story of a legal battle between an enraged director and a giant advertising agency. But rather than being captured on celluloid, the real-life drama has been played out in the French courts. It has earned Besson and his co-producers almost three million euros.

That's the sum Publicis Conseil has been ordered to pay Besson (and the production company Gaumont) after a court agreed the agency had plagiarised one of his films, The Fifth Element. French agencies are still reeling from the decision, which they feel sets a dangerous precedent.

"There's concern that film directors and artists will be scrutinising ads to see if they can make some money," Olivier Altmann, the co-president and creative director of Publicis Conseil, says. Altmann, who was not working at Publicis when the offending campaign for the French mobile phone company SFR was conceived, admits that he would not have taken the same approach. He says the creative team behind the spot - Antoine Barthuel and Daniel Fohr - left for Leo Burnett some months ago.

The ad in question, which featured TV and print executions, starred the actress Milla Jovovich dressed in a costume similar to the one she wore when playing Leeloo in The Fifth Element. To sci-fi fans, her bright red hair and white bandages were instantly recognisable.

Certainly, there was no fooling Besson, who sounds victorious but still irritated by the agency's attitude. "I only found out about the campaign when I was on my motorbike and saw a giant billboard," he says. "The image was an exact copy of my film: same actress, same hairstyle, same costume, same set. I nearly came off my bike."

The fact that Jovovich is Besson's ex-wife no doubt added to the shock.

At first, he assumed Publicis had paid Gaumont for permission to use the character. "I soon found out that was not the case. I called Publicis several times to ask them to apologise, but they never returned my calls. I found their attitude contemptuous, so I called in my lawyer."

Besson says that, just before the hearing, Publicis offered him "a derisory sum" to settle matters. He told the agency to write a cheque for 300,000 euros to his favourite charity. Publicis refused, and was then fined that sum in court, having been found guilty of "parasitism". Then the agency made its biggest mistake - it appealed.

"Because the appeal froze the court's decision, they went on screening the ad. It was as though they were laughing in my face," Besson says.

The court evidently agreed: Publicis lost its appeal and was fined a total of 2.75 million euros, a record sum. Besson says he will give his share to charity. He hopes the decision will make creatives "think twice before copying the work of others".

Altmann is concerned that the decision has made the creative process more perilous. "We are inevitably inspired by the culture we absorb, including movies," he says. "We already scrutinise our work for potential legal problems, and we will be doing so even more carefully in the future. But when does inspiration become parasitism?"

Besson believes he has the answer. "Inspiration flatters," he says. "Imitation annoys."

He is not the first to accuse an agency of stealing his ideas - although he is by far the most successful. In 1999, the film-maker Mehdi Norowzian was forced to pay £200,000 in court costs when he failed to prove that a Guinness commercial from the agency Arks in Dublin had copied his short film Joy.

Such a risk may have discouraged the artist Gillian Wearing from taking action over a Volkswagen ad, which she claimed copied her series of photographs featuring people holding placards describing their moods.

More recently, the Swiss conceptual artists Fischli & Weiss suggested Wieden & Kennedy's "cog" for Honda copied their film The Way Things Go.

In Germany, in a variation on the theme, Marlene Dietrich's daughter successfully sued an agency over a campaign that evoked her mother.

Brinsley Dresden, a specialist in advertising law at the law firm Lewis Silkin in London, says: "Most cases in the UK are settled out of court. It's not uncommon for Hollywood film companies to threaten litigation, but it's mostly just sabre- rattling."

He explains that British law protects the expression of an idea, rather than the idea itself. In other words, unless your ad is a carbon copy of another person's work, you are relatively safe.

Dresden is a member of the Global Advertising Lawyers' Alliance, an organisation that advises agencies and clients on this sort of issue. GALA's website is at: www.gala-marketlaw.com.

The best solution, as touted by the small French shop No Good Industry, is obviously to work collaboratively with the artists. The agency has created a factory-type co-operative of young visionaries. "There is a goldmine of talent in every city," the agency boss, Nicolas Gayet, points out. "Of course these people have great ideas, but you should pay for them."

Meanwhile, it seems that the floodgates have opened. Last week, another cult French film director, Jean-Jacques Beineix, went to court accusing Young & Rubicam of using several aspects of his film Diva in a 1998 spot for another telephone company, Bouygues Telecom. This time, the court sided with the agency.