Media Perspective: Memo - when taking inspiration, respect the original source

At every industry conference, for whatever industry, the speakers have a single thought in common when discussing their technological future - we mustn't make the mistakes that the music industry made.

Understandably, no-one wants to be pushed into irrelevance, suing their best customers, gazing at dwindling coffers. And one of the big mistakes the music industry made was not being able to see past existing legal assumptions.

Take the case of Justin Ouellette, the creator of Muxtape, a service that swept the web a few months back, allowing people to create online mix tapes and share them with their friends. The site was taken down recently, and Mr Ouellette wrote a rueful blogpost about the process - explaining how he was being simultaneously threatened by record company lawyers and courted by the same company's marketing execs. As he describes one occasion: "The meeting alternated between an intense grilling from the legal side ('you are a wilful infringer and we are mere hours from shutting you down') and an awkward discussion with the business side ('assuming we don't shut you down, how do you see us working together?')."

No wonder he decided to pull out of the process altogether. The problem here, of course, is that the music lawyers are technically right: Muxtape probably was breaching the law, it's just that it's in no-one's interests to point that out. If the music industry had been able to look at its rights in a more nuanced way, it might not be in the mess it's in. And I suspect that we're facing similar issues in advertising - where being legally, technically right isn't enough any more.

Agency people have always drawn on the outside world for ideas - sometimes that means glorious collisions of pop culture and high art, sometimes it's crass, blatant rip-offs. And, because you can't copyright an idea, mostly we get away with it. The original artists threaten to sue, realise they can't and slink away disgruntled and resentful.

And that used to be the end of the story: most of the people who saw the "inspired" ad would never know the story of its inspiration. Now, of course, all that has changed: the original artists have as much access to popular media as we do, and, often, have a more compelling story.

So everywhere your lovely new ad goes, it's accompanied by tales of theft and dishonour. And clients never like that. Which means we have to develop a less legalistic way of dealing with ideas and inspiration. We need to think about what seems moral more than what we can get away with. We need to make sure the people who inspired us are comfortable with what we've done. Because no-one wants to end up like the music industry.

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