Willy Wonka ad shows effectiveness of social media IP policing policies

By Tony Poland, LegalMatters Staff • The Willy Wonka attack ad against Justin Trudeau on Twitter is a good example of how intellectual property rights enforcement procedures on social media platforms can give rights owners much quicker results than courts, says Toronto IP lawyer John Simpson.

Early in the recent federal election, Twitter pulled the Conservative Party of Canada attack ad from its platform after Warner Bros. complained that a scene from the 1971 film Willy Wonka and the Chocolate Factory was used without permission. The complaint came a day after the video was posted and it was removed a short time later.

“This just shows that rights owners can get really fast results using the complaint procedures on social media platforms rather than suing someone,” says Simpson, principal of IP and new media law boutique Shift Law Professional Corporation. “It’s quick and it is cost-effective.”

Trudeau’s face was superimposed on movie character

Global News reports the ad posted by the official Tory party account showed Trudeau’s face superimposed over that of character Veruca Salt, who sings “I want it now.” The introduction to the video read “The only reason for an election is because Trudeau wants a majority,” according to the news report.

Twitter told Global that it removed the tweet after receiving a copyright infringement complaint under the United States’ Digital Millennium Copyright Act (DMCA).

Simpson says large content owners such as Warner Bros. tend to be vigilant in protecting their intellectual property.

He says there are always two issues in a copyright case – “whether there’s any technical infringement and whether anyone cares.”

“There are works being reproduced frequently, especially on the internet, that the owner of copyright knows about but doesn’t care,” Simpson tells LegalMattersCanada.ca. “Arguably, something like this would be seen as some funny tongue-in-cheek publicity for an old movie that the studio made their money from long ago. And this attack ad is certainly no substitute for watching the movie. So, you wonder why they would care.

“But clearly they did care because they filed a complaint with Twitter through its complaint procedure and got a very swift result.”

It could have been argued the ad was a parody

He says a case could have been made that the ad was a parody, which is considered fair use in the Copyright Act.

However, Simpson says because the complaint was filed with the DMCA, Twitter was compelled to act quickly.

“Twitter’s copyright abuse process piggybacks on the Digital Millennium Copyright Act, like many other social media platforms,” he says. “The DMCA allows a copyright owner to send a notice to an internet service provider. Under the procedure, the alleged infringer is given an opportunity to defend itself and if they don’t, the work is immediately removed.”

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When notice is given under the DMCA, the social media platform tends to act quickly because the Act basically says that they could potentially be liable for the infringement if they don’t take it down, Simpson says.

“The platforms will often err on the side of removing alleged infringements and many times legitimate use of material, things that are not trademark or copyright infringement, get unfairly penalized,” he says.

Some party members thought the ad was in ‘poor taste’

In this case, it is unlikely the Conservatives put up much of a fight to keep the ad on Twitter, Simpson says. According to Global, even members of the party thought the ad was in “poor taste.”

“It appears the Conservative party was under some criticism already so I am sure they were quite happy to just drop it rather than rush to its defence,” he says. “I suspect there was no response at all so the issue has not really been considered on the merits, which is perhaps an interesting discussion in itself.”

Simpson says it’s important to note that “you don’t get something taken down simply by complaining.”

“Any social media platform, any internet service provider, is going to give the alleged infringer some opportunity to respond. If they don’t respond adequately then it will be removed,” he says.

However, Simpson says the Digital Millennium Copyright Act, which is known as a “notice and takedown mechanism,” can be unfair.

‘It’s a pretty draconian weapon for rights owner’

“It’s a pretty draconian weapon for rights owners because in a lot of cases, someone’s not going to be able to respond quickly and they’re not going to be able to afford a lawyer to answer on their behalf. And if they don’t respond then whatever they posted just gets taken down regardless of the merits,” he says. “The DMCA is not something we have in Canada, and one of the reasons for that is because it is prone to abuse.”

Simpson explains that in Canada, we have what’s called a “notice and notice regime.”

“So, for example, I give notice to Rogers that you are infringing on my copyright and Rogers then gives notice to you that they have a complaint,” he says. “But I can’t get Rogers to just take it down by complaining. It is an issue of fairness.

“It is worth noting that in this case, if the Conservative party had actually wanted to continue running the ad, they would certainly have had an arguable case that this was fair dealing in Canada or fair use in the U.S.,” Simpson adds.