jibjab_toyota jibjab_toyota

JibJab Claims Toyota Rip-Off

JibJab and Toyota

Cold Hard Flash brings news of a legal case that JibJab is pursuing against Toyota over this spot:

Click the following link to download a PDF of the complaint for damages to the California District Courts. JibJab is holding Toyota responsible for the ad, instead of Hoffman Lewis, the ad agency that produced the spot. The website TubeFilter summarized the document’s complaints:

1. Toyota Motor Sales, U.S.A., Inc. “…intentionally, knowingly and wilfully copied the JibJab Works in order to personally benefit from the widespread customer recognition and acceptance of said works and to capitalize upon the market created by these works.”
2. Toyota Motor Sales, U.S.A., Inc. made “unauthorized use of the JibJab Logo in interstate commerce and advertising…”
3. Toyota Motor Sales, U.S.A., Inc.’s “use of the JibJab Logo in its commercials is likely to confuse, mislead, or deceive consumers, the public, and trade as to the origin, source, sponsorship, or affiliation of said products, and is intended, and is likely to cause such parties to believe in error that [Toyota Motor Sales, U.S.A., Inc.]’s products have been authorized, sponsored, approved, endorsed or licensed by JibJab…”
4. Toyota Motor Sales, U.S.A., Inc. “intended to capitalize on [JiBJab]’s goodwill associated therewith for [its] own pecuniary gain.”

It should be noted that the offending spot is actually a visual mash-up of two different JibJab productions–the cut-out style animation of Founding Father’s Rap and the Starring You Tap Dance in which users can insert different heads on top of a live-action actor.

Personally, as unoriginal as I find the ad agency’s use of these techniques, copying someone’s graphic style–especially ones like these that aren’t exclusive to JibJab–would be a dubious case. However, Hoffman Lewis made the fatal mistake of also copying JibJab’s well-established animated trademark (the heads of the brothers who say “Jib” and “Jab”). In my eyes, that changes the dynamic of the entire commercial because it signals a clear intent on Toyota’s part to deceive viewers into thinking that JibJab created the spot.

Obviously, let me say that I’m no lawyer, but I have served as an expert witness for major corporations in similar infringement cases. Often times, the “this company stole my idea” claim is frivolous, especially when it’s coming from an amateur artist or writer with no industry experience or understanding of how the business works. In this instance though, I feel that JibJab has a legitimate concern. Judges seem to agree so far too: Toyota has twice requested a judge to dismiss the suit, and both times the judge has nixed Toyota’s motion.

It’ll be interesting to watch how this case plays out through the legal system and who ends up on top. Perhaps it’ll also serve as a wake-up call to all the ad agencies who freely take their ideas from existing animated films produced by independent filmmakers and small companies that lack JibJab’s resources to defend themselves.

(Disclosure: JibJab is a sponsor of Cartoon Brew’s 2011 Student Animation Festival. I learned about this case though by reading about it on Cold Hard Flash.)

  • Artist Ripped-Off by Jib Jab

    Turnabout is fair play, I suppose.

    • amid

      Would you care to elaborate or does an unsubstantiated anonymous one-line comment qualify in your mind as a solid argument?

  • Orson Welles

    I actually did think it was jibjab who did that commercial…

    Especially that ending of ends-soon, read: jib-jab

    • Jason Hendrich

      Yeah no kidding. I understand parody and such but this is a clear indicator of ripoff especially if Jib Jab wasn’t paid for it.

      • David Breneman

        It’s hard to parody something without indicating that which you are parodying. Generally, courts have held that parody is an acceptable derivative use. And if it’s not, Jib-Jab is, as the Dodge Sheriff used to say, “In a HEAP ah’ trouble!” I hope Fiat doesn’t sue me for that…

  • Gerard de Souza

    Agree. What you say, Amid. Using the same style or technique is kind of grey but copying JJ’s trademark even as an homage or parody….. I’d say they have a pretty strong case.

    That’s what Perry Mason would say.

    I know if I saw that commercial I would think JibJab did it.

  • Inkan1969

    It’s an homage.

  • I agree with Gerard, cut out heads on human bodies isn’t exactly new (even though Jib Jab made it cool). But the two heads inside the circle and the red banner, too close.

  • Can the commercial be protected as a parody?

  • seems to me that short comedic content can “parody” a popular commercial… but a commercial “parody” of short comedic content is really just a straight rip-off.

    this is no contest right?

  • I say, that is rather interesting. I wonder what will the defense consist of

  • Celia

    I thought Jib-Jab made this commercial, which might explain why I sort of like it.

    There’s not a lot of creative interpretation here. If Toyota is smart, they will settle.

  • AaronSch

    That’s a blatant rip-off. It’s one thing to put cut-outs over human bodies but they crossed the line when they stole the style of Jib Jab—right down to the logo design! Ad agencies have been pushing the envelope on business ethics and need to be called on the carpet for this kind of intellectual theft.

  • JW

    It’s so much safer to imitate other producers of pablum.

  • couldn’t come up with more than two presidents?

  • KatellaGate

    I concur with Amid and most of the previous posters… it was just fine until the “logo” dropped down with a staccato “ends soon”. That’s where they showed their intention to mislead.

  • TJR

    Not that I don’t want to support the artists….but I am not sure what the fuss is about?

    They don’t say “Jib Jab” at the end. They say “End’s Soon”.

    Yes it looks similar, and sounds similar. But that’s part of what parody does. It looks and sounds similar.

    it may not be funny parody, but it does look like parody to me.

    Yes there are going to be some people who think the commercial was done by Jib Jab because they aren’t paying close attention, but that shouldn’t be the fault of the advertisers. It is the fault of the viewer.

    I guess you could make the argument that this parody is being made to sell a product rather than just to satirize, or editorialize. But I have seen commercials parody various aspects of popular coverage before such as popular films, TV shows, pop icons etc in the past with no problem.

    And I am not saying that they were not intentionally trying to mislead the public into thinking it was a Jib Jab production. But looking at this completely objectively it seems to me that they could just as easily make the argument that their only intention was to parody and pay homage.

    • amid

      We can all offer armchair legal assessments, but understanding the four underlying principles of fair use will help everyone make a more informed judgment. I’d recommend reviewing them here:

      Stanford University Copyright and Fair Use

      Fair use (under which parody falls under) is measured by determining four factors:

      1. The Transformative Factor: The Purpose and Character of Your Use

      2. The Nature of the Copyrighted Work

      3. The Amount and Substantiality of the Portion Taken

      4, The Effect of the Use Upon the Potential Market

      I’d say that parody is a tough case to make in this instance because there is no transformation of the original work until the very end. The questions once has to ask are, “Has the material you have taken from the original work been transformed by adding new expression or meaning?” and “Was value added to the original by creating new information, new aesthetics, new insights, and understandings?” I’d argue no in both instances. And that’s only the first factor. The other three factors also have to be taken into consideration.

  • Katie Wash

    I don’t think these words have ever left my mouth before, but, Amid, I agree with you 100%. You’d have trouble copyrighting a general look. They were fine until they got to the logo. No contest.

  • David Breneman

    If I as a viewer were to take exception to anything here, it’s the incredibly disrespectful way in which these presidents are treated. Now, if the presidents were Nixon and Carter, THAT would be funny.

  • I understand why you’re concerned about Jib Jab’s artistic property, but… shouldn’t you be ALSO concerned about the shameless use of historic figures for commercial purposes?

    I mean, this is something I’ve never understood about American culture; everything is for grabs if you can make a buck out of it.