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September 17th, 2005
Doing a Remake?
Alka-Seltzer recently launched a remake of its famous "Try it, you'll like it" commercial from the 1970s. The new commercial takes the old favorite about a restaurant patron who was encouraged by the waiter to eat--"try it, you'll like it"--and updates it with "My Life on the D-List" star Kathy Griffin. We've had the "New Love Boat" and "Superman Returns," so why not bring back old favorites in the commercial world as well? As you would expect, if you're going to produce a remake, there are some important legal issues that have to be addressed up front, otherwise you'll be in for some serious acid indigestion, upset stomach, and heartburn. The plot, dialogue, and characters The original creative elements of a commercial are typically owned by the client. That means that the client should be free to use and adapt the old plot, dialogue, and characters. It's a good idea, though, to make sure that the client has checked the original agreements with the agency and production company. Keep in mind that with older commercials, the law and business practices may have been quite different at the time, and it is not always going to be easy to determine what rights the client actually has.
Music, props, and other licensed material
There are also likely to be elements of the original commercial which were licensed or commissioned from third parties, such as music, background artwork, and special costumes, as well as props and locations. If the old releases don't give you the rights to use this material in a new commercial - and for some types of licenses there's a good chance they won't--you'll probably have to negotiate for new usage. You should be particularly careful with re-recording music, since sound-alike claims (from the original singer, for example) are often an unexpected, but a very real, risk. Taglines Don't assume that a great tagline that the client used 20 years ago is still available for use today - particularly if the client hasn't used the line recently or doesn't have a current trademark registration. Even if a line was strongly associated with the client a long time ago, others may have rights to it today.
If you're planning to use footage of the original actors (even ones that are dead), you're probably going to have to go back and get permission, unless you are lucky enough to have agreements that are broad enough to cover the new usage (and are not subject to a union contract). If you're going to use the same characters, but with new actors (think Mr. Whipple played by Jason Alexander), you've got another important issue to consider. Even if the client owns the rights to the character, if the character is particularly associated with the original actor, or if you're planning on making the character in the new commercial look like the actor who played the character in the original spot, you may get a claim from the first actor, asserting that this violates his or her rights. To reduce the risk of this type of claim, at a minimum, you should make sure that actor playing the new character looks markedly different from the original. This may not do the trick, though, so you should take extra care to consult with counsel before recreating a character. It's true that there are many issues to consider when creating a remake, but the rewards can be great as well. You may even come up with something better than the original. Try it, you'll like it.
This article first appeared in the September 2006 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
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