Character infringement or creativity? Suit to decide Austin Powers-like TV ad sparks dispute


March 15, 1998|By June Arney | June Arney,SUN STAFF

For days, Baltimore's advertising community has buzzed over the lawsuit that alleges a local pharmacy and advertising agency used a look-alike Austin Powers character in a local television spot.

In advertising shops around Baltimore, at least some industry executives think the NeighborCare Pharmacies Inc. commercial may have pushed the boundaries of what's allowed. Others say it's creative, and doesn't cross the line.

Conspiracy theories abound about who lies behind the lawsuit. And many wonder what it means to an industry that already receives a fair share of criticism.

New Line Productions Inc., creators of the movie "Austin Powers: International Man of Mystery," is suing NeighborCare and Trahan, Burden & Charles Inc., the advertising company that created the spot.

"When these kinds of things happen, it undermines the professionalism of the industry," said Richards Badmington, vice president, public relations, at Cornerstone, a local advertising and public relations firm not involved in the lawsuit.

Advertisers are watching because the lawsuit will help draw the line between what material is protected and what isn't.

They need to know, because a 30-second television spot can cost $50,000 to $100,000 to produce -- a significant amount to lose if the commercial has to be pulled.

Unless the case is settled first, a federal court will decide whether the likeness is too close to Austin Powers, and if so, what damages to award to the makers of the movie that spoofs the '60s era and the spy genre.

The stakes are high: at risk is the use of the Austin Powers character. New Line, which earned box office revenues of more than $53 million from the movie and sells a variety of Austin Powers spinoff merchandise, may stand to lose the most.

The lawsuit is unusual, according to experts in the field.

"It's a local advertiser," said James B. Astrachan, a Baltimore intellectual property attorney familiar with such cases. "They normally don't get caught when they step over the line. Or if they do, there's just a cease and desist letter."

Such a letter, dated Dec. 17, 1997, did show up, and the commercial was halted after running only about a month and a half. Trahan and NeighborCare officials thought legal action had been averted.

But on Feb. 17, the lawsuit was filed.

"They have put at issue the protectability of the Austin Powers character and the stereotyped '60s images on which that character appears to be based," said Charles D. Ossola, a

Washington, D.C., attorney representing Trahan and NeighborCare. "We intend to demonstrate that the use of a host of '60s imagery in a character in the television commercial is not an infringement of the Austin Powers character. Borrowing of '60s imagery was done by New Line itself in creating the Austin Powers character."

Ossola said he will file a response to the lawsuit in federal court tomorrow .

Local advertisers are puzzled: would a big-time, California production company have noticed a local spot that ran briefly in Baltimore without being tipped off to it?

Could one of the pharmacy's competitors have tattled?

Or how about a disgruntled advertiser who lost the account to Trahan?

A key target of one conspiracy theory is Rebecca Reeves, president and CEO of The Reeves Agency, who created the NeighborCare account in 1989 and then lost it to Trahan in 1995. Her work now includes a job for the Baltimore law firm that represents New Line.

She laughs at the suggestion that she would have tipped anyone off to the commercial and says she's never even seen it all the way through. She denies having any role in the lawsuit.

"I would have assumed that as sophisticated as Trahan is, they would know what they're doing," she said. "I would have never dreamed they would have left themselves open to this kind of liability."

Some experts believe that New Line may be using the local lawsuit to set an example.

In the court papers, New Line alleges that the character in the local television commercial looked like Austin Powers from the blue crushed velvet suit and frilly white cravat, to the sports car detailed with wild, psychedelic flowers.

He even sounded like Austin Powers, in accent, pitch, tone and inflection, according to the lawsuit.

The character in the commercial comes into the pharmacy asking for a variety of items and is told that NeighborCare sells none of them, the lawsuit says. The implication is that consumers should shop there because the store sells only medicines.

Experts seem to agree that had Trahan asked for permission to use the Austin Powers character and received it, the price would have been prohibitive. One estimate put the cost at $200,000 or more.

"I really think that he believed what he was doing was permissible, and he did it," Astrachan said of Allan Charles, founder and creative director of Trahan who came up with the commercial. "I don't think he would have set out deliberately to steal somebody's work."

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