If you like something that your competitor has created, should you ever tell your team to directly copy it? Based on the outcome of an infringement case involving two door-to-door storage companies, you could get into some real copyright trouble if your marketing materials contain substantial similarities – especially if your creative direction is recorded in email or text.
Blue Crates Envies Doorage
Blue Crates and Doorage were both storage companies specializing in hassle-free pickups and deliveries. If you hired either company, you would pack all your stuff into containers given to you by the company – then they would pick up your items, store them indefinitely, and deliver the containers to your new place. Both companies also offered these services in the Chicago area. Basically, they were strong competitors. (You will notice that I am speaking in the past tense, and we will get into that later.)
In early 2018, Doorage’s marketing team uploaded a line of new videos explaining their services in colorful, snappy animation. In the case text, Doorage notes that they paid $15,000 for the creation of the videos – an expense justified by the competitive edge of well-designed marketing materials.
Although none of the videos garnered more than 120 views, the CEO of Blue Crates Michael Walker took notice of them as creative inspiration for his own storage company’s marketing.
When Blue Crates released very similar animated videos about a year later, they drew the attention of Sean Sandona, Doorage CEO – which spurred a cease-and-desist letter in August 2019. When Blue Crates did not take down the videos, Doorage responded with a lawsuit in 2020, seeking damages from copyright infringement.
Maybe Don’t Tell Them That?
Walker worked with creative agency Brandsmark to create videos for Blue Crates. In his communication with Brandsmark, he encouraged them to copy Doorage’s videos. The court cited quotes from his messages in their decision:
- “…[t]he videos from Doorage are a great example of what we are looking to do. We would like to do the same …. [I]f you recreate this [Doorage video] with better imagery, we are on the right track.”
- “…recreate the linked video exactly as it is with our branding.”
- “…change the color scheme to Blue Crates and brand it and we should be good to go.”
Walker did try to temper his statements later by telling Brandsmark that the video could not be a replica. But the videos that ultimately emerged proved extremely similar to Doorage’s.
While it is legal to be inspired by the work of others, you tread on copyright infringement territory when your finished product resembles someone else’s to a substantial degree.
In this case, the court did not have to get into the subtleties of substantial similarity. Doorage was able to place their videos next to Blue Crates’ videos with a clean list of overlapping items:
- Shot-for-shot, almost identical “story” beats
- Animation style
- Music style – what is described as “bouncy” xylophone
- The verbiage explaining how to use the service
More convincing than even the video evidence – Walker’s e-communications made his intentions crystal clear to the court. While I would not encourage any client to infringe on another business’s copyrighted marketing materials, I especially do not encourage you to email or text about those activities. The messages will not be protected from the court’s eyes.
Value of Infringement Claims
I often remind my readers that intellectual property law is not like criminal law – there is not a moral imperative pressuring us to not pursue infringement the way that, say, the state may press charges to discourage assault for social safety, regardless of the specifics of a case. Intellectual property claims need to be filed for practical reasons, such that the cause and effect of the infringement show actual or potential, commercial harm to a brand.
This is why, for instance, larger media brands may allow fan fiction to persist. While technically the fan fiction is infringing on their intellectual property, it is often not causing the brand harm – and, in fact, may be doing the opposite by providing free publicity for their stories, characters, and worlds.
Was It Worth It?
For Doorage, although they were poised to prove infringement, they did not gain much from this lawsuit materially – in fact, the court kicked that can down the road, calling Doorage’s claim of $2 million in damages “unexplained.” The Northern District Court of Illinois has set another meeting for Doorage to prove damages. Even if that is successful, Blue Crates filed for bankruptcy in 2021, so the payment of damages remains uncertain.
Now, after almost five years in court, Doorage has paused all its operations in order to afford the continued litigation. Is this a win?
Applying This to Your Business
While you might feel offended when somebody copies your work, take the time to reflect beyond emotions: Is my brand being harmed? Are customers buying from my competitor, or has nothing really changed for my bottom line?
And follow up with this important question that both Doorage and Blue Crates may have asked too late: Can my company afford years of litigation?
While it is impossible to say for sure, perhaps Blue Crates and Doorage would both still be in business. But then there is the other issue to consider: if you do not take action to protect your brand in a timely manner, a court of law could find that you waived the right to claim infringement. Consulting with an intellectual property attorney in conducting a cost benefit analysis is always a wise move prior to filing a lawsuit in federal court.