Bauducco case raises alarm about plagiarism in the advertising world

According to experts interviewed by the propmarkwhat happened last week points to the sector’s lack of knowledge about copyright

Last week, the advertising world witnessed the controversy surrounding the Bauducco campaign, signed by Galeria, which was accused of having plagiarized the song AmarElo, by Emicida due to the piece’s message and visual identity.

In the statement sent by the companies, both state that the campaign’s main objective was to “celebrate the yellow characteristic of the identity and present in the brand’s packaging and communication for more than 30 years”. Furthermore, they also clarified that the typography used by the brand has been the same for years.

Even so, the repercussion of the case was such that the companies chose to cancel the communication and broadcast of the song Magia Amarela, performed by Juliette and Duda Beat.

Reputation in check
What happened raised an alarm in the advertising market, since having a client accused of something like plagiarism could cost the reputation of both the brand and the agency responsible for the piece. Furthermore, according to Gustavo Cesrio, professor of Law Branding at ESPM, the case also points to the sector’s lack of knowledge about copyright, since, in this specific case, the similarity was noted by Emicida’s brother and producer, Evandro Fiti.

The plagiarism was observed by Emicida’s brother and producer. It was not an advertiser who saw the creation of another as a violation of his copyright. The person who noticed the plagiarism is a producer and musician, who knows about copyright, a topic so important not only for music and the world of arts, but also for advertising, but which is not taught in most communication faculties, highlighted Cesrio .

The market’s lack of attention was also pointed out by Ftima Pissarra, CEO of Mynd, who pointed out that agencies need to follow a series of bureaucratic processes when they decide to run a campaign that involves a song or an artist since there are several factors and a chain that must be respected, analyzed and understood before developing a project.

Each author or producer has a copyright institution that needs to be searched for. And copyright is a very personal condition, that is, it can only be released by the owner himself. So a singer, for example, cannot release a song if it is owned by third parties, explained the executive.

Ftima also pointed out that agencies need to pay attention to the references used in the construction of works and ideas since authorial material involves both references and inspirations.

There was already a lot of work in the developed market with the name ‘amarelo’ and, in addition, there is the issue of ‘amar elo’, which is one of the main parts of the song. When we see another project that makes reference to ‘amar elo’, we immediately relate it to Emicida’s music, warned the CEO of Mynd.

For Geisler Bosso, CEO of Vilage Marcas e Patentes, the case also calls into question the role of agencies in creating brands, logos and jingles, showing that it is increasingly essential for companies to carry out feasibility analyzes of their ideas.

It is essential that during the creative process, analyzes of the feasibility of using names, logos, images and possible plagiarism of works are observed, especially for the safety of customers who will use the creations in advertising their products and services. The risks of lawsuits for infringement of the Industrial Property Law and Copyright Law involve fines that can be very high, which, depending on the size of the company, could close, warned the CEO.

In line with Bosso’s position, Cesrio concluded that the result of cases such as Bauducco, which had a great impact in the media, not only includes the tarnishing of the name of a company, agency and professionals involved, but also the removal of customers and consumers. It is very important that the advertising medium values ​​the topic of copyright, bringing the discussion into associations, such as ABA and Abap, and universities, said Cesrio.

Market history
The act of plagiarizing is a crime provided for by law, in article 184 of the Penal Code, with penalties ranging from three months to four years in prison or the payment of fines, depending on the severity of the case.

According to legislation, it is considered plagiarism if the violation consists of total or partial reproduction, with the intention of direct or indirect profit, by any means or process, of an intellectual work, interpretation, performance or phonogram, without express authorization from the author, artist interpreter or performer, the producer, as applicable, or whoever represents them.

Although crime is relatively common in the music world, the scenario is different in advertising. According to the National Advertising Self-Regulation Council (Conar), registered copyright cases are low, to the point that, at the time of publication of this article, the agency registered only three complaints.

This year, the agency registered a complaint from Danone, which pointed out similarities between the Nesfit campaign, by DPA Brasil, and that of Activia, which was archived. In addition to this, Conar also received a complaint from Bayer, which appealed to the organization because it considered that its copyrights had been violated by Gino-Canesten by Boticário in the launch campaign for the “Cereja Livre” campaign. In this case, Conar decided to change and archive it.

Another complaint received by the agency this year was that of Lactalis do Brasil, which filed a complaint against videos broadcast on Heineken’s social media profiles. According to the company, the media violated and disparaged the “Parmalat Mammals” campaign, broadcast in the 90s. The complaint was upheld.

In 2022, the regulatory body had only 2.1% of the questioning processes initiated registered on the subject, totaling two cases. According to Conar, the cases involve a complaint from Seara Alimentos, which alleged that BRF’s TV and internet commercial sought to create “purposeful confusion with the piece created by it previously, in advertising the Levssimo Seara product, which was archived, and Reckitt Benckiser Brasil, which denounced a campaign by Raid, from the company Ceras Johnson. In the latter case, Conar ordered the change of the part.

In 2021, four copyright cases were registered, which represented 1.3% of the complaints received in that period, including a P&G complaint about a Unilever Brasil campaign that was archived; another involving iFood and Grupo Po de Acar and Leji Intermediação, which was accepted by the agency; one involving a complaint from Africa about a Laticnio Tirolez campaign in which the body decided to alter the reported piece and a complaint from Seb do Brasil about a packaging composition from MK Eletrodomsticos Mondial, which was archived.

Finally, in 2020 Conar received three copyright complaints that represented 1.9% of total requests for the year. The cases involved a complaint by Ford and JWT about a piece by Caoa Cherry, which was archived; another involving Uber, which denounced 99 Tecnologia for the use of the slogan “Elas na Direo”, which was also archived and the last being the case involving Unilever Brasil, which denounced Asa Indstria e Comercio for imitating the packaging. This last case was changed.

Other notable cases in the market were recalled by the ESPM professor, such as the Cerveja Nota 10 campaign, created by an advertiser from Paraná in 1996 and which, three years later, Kaiser ran a similar piece signed by Newcomm Bates, both of which were condemned by the STJ and required compensate the advertiser, according to the professor.

In 2015, Conar suspended the Ode Comida campaign, from Sadia and created by F/Nazca, after Vigor filed a complaint stating that the piece copied elements of the Faa sua Mgica campaign, from the Danish butter Lurpak, marketed by the company.