An appellate court in Paris held French mobile-phone operator SFR and its advertising agency liable for "counterfeiting" filmmaker Luc Besson's "The Fifth Element" in an advertising campaign.
PARIS -- An appellate court in Paris held French mobile-phone operator SFR and its advertising agency liable for "counterfeiting" filmmaker Luc Besson's "The Fifth Element" in an advertising campaign.
The 2003 ad for the launch of SFR's Vodafone Live service featured a character played by actress Milla Jovovich in a futuristic environment. Jovovich also had the leading female role in Besson's film, as "Leelo." The spot aired 2,000 times at the end of 2003 and was supported by 18,000 billboards.
On March 30, a Paris tribunal ruled that SFR and the ad agency, Publicis, were guilty of parasitic behavior (which is akin to unfair business practices and unfair competition in the United States), but not of counterfeiting. Gaumont, the company that produced "The Fifth Element," and Besson appealed the judgment.
The appellate court held on Sept. 8 that SFR and Publicis "plagiarized" Besson's movie. It stated that there was "an immediate identification between the character in the ad and that of Leelo." As a result, SFR and Publicis were liable for breach of patrimonial rights (held by owners of intellectual property in France) and counterfeiting, as well as breach of Besson's moral rights (additional rights held by authors of intellectual property in Europe).
The court noted that the 25- to 34-year-old audience targeted by the ad could "immediately identify with the character of Leelo, due to all the similarities, and subsequently consider that its paternity could be attributed to Besson."
In its ruling, the court said that the use of Jovovich "reinforces the bias towards Besson's work," and determined that the acts constituted unlawful "parasitic acts."
SFR and Publicis were ordered to to pay 2.75 million euros ($3.37 million) in damages to Besson and Gaumont. Specifically, Gaumont was awarded 750,000 euros ($919,725) for breach of patrimonial rights and counterfeiting and 1 million euros ($1.22 million) for parasitic acts. Besson was awarded 1 million euros for breach of his moral rights.
SFR and Publicis have also been ordered to stop their ad campaign.
Besson's lawyer, Georges Kiejman, called the ruling "remarkable."