Cerveza Cristal: A Copyright Loophole in a Beer Ad from 2003?

The internet stumbled onto a ready-made meme last month in the form of 20-year-old beer commercials from South America¹. Back in 2003, a Chilean advertising agency decided to elevate the art of product placement. Their canvas: a planned broadcast of the original trilogy of Star Wars during a primetime slot on the second most popular national channel. DVDs were in their commercial infancy in the country, VHS tapes were available, but not everywhere. There was a guaranteed, captive audience.

The commercials in question were for Cerveza Cristal, a popular, inexpensive light beer. On their own, they were short clips of a few seconds, usually showing the hand and forearm of an offscreen character picking up a Cristal from a cooler, followed by the Cristal logo superimposed on the screen, with an over-the-top rock jingle². But in context, they created something entirely different. The hands and arms in question corresponded to characters in the movie. A white, flowing sleeve for Obi-wan Kenobi. A ghostly pale one against a dark backdrop for the Emperor. Played at the correct time in relation to the movie, the clips flowed seamlessly from original scenes that now took on a hilarious focus on beer. Obi-wan giving Luke Skywalker his father’s lightsaber, a pivotal moment in the movie, becomes him giving a long-winded speech only to walk offscreen and grab a cold one. The over-the-top tone of the movies only makes the contrast with the ad funnier. There is not data available about the consumer impact of the ads, but they won an award at the Cannes Lions International Festival of Creativity.³ George Lucas, the creator of Star Wars and then owner of its copyright (who recently topped the Forbes list of richest celebrity billionaires⁴) was not pleased and filed a complaint with the Chilean Board of Advertising Ethics. Ultimately, that board prohibited the continued broadcast of the ads.

The clips captivated the internet with their funny juxtaposition, they also strike a chord with American viewers for their sheer audacity. American consumers are not generally used to such bold product placement, and the meme’s popularity might be owed in part to the subconscious assumption that such a thing is not even legally possible. It’s true that no examples of American commercials quite like this exist in recent memory. But what if such a commercial was made and shown today in the U.S., alongside an otherwise legal distribution of a movie, wherein the context provided most of the humor and impact of the ad, and the ad appeared to a be a comedic extension of part of the movie?

Broadcast television is no longer as popular as it was in 2003. But it’s not hard to imagine un-skippable ads on Hulu or YouTube timed seamlessly so that they appear to be part of the movie. Surely there are ethical concerns, but would there be legal ones? Supposing that no contractual or regulatory impediments (such as FCC regulations⁵) existed, we can consider whether the intellectual property rights of the film creators would in any way be violated. 

For our purposes, let’s imagine you’re watching Dune, pt. 1 on a streaming platform of your choice. With admirable patience, you have not paid for the commercial-free tier subscription. You watch as Timothee Chalamet is told to place his hand in a box containing pure, condensed pain, a rite of passage he has been trained for since childhood by mysterious order of space nuns. He pauses, knowing this challenge may irreparably break him. Tension builds. An ominous synth soundtrack gets louder and louder. In the next frame, his hand slides into the box, and a moment later, reemerges. In his hand: an iPhone. On the screen: DraftKings online sports betting.  The movie then cuts immediately back to the real scene of the hand, or even worse, goes on to show more commercials.

Would this commercial infringe the Dune copyright? Copyright owners can prevent unauthorized copying and distribution of their works.  Assuming that it is similar in most respects to the Cristal commercials (only the character’s arm, sleeve and hand are shown) then the amount taken from the original could arguably be considered de minimis, that is, such a minimal taking of the copyrightable material in the film that no legal consequences should result.⁶  Courts analyze copyright infringement claims for a minimal amount of taking from the original work. In the context of audiovisual works, the length of time the copyrighted elements are shown, their prominence in the infringing work, lighting, and framing are considered, among other factors.⁷ These are looked at from the point of view of a lay observer.⁸ Courts have rejected brief and difficult-to-discern appearances of copyrightable material, but have generally refused to apply the exemption where the lay observer would at least recognize the original work⁹. Therefore, in context, since it would be obvious to the average viewer that the commercial is referencing the immediately preceding scene. However this reference alone would not be a use or copying of the original per se. It could be argued that showing merely a hand in a box, without footage from the original, would merely be using common, generic elements commonly found in film, known as scenes a faire. ¹⁰

The next potential defense would be fair use. Fair use refers to uses of copyrightable material which do not incur legal liability for infringement. Courts generally analyze factors which include the “purpose and character” of the offending use, the nature of the copyrighted work, the amount of the portion used, and whether the offending use has a commercial effect on the market for the original¹¹. One very important analysis within the first factor is whether the offending use is transformative, that is, whether it gives the original work “a further purpose or different character, altering [it] with new expression, meaning, or message.”¹² Using elements of a work (here, the distinctive lighting, clothing of characters and setting) for a commercial may be found to be transformative, as its use and “purpose” is quite dissimilar from the original (a narrative film)¹³.  The first factor also strongly considers commercial use to weigh against fair use, and here, the use is overwhelmingly commercial in nature.¹⁴ Similarly, the nature of the original work, a science fiction film, would weigh against a fair use finding, as it would be considered artistic in nature (as opposed to say, photos of a family gathering meant primarily to document the occasion¹⁵). The substantiality (or here, lack of substantiality) of the portion used could weigh in favor of the advertiser, since, as discussed above, no actual footage from the film would be used, and the commercial would only allude to characters in the film. Lastly, it is difficult to determine whether embedding commercials into a film would affect the market it would originally have. Such a question seems speculative and difficult for courts to grapple with.

While a fair use argument would likely be substantially weakened by the purely commercial nature of the advertisements, it is up in the air whether a de minimis defense could stand. If only just enough generic elements to allude to the previous scene are used, could an advertiser get away with making ads which interrupt the flow of the movie, and momentarily trick viewers into thinking they are still watching the original? Gilliam v. American Broadcasting Companies dealt with a contract between the creators of the Monty Python sketch comedy series and ABC to broadcast the show on American television.¹⁶ Without first consulting the creators as had been contractually outlined, ABC made substantial edits to the show, cutting out several portions which it deemed inappropriate for American audiences. The result was a complete alteration of the original product, with several sketches completely lacking punchlines or establishing beats. The comedy troupe claimed an unauthorized “mutilation” of their work. The court enjoined ABC from further broadcasting this version of the show, reasoning that a common law cause of action had long been recognized for artists seeking redress for “mutilation or misrepresentation of their work to the public on which [they] are financially dependent”¹⁷ despite the absence of moral rights, as they are commonly known, from the copyright statute. Courts since then have been reluctant to apply Gilliam to cases beyond its immediate facts.¹⁸

All these possibilities are relatively uncharted waters. What is certain is that we likely don’t see ads like these because there are several safeguards against them before they would even reach the realm of intellectual property claims. As in Gilliam, there are contractual obligations and veto rights reserved for filmmakers licensing their movies for broadcast. It is likely that a breach of contract claim would occur long before any infringement or “mutilation” claim. As for the potentially annoyed viewers, the FCC allows for complaints to be filed regarding content of broadcasts and advertising. Lastly, and this is mere speculation, it is likely that a copyright, contract, or even trademark claim against such an ad would be upheld due to the sheer absurdity of allowing the advertiser to blatantly ride the coattails of the original movie. Industry standards against this sort of use are strong and are likely to remain so going forward. For better or worse, it is unlikely that serious advertisers will take inspiration from this meme in the near future. Luckily, there is always the internet to run jokes into the ground.¹⁹

Sebastian Saavedra is a second-year student at the Benjamin N. Cardozo School of Law. Sebastian is interested in intellectual property, music law, and artificial intelligence law.