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Economy

Giant French Puppets vs. Coca-Cola In "Parasitic" Copyright Case

The beverage company's Christmas 2012 advertisement features a gigantic Santa Claus that was inspired by famous French giant characters. The theater company says it's fighting for its soul.

A giant Santa in Coca-Cola's "Open Happiness" TV ad; and one of the Royal de Luxe giant puppets.
A giant Santa in Coca-Cola's "Open Happiness" TV ad; and one of the Royal de Luxe giant puppets.
Sandrine Blanchard

NANTES — This is the story of a creator of giants suing the ultimate beverage giant.

The French street theater company Royal De Luxe, renowned for its gigantic puppets, has filed a lawsuit against the Coca-Cola Company under a little-known legal violation called "parasitism," after a 2012 television commercial for Coke featured a giant Santa Claus puppet.

The case is set to be heard Sept. 4 in the court of Nanterre, near Paris.

The theater company, which is based in the western city of Nantes, accuses the American firm of using for commercial purposes, without its consent, the same kind of characters and same stage design featured in its iconic giant street spectacles.

To understand this multi-episodes legal case, we need to dive into the “magic of Christmas” so dear to marketing specialists. In 2012, during the holiday season, Coca-Cola launched an international advertising campaign called “Open Happiness Christmas 2012.” In this video commercial — broadcast on television and in movie theaters in more than 60 countries, as well as on the Internet where it’s still viewable — a huge gift is delivered by a Coca-Cola truck in the center of a city.

From the box emerges a giant Santa Claus walking around the streets, like a puppet whose threads are pulled by tiny people.

Image usurped

There is no denying that it looks very much like Royal de Luxe’s giant puppets. The Santa Claus, which has the same look and same moves as the company’s creations, seems taken straight from the workshop of the Nantes troupe. And it was produced without its agreement.

Considering itself victim of a “image theft,” Royal de Luxe first filed a complaint for plagiarism, but its theatrical creation is not protected by traditional copyright law. The association's lawyer Frédéric Boucly decided then to take the case before a commercial court on the grounds of “parasitism” and “violation of business ethics.”

The notion of parasitism was introduced in French law during the 1950s by courts to complement the regulations about unfair competition. Acting in a parasitic way, for either a person or a company, consists of copying or drawing one’s inspiration from an economic value, or know-how, of an intellectual work and investments, in order to gain a benefit. In short, the parasite in business is a bit like a leech, but it is ideas rather than blood that gets sucked out.

Parasitism was brought up in 2004 in a case opposing French director Luc Besson and Gaumont film studio against the SFR cell phone operator and Publicis Conseil, an advertising and public relations firm. SFR used Leelo, the main character of the feature film The Fifth Element for a commercial campaign. The director and studio won the case.

David vs. Goliath

Jacques Leroy, president of Royal de Luxe, sees the case against Coca-Cola as a matter of principle. “This looks like a fight of David against Goliath, but we do not want to let this story go," he said. "It is a moral question."

In January 2013, authorities seized from within Coca-Cola’s computers email exchanges that the theatre company says prove their case.

These emails, to which Le Monde had access, clearly show that Coca-Cola and its advertising agencies (especially McCann Erickson) wanted to create a Santa Claus in the style of Royal de Luxe. They wrote to the theater company saying they wanted to create a commercial starring a giant character, and would be "delighted" to cite Royal de Luxe "as the inspiration."

Royal de Luxe summarily rejected the offer, in writing. “We systematically decline any offer of this type, we don’t want to be in the service of a brand," explained Leroy. "To not lose our soul, we only accept sponsorship.”

Coca-Cola then chose to ignore the refusal, going ahead with its project, apparently with full knowledge of the legal risks.

In an email from March 9, 2012, a legal assistant to Coca-Cola Europe warns her marketing colleagues that even though Royal de Luxe does not own exclusive rights on the puppet mechanism, they’ve created the concept and have made important investments in it, and that there would solid grounds for a claim of parasitism.

Beyond considering Coca-Cola a “notoriety thief,” the theater's attorney Boucly thinks their behavior in the case runs “against business ethics” and exhibit "a sense of impunity in flagrant contradiction to their own ethical charter.” That's a reference to the Coca-Cola Company's “Code of Business Conduct,” released in 2009, telling its employees to “act with integrity” to “avoid legal issues.”

No borders online

The beverage giant has appealed the seizure of documents from its computers, while a mediation between the parties failed.

“It is a complicated legal case and philosophically interesting," admits Isabelle Leroux, Coca-Cola Service France’s lawyer. "But the commercial video was not broadcast in France.”

Of course, the Internet and YouTube do not have borders, and Royal de Luxe, since its creation in 1979 by stage director Jean-Luc Courcoult, travels the world with its iconic giants.

The Nantes Company refuses, for the time being, to reveal the amount of damages it is seeking from Coca-Cola. Says Jacques Leroy: “If we win, the money will go towards the funding of a new show or to the creation of a foundation to help young troupes.”

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