Apple's ad sinks to such great lows

For those of you who haven't been following the underground drama surrounding Apple's latest commercial, here's what you need to know: first, the ad bears an absolutely uncanny resemblance to band The Postal Service's music video for "Such Great Heights." Second, the both videos were produced by the same duo, Josh Melnick and Xander Charity (aka "Josh & Xander"). But it looks like the final piece to the puzzle's in; Apple's commercial, which "sets free" the Intel chip for its new life in a Mac, was in fact a surreptitious replication of the  "Such Great Heights" video -- at least according to The Postal Service and their label, Sub Pop. Here's what band frontman Ben Gibbard had to say:

It has recently come to our attention that Apple Computers' new television commercial for the Intel chip features a shot-for-shot recreation of our video for 'Such Great Heights' made by the same filmmakers responsible for the original. We did not approve this commercialization and are extremely disappointed with both parties that this was executed without our consultation or consent.

Was it an illegal move on Josh & Xander's (or Apple's) part to produce this ad? Depends on who ultimately owns the copyright to the original (probably SubPop), but either way it's pretty poor form. Seems like if Apple wants to avoid further criticism and the possibility of litigation -- and snag a little indie cred while they're at it -- they'll pull their ad and make things right. Likelihood of that happening? Slim -- unless they get a call from SubPop's lawyers, anyway.

[Via TUAW]

[ken fager @ Jan 21st 2006 5:38PM]

The music video is on the iTunes Music Store for purchase. Check it out.

[Mike D. @ Jan 21st 2006 5:44PM]

If the postal service was so worried about indie cred and not selling out, why would they allow a cover of the song 'such great heights' (by another SubPop band, Iron & Wine) to appear in an M&Ms commercial all the time?

[MUTEMATT @ Jan 21st 2006 5:45PM]

Apple's ad is better than the music video. I would be pissed too.

[mkh @ Jan 21st 2006 5:46PM]

What's that you say? Apple is doing something sleazy and underhanded and totally corporate in order to maintain the illusion of indie cred?

This is my surprised face.

[mike @ Jan 21st 2006 5:46PM]

I always see this advert on this site :p

[James Hilger @ Jan 21st 2006 5:47PM]

Apple should have just licensed the video from sub-pop straight up. It's not like the Postal Service is above selling out. "Such Great Heights" is in a Kaiser Permanente commercial for crying out loud. That Apple went to the original directors and asked them to replicate their work makes it kosher for me. The directors came up with the video and Apple involved them from the beginning. The Postal Service, like most musical acts, probably had close to zero involvement with the video.

The directors, however, should have gave the Service a heads up. I think this is more poor form from them than from Apple. Honestly, though, it's tough for the Postal Service to say they totally got dissed for absolutely no reason:

Postal Service: "Hey we have a song about a relationship. We have a video about manufacturing microprocessors!"

Apple: "Hey, we have a computer with new microprocessors. We have a commercial about manufacturing microprocessors!"

Which makes more sense to you?

(As an aside, I like the Postal Service/Death Cab for Cutie just fine).

[Lance @ Jan 21st 2006 5:58PM]

Ha! See Apple is evil, I told you all! Besides, they've been lying through their teeth about the proformance of their new Intel based products.

Steve Jobs, at the MacWorld tradeshow, boasted: 'the new iMac [with] Intel processor is two to three times faster than the iMac G5.'

MacWorld magazine has reported http://www.macworld.com/2006/01/features/imaclabtest1/index.php that the real proformance increase was around 10-25%

All ripped from slashdot.org http://www.slashdot.org

[Rus @ Jan 21st 2006 5:59PM]

great free press the postal service is building up here ... but shame on the directors ... I hardly see how this is Apple's fault.

[JohnnyCashAK @ Jan 21st 2006 5:59PM]

Yeah I have to say I totally agree with everyone who has been dogging on this ad since the get go. I say this with the complete admission that they next laptop I buy will most likely be made by Apple.
Considering how lawsuit happy Stevie-J has been these last few years, I think it is only fair for the tables to be turned on them.
Even before I learned about this angle, I was pretty disappointed in Apple for dogging the very company that has put them in the position to double their market share over the next few years. I think it shows just how much of a class act Otellini is that he didn't walk back on stage after the ad played and crammed that bunny suit right up Steve's pompous ass.

Loyalty to business partners hasn't exactly been a strong suit of Apple's though anyhow. Look at how fast they bailed on Samsung.

[Andy @ Jan 21st 2006 5:59PM]

It's a freaking commercial, get over it!

[narco @ Jan 21st 2006 6:02PM]

I'm sure SubPop and the Postal Service aren't complaining one bit since attention is focused on them and the video itself is featured on iTunes. Sure, Apple could have seen the postal service video, contacted the directors and say they want something like that, but I think the directors are more at fault than anyone. But it's still bad on Apple's part. The postal service suck anyway.

Fishes,
narco.

[Foof @ Jan 21st 2006 6:07PM]

Wow. OK, for all you non-lawyers out there, this really doesn't have anything to do with which product fits which video better, or if/where the song was previously used. It's about ownership of rights and (intellectual) property.

If you bought a limited edition painting from an artist (say, #2 of 10), you couldn't really be upset if 9 other people bought the other copies of the same work. But if you commissioned the artist to create a logo for your company, then that logo belongs to you, not the artist, and another company cannot buy the same logo from him and use it as their own.

[ac @ Jan 21st 2006 6:07PM]

Yeah, so the ad is basically a copy. But there's no copyright to "look and feel" so there's no case. Just because it's similar to the music video doesnt mean that the band has any case against apple.

Look at the Lugz/eminem itunes ad situation from a couple months ago. Lugz obviously didnt sue, and the ad is still on the air. It's because they have no case unless apple took the actual footage from the original work and used it in their commercial.

Ideas cannot be copyrighted, and the idea of a video of a clean room where microprocessors are made isn't something that can be sued over. sucessfully anyways...

[warrenpeace� @ Jan 21st 2006 6:09PM]

Imitation is the sincerest form of flattery.

Now, enough already!

[lang @ Jan 21st 2006 6:10PM]

think different......i guess not.

first, the original silhouette ipod ad ads were ripped from a seattle radio station..apples excuse: it was the same director..not our problem.

second, the eminem ad that blatantly ripped off a Lugz commercial. apples excuse: no comment

now this, ripping off the Postal Service music video. apples excuse: it was the same director..not our problem.

For a company who relies on their image as being creative, apple really needs to start being creative.

[Sean @ Jan 21st 2006 6:10PM]

So you guys are accusing Apple of knowing they were ripping off a music video based on what evidence? Sure its the same, but why doesn't anyone start with the two guys who made the video? Isn't it far more reasonable to assume that those two guys just did a remake of a previous work of theirs with more money available from Apple, and in fact Apple was duped by them? Of course not, its far more logical to believe that Apple knows every single indie music video every created and was aware of the rip off.

[Eli @ Jan 21st 2006 6:15PM]

Who the hell cares? It's called a parody.

This is just some band I've never heard of trying to get free publicity.

[RobERT @ Jan 21st 2006 6:16PM]

Postal Service went to their lawyers and told them to sue Apple.
Postal Service�s lawyers said no.
They found out later that Apple also hired Postal Service�s lawyers, too.

[Echo_ @ Jan 21st 2006 6:20PM]

i wish we could have a witty name like M$

crapple?
or
aphypocriteple
hmm

[Aaron @ Jan 21st 2006 6:20PM]

You can watch the video of Such Great Heights for free at:

http://video.download.com/3800-11167_53-1100.html?tag=vdl_prefs_watch_tmp

Now I just need to watch the Apple commercial. Any links?

[Aaron @ Jan 21st 2006 6:22PM]

Arg...you will have to cut and paste the link above because the word "now" got included in the link. Someone at Engadget needs to fix that from happening.

[Kevin @ Jan 21st 2006 6:22PM]

If you go to the front page of the iTunes store, one of the "Featured" banners at the top exclusively plugged "The Postal Service - Video Just Added".

Could it be a coincidence that a song released 2 years ago would suddenly see their music video featured in one of the 3 banners of the iTunes store, at the same time there's a "controversy" involving Apple stealing somebody's music video?

Is it possible that the Apple/Josh & Xander are dumb enough to reuse the ad without consulting The Postal Service, or thinking The Postal Service won't find out about it?

Do you think The Postal Service is part of this "ooooh I'm soooo pissed off" publicity stunt? It's a beautiful headline that everyone loves to be furious about - "Corporate America stealing from Poor Creative Starving Artists"

Everyone of you suckers are so ducking fumb.

[Jerry @ Jan 21st 2006 6:26PM]

Who cares
This just gives Apple more attention, although a bit more negative than positive.
if Apple paid the label and the band beforehand it wouldn't have been an issue, it's probably what Jobs should have done. Maybe for some legal reason it's perfectly fine to do what Apple did, but doesn't necessarily make it 'cool'. I can see how the band would be pissed to see their video copied on an ad regardless of the company. But the accusations of 'commercialization' make my cynical eyes roll.

[Jerry Luo @ Jan 21st 2006 6:27PM]

a side by side comparison

http://video.google.com/videoplay?docid=5600934255578934893&q=postal+service

[Aaron @ Jan 21st 2006 6:29PM]

Apple Ad In Question:

http://www.apple.com/intel/ads/

[shortyzgotpop @ Jan 21st 2006 6:33PM]

Wow, Engadget actually posting something negative about Apple? Never thought I'd see this happen.

[Berkana @ Jan 21st 2006 6:33PM]

I bought the postal service video on iTunes. They changed it a bit: every instance of the "skyworks" logo has been edited or blurred out. Why is that?

[mike @ Jan 21st 2006 6:35PM]

"The directors, however, should have gave the Service a heads up. I think this is more poor form from them than from Apple."

"Imitation is the sincerest form of flattery"

The directors for the original, were hired by Apple. This isn't imitation. And the band should shut up, they have nothing to do with the direction of the video.

So why the noise? Well.. guys like CNET need something to talk about and rinkydink bands like.. eh.. PostalService?.. need to keep this amazing publicity going...

And Apple? They're hands are clean. And the iMacs are fast.

[Foof @ Jan 21st 2006 6:36PM]

Legally, it doesn't qualify as a parody.

You cannot copyright ideas, but you can copyright the expression of those ideas. A shot for shot remake, if it is indeed the case, would be (ahem) a good case.

This isn't an issue of "look and feel," but rather a principle called "likelihood of confusion." While I'm not making a judgment over whether a jury would find that the commercial is either easily confused with the video or more likely, find that a reasonable person would think the band was somehow associated with or endorsed the product, but it would not be a frivolous suit in the eyes of a court if it was filed.

Check out Lyons v. Morris Costumes for an example. As an aside, even parodies can have legal consequences - Vanna White v. Samsung.

[Foof @ Jan 21st 2006 6:49PM]

Mike: You're making the assumption that the directors own the intellectual property of the work. If so, then yes, the band's just complaining and there's no legal problem.

However, it doesn't matter if the band had anything to do with the direction of the video. If they hired the directors and as a result of the contract own the rights to the video, they'd have a case. Heck, if you just moved here from Antarctica and were given the exclusive rights, then you'd have a case against Apple and the directors. Your involvement in making the film doesn't mean anything in that case.

[Al B @ Jan 21st 2006 6:56PM]

The Apple ad was featured on apple.com until just recently, the ad has since disappeared from Apples website. You can still see the ad in Steve Jobs' Macword Keynote Speech: http://www.apple.com/quicktime/qtv/mwsf06/ the ad is in the last quarter of the speech... It's unfortunate that the guys who made both the video and the ad used the same footage, it may not be illegal but it does lack originality...

[pablo @ Jan 21st 2006 6:59PM]

The stench of irony is overwhelming....ipod proponents crying Creative copied/stole design features for the Vision M and now saying Apple's ad that is unarguably a replica of another's work is the greatest form of flattery. WTF?

[Kid @ Jan 21st 2006 6:59PM]

This is probably the worst thing I had read about Apple and it is the biggest blow on my trust on Apple since I had ever known about them with their boisterous launch of the original iMac. This is not a new product. This is not a new service. This is just a new ad, a frame-for-frame rip-off of a music video by the Postal Service.

Every frame, from the moment the woman looks up to her colleague, to the moment the chip is in the picture, is exactly the same - same motion, same compositions, same colors, almost the same music - with the exception that the chip now writes Intel (with a more crisp image), and the actor is stripped out of her emotion, which hinted a love relationship in the original music video. It is easy to conclude that

With this stripped-down movie and without a word, it sounds like Apple is declaring that its cold white designs had triumphed emotion.

Apple is doing something that violated design ethics. If it's any other companies I won't care, I will just laugh. But Apple is a company that likes to emphasize on its own brilliant designs.

It is not that I like Postal Service or I hate Apple to make me stand on the side of the Postal Service. That the video directors actually had the guts to duplicate their work is another story, and shows that their creativity and design ethics are both near zero.

On the other side, shame on Apple which specifically asked these video directors to make a duplicate for its own new products. This is a giant blow to its corporate image, when it heralds its products for creative professionals. How can a company that sells video editing software have an ad that is a rip off of someone else's video? With such logic, is it true that a 'creative' giant can rip off less famous artists without being unethical about it? What is so creative about Apple when it rips off someone else's video (not to mention its slogan disses all other computer companies) in such a public manner?

Usually, it can be forgiven by saying that the designers of the products are not responsible for the marketing of them, since two departments are usually not very related in corporations. But Apple is different: Steve Jobs is the Chief DESIGN Officer of Apple. How he can release such video without noticing that it is a rip is a mystery to me.

The comments on this issue in those sites such as Engadget or TUAW are horrible to read. Despite the zombie-like group of zealots with their arrogant attitudes argued how Apple is still right, it is of no help: No matter how designed the products are, they don�t make their users creative designers, they just make a bunch of arrogant socialites who uses iPod has the symbol of their social status.

If Apple does not apologize publicly for Such Great Mistake, I, as a creative professional, will be every bit disgusted when using an Apple - with the horror of using a hypocritical machine that one day may rip any designers' work - not to mention that I am already annoyed as hell by the incinerator fans of the PowerMac G5s.

[Alex @ Jan 21st 2006 7:00PM]

I find it quite amusing that a few weeks ago Apple fanboys were going crying foul in regards to how the Creative Vision: M "copied" the ipod. Now that Apple has "copied" someone themselves it's no big deal. You can't have it both ways.

[chris @ Jan 21st 2006 7:01PM]

Devil's (i.e. Apple) advocate.

I think Postal and Subpop should keep yelling (but not sue), welcome the free publicity, and sell a lot of videos on Itunes.

If I was Apple and they did have the gall to sue, I would pull them from itunes quicker then you can say Death Cab for Cutie.

[san @ Jan 21st 2006 7:04PM]

I'm without an opinion about the ad, whether or not it should have been made, who owns the IP, etc. But the notion that Steve Jobs personally approved stealing the video is preposterous. Sure, it's possible I guess. But you have to understand what people like Jobs -- people of such great heights, as it were -- are like: He probably had never heard of the song "Such Great Heights", or The Postal Service, or the US postal service or even a 10 cent stamp for that matter.

[Charlotte Web @ Jan 21st 2006 7:04PM]

Actually, I'm more bothered by the fact that the commercial comes across as more of an apology for an earlier, much better ad... remember "Bunnies" from a few years back? Where Apple toasted the Intel guys in their bunny suits?

As far as Apple ripping off a music video... well, frankly, I could care less about that.

[cynyc @ Jan 21st 2006 7:04PM]

As a graphic designer who once had a logo "stolen" (copied, parodied, appropriated...whatever) by EMI Records Germany... I know this might hurt, but there is no case. Even if the band owns the copyright. And a shot-by-shot recreation does not constitute an illegal use of the original. It doesn't matter if it's a parody or an hommage or a rip-off. The idea cannot be protected. Period.

Now, if I were part of the band I'd make a big stink, too, publicity is everything. Good for them.

[trev @ Jan 21st 2006 7:10PM]

Um potential legal issues aside, its just a really lazy and un-original way of making an ad.

Surely if your trying to make a new product stand out and look sophisticated, you need a unique and clever ad to do it?

Rehashing a music video and taking a cheap shot at pcs with a half hearted attempt at wit doesnt really seem to do the job.

And for the record Im not bothered about the whole Mac vs PC debate.

[Motorola 3G Victim @ Jan 21st 2006 7:12PM]

If someone hired Rembrandt to paint a really nice painting and I was so impressed with it that I then hired Rembrandt to create me a painting in the same style, exactly whom is it that is getting ripped off???

Besides, tell everyone what SubPop got Johnny:

Well SubPop got front page rotation on the iTunes music store for their video, which folks could then download for $1.99 and SubPop got a nice chunk out of that. And of course folks were then free to go download a couple tracks as well and SubPop got a taste of that action too. Plus scads of other collateral attention to their label for having found the video artists first.

All that for something that was not "Shot for shot" a rip off. If SubPop has any angst on the deal its probably because their 8" wafers were dramatically smaller than Apple/Intel's 12" wafers. :-)

[Jody @ Jan 21st 2006 7:12PM]

I think that really, Apple is great. The directors are the same, but there is a small detail. The Postal Service dosen't really have the "Rights" to the video. They didn't produce, direct, or design it. Most likely the full team from the video helped Apple. I would consider the commercial a Parody of the music video. According to something I read about Weird Al along time ago, you have the right to parody any video or song without permission.

[Motorola 3G Victim @ Jan 21st 2006 7:17PM]

Oh by the way, has anyone else noticed there have been at least TWO versions of the Intel ad that Apple has put up on their web site?

5706223 Jan 12 01:26 intel20060110_h.640.mov
5032206 Jan 21 15:51 intel20060117_h.640.mov

I can't tell any difference between them from watching them. Maybe Apple took the subliminals out of the second one? ;-)

[Jamie @ Jan 21st 2006 7:17PM]

re: 21

wow... really similar.

[Leo Kelion @ Jan 21st 2006 7:23PM]

Something weird is going on here - the postal service video is now advertised on one of the top 3 panels of the US itunes site and is also available for sale on other sites.

Just wondering if this isn't a planned 'dispute' to get free advertising for both the pop group and apple?

Whatever the case I can't believe there's a real dispute raging between the 2 if apple are promoting the video so heavily

[Josh @ Jan 21st 2006 7:28PM]

Kudos to Ryan for the post's title.

[awilde @ Jan 21st 2006 7:28PM]

Do you think anyone at Apple realized they used a (soft)porn star in the ad? She's gone mainstream, but she's certainly (yes, I am sure and not blushing)a Skinemax babe.

http://imdb.com/name/nm0488561/

[Leo Kelion @ Jan 21st 2006 7:28PM]

1 other thing - itunes gave away a free track from Death Cab for Cutie's latest album 'Plans' last year and it also offers an exclusive song with the album unavailable on the cd.

NB the Postal Service and Death Cab for cutie share the same singer

[El Payo @ Jan 21st 2006 7:32PM]

Well I think you're all missing the point here. THE AD AGENCY IS TO BLAME.

Twice now, Apple's ad agency (TBWA Chiat/Day) has shown concepts to Apple that have been 'done before' - in advertising that means 'it's kind of like' something you've seen before and is usually enough to kill it before it even gets out of the door. In this case these ideas are 'exactly like' something that's been done before. If the ad agency presents work and sells it to Apple as an original idea without saying anything about where they might have gotten the 'inspiration' for the ad that's really unethical. But then, we are talking about advertising.

[chuuchdizzle @ Jan 21st 2006 7:32PM]

someones gotta shoot apple in the foot

[Tim Marman @ Jan 21st 2006 7:38PM]

That's not entirely true.

It's important to note that copyright and trademark are different things. Copyright protects expression, while trademark protects symbolic information.

"Likelihood of confusion" is trademark doctrine, not copyright. So while the video itself is undoubtedly a protected work under copyright, the confusion factors would only come into play if they were dealing with a registered mark (i.e., the band's word mark, logo, etc).

That doesn't seem to be the case here.

The test for copyright infringement is whether - and to what extent - elements were copied from the protected work, subject to fair use and other exceptions. So, if the band and/or label were the exclusive holders of the copyright, it's possible there was infringement - but that would not rest on a likelihood of confusion analysis.