If It Looks Like a Duck: Designer Says Aflac Stole His Work for New Ad Campaign
Was Aflac's new campaign -- "You Don't Know Quack" -- stolen from a freelance designer? It sure looks that way according to a lawsuit filed in a California federal court, but the devil is in the details. Here's one of Craig Frazier's designs, which he said Aflac's ad agency, The Zimmerman Agency, commissioned him to create:
And here's one of Aflac's actual new ads, according to Frazier's lawsuit:
What an amazing coincidence!
Or perhaps not, according to Frazier. He alleges that Zimmerman asked him to create some prototype images for the campaign that the agency could present to Aflac as they were pitching to win the insurer's account in September of last year. Frazier has included emails, a contract and details of the compensation for the work in his suit. Aflac liked the work and Zimmerman asked how much Frazier wanted for the rights to his work, Frazier says. They agreed upon $100,000 for unlimited usage over 10 one years, except for television. But then, Frazier alleges:
On October 21, 2009, Zimmerman sent an email to Plaintiff stating that "The client [Aflac] decided to go in a different direction from Craig's with the illustrations." There was no further explanation from Zimmerman.In January, Frazier saw his work cropping up all over the place as Aflac's new campaign.
Using creative material that an agency or client may not actually own happens a lot in advertising, mostly because agencies often have a poor grasp of who owns what when it comes to intellectual property. But this case contains the added wrinkle that Frazier's designs were clearly based on initial work that Zimmerman sent to him. So Frazier's claim is essentially that he advanced some designs that actually originated at the agency and now somehow owns them. Here's one of Zimmerman's initial mockups that was sent to Frazier:
Frazier's contribution seems to be that he added some shadows to the duck.* Is that worth $450,000, the amount Frazier claims he's owed in damages? Thats what Frazier thinks. Zimmerman, obviously, thinks this is ridiculous and outlined its objections in a pre-emptive complaint that is attached as an exhibit to Frazier's filing.
*Correction: The original version of this item incorrectly identified the disputed images and incorrectly described Frazier's apparent changes to them. Apologies for the error. Related: