"Priceless' ad dispute - VW Bus

« **on:** December 22, 2001, 09:11:09 PM »

"Priceless' ad dispute - VW Bus
2 baseball fans sue MasterCard, saying commercials stole from their road-trip documentary
George Raine, Chronicle Staff Writer
Saturday, December 22, 2001
San Francisco Chronicle

URL: http://www.sfgate.com/cgi-bin....849.DTL

Toward the end of the 1998 baseball season, David Hoch and Joseph Marble of Minneapolis bought a 1977 Volkswagen van and embarked on a 10-day swing through five cities with sparkling new ballparks. They made a documentary of the journey in the orange-and-red clunker as part of the campaign they're waging to get a new baseball stadium for the Minnesota Twins.

It was deja vu this summer for Hoch and Marble when they saw a series of television commercials for MasterCard: two guys in an orange-and-red Volkswagen van cruise the country seeing baseball games, collecting souvenirs and memories. The tag line for the ads: "Priceless."

The use of a VW van isn't the only coincidence between the documentary and the ad campaign, Hoch and Marble contend. In a lawsuit alleging copyright infringement against MasterCard International and its ad agency, McCann- Erickson USA, exhibits A through S show what the plaintiffs claim are remarkable similarities. These include shots of directional road signs, similar camera angles, shots of players warming up on the field, a look at Camden Yards in Baltimore, one of two fellows waiting to enter parks and more.

"Coincidences?" asked Marble, a real estate broker. "We don't know how many coincidences can be piled up and still be considered coincidences."

In the complaint filed last month in U.S. District Court in Minnesota, Hoch and Marble allege that MasterCard and McCann-Erickson lifted not the idea of a road trip for baseball fans but the expression of the idea, and they claim that they've suffered irreparable harm. They ask for unspecified damages.

At McCann-Erickson headquarters in New York, spokeswoman Susan Irwin said, "MasterCard's sponsorship of Major League Baseball led logically to the concept of focusing on the 'Priceless' experience of a road trip to major league stadiums, an idea arrived at independently. We believe the suit is without basis or merit."

MasterCard also considers the suit without merit, said spokesman Chris Monteiro at the Purchase, N.Y., headquarters. He added that there have been more than 75 commercials in the "Priceless" campaign since it began in 1997. They have been very successful "and will last into the foreseeable future," said Monteiro.

Hoch and Marble did not obtain a copyright on the "Twins -- Now and Forever" documentary until July 17, and so there will be a battle in court over whether they are entitled to statutory damages, said Ronald Schutz, the plaintiffs' lawyer, with the Minneapolis law firm of Robins, Kaplan, Miller & Ciresi.

The two fans, both 41, are elementary school and high school classmates and devoted baseball fans. They took it upon themselves in 1997 to begin a campaign for a baseball-only ballpark for the Twins, a team that plays indoors at the Hubert H. Humphrey Metrodome in Minneapolis.

They formed Citizens United for Baseball in Minnesota (www.extra-innings.org) and, as part of the somewhat Sisyphean effort, the following year they traveled to Milwaukee, Chicago, Cleveland, Baltimore and Denver. Along the way,

with a rented movie camera, they shot eight hours of film that included interviews with people involved with the new ballparks, and a lot of scenes of Hoch and Marble.

Hoch and Marble say they would have loved to have made it to Pacific Bell Park in San Francisco, but it was not completed at the time.

Some 300 copies were made of the Hoch-Marble 30-minute creation, "Twins -- Now and Forever," and were handed out to politicians, reporters and anyone else with an interest. The documentarians guess they spent $10,000 on the van, hotels, food and film processing.

"We put our hearts and souls and time and money into this project, and we did it for the love of the game," said Hoch, a mortgage broker, who said that in 1984 he had a 93-mph fastball and pitched for a semipro team in Chicago until his arm failed him. "I looked like Nolan Ryan one day and couldn't raise my arm the next," he said.

"Joe and I are not fringe lunatics who get painted up for the game," Hoch said. "We were both raised in big Catholic families and our parents instilled in us traditions. You have to keep alive traditions, and that's the driving force behind all of this," he said.

"Of course, the case won't be easy," Hoch said. "We're taking on some very big corporations."

Since hearing about the Hoch-Marble case, a number of people have told Irwin, McCann-Erickson's spokeswoman, that once upon a time they took a road trip seeing baseball games in the summer -- that it's a rite of passage. Hoch and Marble took their trip "just as many have done before them," she said.

More importantly, she said, there are key differences between the documentary and the ads: The actors in the ads are younger than Hoch and Marble, and the documentary's purpose is to try to ensure the Twins' franchise stays in Minneapolis given a new ballpark. In contrast, the ads -- by way of promoting MasterCard -- show two guys just out for a good time.

"They used a red bus, but so does Kevin Kosner in 'Field of Dreams,' " said Irwin.

The "Priceless" campaign began in 1997 with a baseball-themed ad in which a man and his 11-year-old grandson attend a game that costs a few dollars for tickets and hot dogs, but the time spent together is "priceless."

"The concept of the campaign is to take a moment that people can relate to, " said Irwin. "A lot of people have taken a road trip or would love to take a road trip" to see baseball games around the country, she said.

In a joint answer for the defendants, filed in federal court, Calvin Litsey,

an attorney with the Minneapolis firm of Faegre & Benson, said the advertisements are not similar, let alone substantially similar (as the copyright law requires) to plaintiffs' work "and do not copy from it or take any protected or copyrightable expression from it."

The five commercials in the "Priceless" road trip ad campaign ran from April through the end of the World Series, much to the dismay of Hoch and Marble, they said. "My wife was furious when she saw it," said Hoch. "She's the gentlest person on earth, but I had to settle her down."

Schutz, the plaintiffs' lawyer, who heads his firm's intellectual property department, said "When you start to look at the similarities, how you characterize the road trip, that's where copyright infringement comes in."

Hoch and Marble began their campaign with a sleep-over protest on the steps of the state Capitol one chilly night in November 1997, after a failed vote on a Twins ballpark funding proposal. The problem facing the Minnesota Twins franchise, however, has grown much worse than lacking a new ballpark. The franchise may be eliminated altogether under proposed Major League Baseball contraction plans. Team owner Carl R. Pohlad says he will listen to offers to buy the franchise, and the Twins are under no obligation to play at the Metrodome past 2002.

"We would like to sneak into Camden Yards and airlift it out of there," said Hoch. "But I have to admit, a baseball stadium is not on the fast track here."

E-mail George Raine at graine@sfchronicle.com.

« **Reply #1 on:** December 28, 2001, 02:56:42 PM »

"imitation is the most sincere form of flattery"
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"outright theft seems almost more flattering..."
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