Where’s the Beef? Court Finds Burger Ad Not Copyrightable

(August 14, 2016) Culver may have had a cow over Steak n Shake’s copycat television commercial, but a federal judge found the original commercial lacked “the necessary modicum of creativity to give rise to copyright protection” required for a copyright infringement lawsuit.

Culver Franchising System, Inc. developed a commercial with a white-aproned butcher touting the quality of its burgers. Seven months later, Steak n Shake, Inc. aired an ad for its burgers that also used a white-aproned butcher talking about the quality of the meat in its burgers. Culver filed a copyright action against Steak n Shake.

Steak n Shake moved to dismiss the case, arguing that the commercials were not substantially similar. Culver responding, arguing “that the ‘expression, images, dialogue, and sequencing of the two advertisements are substantially similar,’ as they both feature a quintessential local butcher’s shop with an older butcher displaying three different cuts of ‘well-marbled’ beef that ‘come together’ as the camera pans to the grill showing the patties being seared to ‘seal’ in the flavor or juices.” Culver pointed to seven elements that it said were substantially similar in the two commercials.

The trial court disagreed with Culver, finding “[s]everal of the seven common elements identified by Culver lack the necessary modicum of creativity to give rise to copyright protection.” For example:

• Both advertisements used their respective logos at the beginning and end of the commercials. The court wrote that “there is nothing unique about a company displaying its logo and product and the beginning and/or end of a commercial.”
• Each commercial shows three cuts of beef, describes them as “well-marbled,” and then shows the patties grilled and flattened. The court noted that “pressing down on patties with a spatula and flipping them while they cook is standard grilling practice . . . and it is common parlance to described beef as ‘marbled,’ to speak of ‘searing’ and ‘sealing’ juices.”
• Both commercials take place in butcher shops and portray butchers wearing white aprons who show three cuts of beef. The court said it is “hardly original” to feature butchers. “Because there is nothing distinctive about the expression of Culver’s butcher, and because Culver cannot copyright the mere concept of a butcher talking about beef, Culver’s butcher is not protected expression” for copyright purposes.

Culver also argued that the commercials are substantially similar under the “ordinary reasonable person” test. By way of example, Culver cited to a customer comment card that said, “Did you notice that those losers at Steak n Shake almost duplicated one of your commercials? They blatantly used a similar looking man who also talks about the steak cuts going into the burgers. It copies your commercial almost blow by blow!” In response, the trial court said “So, just because a customer sincerely believes that Steak n Shake ‘blatantly’ copied Culver’s commercial does not mean that the commercials are substantially similar—especially where, as here, the commercials’ common elements are not protected by the Copyright Act as a matter of law.”

Culver Franchising System, Inc. v. Steak n Shake, Inc., N.D. Ill. No. 16 C 72, issued August 5, 2016.

Balough Law Offices, LLC, is a Chicago-based law firm that focuses on cyberspace, intellectual property, and business law. Cheryl Dancey Balough is an adjunct professor of copyright law at IIT Chicago-Kent College of Law. Our homepage is balough.com.