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ARPAIA v. ANHEUSER-BUSCH COMPANIES

March 25, 1999

STEPHEN J. ARPAIA, PLAINTIFF,
v.
ANHEUSER-BUSCH COMPANIES, INC., D'ARCY MASIUS BENTON & BOWLES, INC., DDB NEEDHAM CHICAGO, INC., DEFENDANTS.



The opinion of the court was delivered by: Siragusa, District Judge.

  DECISION AND ORDER

This is an action for copyright infringement, in which the plaintiff alleges that the defendants infringed scripts he wrote for Budweiser Beer television advertisements involving a character called the "Bud Frog." Now before the Court is the defendants' motion [# 16] for summary judgment. For the reasons that follow, this motion is granted.

BACKGROUND

In 1990, the plaintiff wrote seven scripts intended as television advertisements for Budweiser Beer. Each of these advertisements contain a character referred to as "the Bud Frog." In one of these scripts, the Bud Frog makes a "BUD BUD" sound:

  We hear a FROG going "RRIBBET RRIBBETT . . ." The
  woman looks over to where the sound is coming from.
  Sitting there is a frog. . . . The girl bends over to
  kiss the frog. As soon as she is about to kiss the
  frog, another frog, THE BUD FROG, jumps into the
  scene. THE BUD FROG is wearing a tuxedo shirt and a
  black tuxedo coat. He is wearing neon green mirrored
  sunglasses. THE BUD FROG is making a "BUD BUD" sound.

In the other six scripts, the Bud Frog is silent. In six of the scripts, the Bud Frog is wearing neon green mirrored sunglasses. In addition to the aforementioned tuxedo shirt and coat, the Bud Frog appears in some of the scripts wearing a captain's hat, a pink bathing suit, a hot pink tank top with neon green boxer shorts, a pharaoh's costume and a yellow construction hard hat. The seven scripts are summarized, in relevant part, below:

  1) The Bud Frog makes the "BUD BUD" sound. A human
  female actress then kisses the Bud Frog, who turns
  into a can of Budweiser beer. The woman then exits
  with the can of beer, while the Bud Frog is "standing
  upright leaning on a tree with his legs crossed. He
  has a big smile on his face. He nods his head in
  approval."
  2) Two men who are stranded on a deserted island send
  a message in bottle, asking for help. In response to
  this message, the Bud Frog arrives on the deserted
  island on an inner tube filled with cans and bottles
  of Budweiser beer. "The BUD FROG is sitting at the
  head of the inner tube. He is wearing a captain's hat
  along with his neon green mirrored sunglasses."
  3) An astronaut is floating in space, attached to his
  spaceship by a safety cord, when a can of Budweiser
  beer floats by. Unable to reach the can of beer, the
  astronaut disconnects his safety cord

  and grabs the beer, then floats away from his
  spaceship. "The BUD FROG is seen laying on a towel on
  the moon. He is wearing a pink bathing suit and his
  neon green mirrored sunglasses."
  4) A man and a woman are sitting together outdoors on
  a blanket at night, watching the sky. The woman
  suggests that the man make a wish on a shooting star,
  which he does. In response to the man's wish, the
  woman then magically turns into a six-pack of
  Budweiser beer. "The BUD FROG is riding the shooting
  star like it is a horse. He is wearing a hot pink
  tank top with neon green boxer shorts. He looks down
  towards the beach, smiles and nods his head in
  approval."
  5) Two men who are lost are wandering through the
  desert, with only a single can of Budweiser beer. The
  two agree to share the beer, but one of the men
  wishes that they had "just one more" can of beer. The
  men then magically find themselves "sitting on
  thrones in the middle of a beautiful oasis," when a
  beautiful woman approaches the two and serves them
  each a can of Budweiser. "Sitting down leaning at the
  foot of the throne is the BUD FROG. He is dressed in
  a pharaoh's costume. He is wearing his neon green
  mirrored sunglasses. He has a big smile on his face."
  6) An architect's blueprint of a house comes to life.
  After the architect draws an attractive woman into
  the blueprint, she offers him a bottle of Budweiser
  beer. The architect then draws himself into the
  blueprint. "A gust of wind blows the blueprint out
  the window. CAMERA PANS LEFT. We see the BUD FROG
  standing behind a large fan. He is wearing a yellow
  construction hard hat. He is wearing his neon green
  mirrored sunglasses."
  7) A man who is attending a meeting becomes bored and
  begins paging through a magazine, when he sees a
  picture of three women sunning themselves beside a
  swimming pool. The women in the picture then beckon
  to the man, and offer him a can of Budweiser. The man
  is then magically transported into the scene in the
  photograph. "CAMERA CLOSES IN on the cover [of the
  magazine]. On the cover of the magazine is the BUD
  FROG. He has on his neon green mirrored sunglasses.
  He has a big smile on his face."

The plaintiff submitted these scripts, unsolicited, to Anheuser-Busch ("A-B") in or about June of 1990.

At that time, A-B had a policy with respect to such unsolicited submissions. The submissions were to be forwarded to A-B's legal department, which would then return the submissions to their senders, along with a non-confidentiality agreement, which the senders were directed to sign and then return to A-B along with their submissions. At the same time, A-B's legal department would identify the particular A-B Brand Manager to whom the sender was to resubmit his or her submission. In order to identify such a particular Brand Manager, the legal department staff member would have to review the submission to determine its subject matter. Once the sender completed the non-confidentiality agreement and sent it and the submission back to the particular Brand Manager at A-B, the Brand Manager would respond to the sender with a letter. It was A-B's policy that once the particular Brand Manager responded to the sender, he was to send the submission, the non-confidentiality agreement, and a copy of his letter to A-B's legal department. Once these materials were returned to A-B's legal department, it was A-B's policy that only the legal department staff were to have access to them. Under this policy, advertising agencies working for A-B would have no direct access to unsolicited submissions. However, these agencies did work on various advertising projects with A-B employees who had access to such submissions before they were sent on to A-B's legal department.

When the plaintiff sent his scripts to A-B in June of 1990, he addressed the package containing his scripts to Mr. Robert Lachky, who was then the Senior Brand Manager for Bud Light. The plaintiff was then sent a non-confidentiality agreement, which he executed and returned to A-B. The non-confidentiality agreement provided, in pertinent part, that the plaintiff released "Anheuser-Busch from any and all liability as may arise by reason of its use of all or any portion [of the plaintiff's submission] except such liability as may arise by reason of valid patents now or hereafter issued or valid trademark or copyright registrations which [the plaintiff] now or hereafter may own." By letter dated July 12, 1990, Lachky wrote to the plaintiff and informed him that A-B had chosen not to pursue his idea "for a Bud Light commercial."*fn1 Lachky testified at his deposition that he never reviewed the unsolicited submissions that were sent to his office. Further, he stated that he had no recollection of ever having seen the plaintiff's scripts prior to the commencement of this lawsuit.

In 1994, A-B was represented by the defendant advertising agency, D'arcy Masius Benton & Bowles, Inc. ("D'arcy"). During the summer of 1994, August Busch IV, A-B's Vice President of Brand Management, told members of the D'arcy firm that he wanted them to create a television commercial for A-B that was similar to a commercial that he had seen for Diet Pepsi, in which an elephant swims up to a woman floating on a raft, takes her Diet Pepsi, and leaves a few peanuts on the raft. In order to create an advertisement that would be satisfactory to A-B, Smith's creative team at D'arcy was instructed to "free think" and to create the one television advertising spot that the team had "always wanted to do." At that time, Michael Smith was an Art Director on the A-B account at D'arcy's St. Louis office. Smith presented the idea of using a frog croaking "Bud" to his partner, who expanded on Smith's idea by adding two other frogs who croaked "weis" and "er," respectively.*fn2 According to Smith, he first thought of the idea for using a frog croaking "Bud" in a Budweiser beer commercial, in 1969 or 1970. As a child in rural Illinois, Smith noticed that the frogs around his home often sounded as if they were saying "Bud." The "Bud" sound was so distinct in one particular frog that Smith named the frog "Bud." Smith claims that he never saw the plaintiff's scripts prior to developing his idea for the Bud Frog, and that no one at A-B ever discussed with him the concept of using a frog in a Budweiser commercial.

D'arcy presented this idea to A-B in the summer of 1994 and received a favorable response. A-B then had D'arcy produce the initial "Bud Frog" commercial. A-B then ended its business relationship with D'arcy in November of 1994, and hired other advertising agencies, including the defendant DDB Needham Chicago, Inc. ("DDB"), to create subsequent Bud Frog commercials. The first Budweiser Frogs commercial aired on national television in January of 1995.

The twenty-two Budweiser Frog television commercials that A-B actually aired are summarized as follows:

  a) The commercial opens with a large bull frog
  sitting on a rock in a swamp, croaking "Bud." The
  camera then shifts to two smaller frogs, one croaking
  "weis" and the other croaking "er." The frogs
  continue to make these sounds randomly, until
  eventually they each

  croak in sequence to for the word "Budweiser." The
  camera pans up, revealing a neon Budweiser sign above
  a bar.
  b) The three frogs from the first commercial are
  sitting by the side of a road. As a large Budweiser
  delivery truck approaches, one of the frogs croaks
  "Bud," licks his lips, shoots out his tongue, and
  attaches himself to the rear of the truck, which
  continues to speed down the road, dragging the frog
  through the air behind it.
  c) A bullfrog sits in the swamp, croaking the
  now-familiar "Bud" sound, when he hears a female
  voice croaking "weis" in the distance. The bullfrog
  then hops several times through the swamp toward the
  "weis" sound, until he discovers the frog who is
  croaking "weis" is an attractive female ...

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