-Martha Engel, Attorney

I laughed when I saw yesterday’s Adweek article about Heinz adopting Don Draper’s “Pass the Heinz” pitch from the hit show “Mad Men.”  Given the lackluster creativity observed from the Super Bowl ads, have we actually reached a point where a creative says “hey remember that Mad Men episode? let’s just do that!” and the client agrees?  I hope not, and I have to believe that that isn’t what happened here.

According to the Adweek article, the fictitious Sterling Cooper Draper Pryce is given credit for the work alongside DAVID The Agency – an international agency with offices in Miami, Brazil and Argentina.

Their logo reminds me of someone – how about you?


Setting aside the strong possibility that this agency (or at least members of it) created the work featured in the Mad Men episode, this real life fact pattern reads like an Intellectual Property law school exam.  What risks does Heinz have in adopting this work?  Who authored the creative work and who may own the copyright in the creative work?  Is DAVID’s use of the print ads an infringement of that copyright?  Could the creators and writers of Mad Men use the Heinz trademark in this matter without their permission?

The story here is “tantalizingly incomplete,” if I may borrow Draper’s words from the clip.  Assuming this was executed with some forethought, there are likely one or more agreements involved.   The creatives behind the ad campaign featured in Mad Men may have assigned the work to the owners of Mad Men as a “work made for hire.”  Someone from Heinz or DAVID The Agency may have obtained permission from the copyright owners of Mad Men to then use the work.  There might even be a product placement agreement with Heinz that would later allow Heinz to use the Sterling Cooper campaign later in real life, and maybe even give Heinz the right to select the agency that creates the Sterling Cooper campaign.

Taking this outside of the fictitious context, what about the fact that this agency essentially stole the pitch from Sterling Cooper?  Most agencies would rightfully have an issue with another agency using their pitch.  Does this have any negative effect on the industry?

From a brand perspective, what do you think about Heinz adopting this “50-year-old campaign” from Mad Men?   And, for the agency, is there any benefit to them for just tipping in Don Draper’s shot from the 3-point arc?  Of course I wasn’t going to make it through this whole post on the eve of the best sports weekend of the year without throwing in a March Madness reference – especially with my team in both the men’s and women’s brackets this year.  GO MARQUETTE!