Fast food chain Nando’s has again landed itself in hot water for its controversial approach to social media marketing, yesterday pulling an ad from its Twitter and Facebook accounts which used a copyrighted image.
Hoping to ride the publicity coattails of the spat between billionaire mogul James Packer and the head of the Nine Entertainment Group, David Gyngell, the chicken store posted an image of the punch-up with the tag line: “There was only one piece of Nando’s chicken left & we were both quite hungry at the time.”
However, the image used in the advertisement was copyrighted to News Corp, which reportedly paid more than $200,000 for exclusive rights to the photos.
While many of the images of the altercation carry News Corp watermarks, it appears Nando’s used un-watermarked images from the front pages of Tuesday morning’s News Corp pages to make the ad.
The company pulled the ads from its Twitter and Facebook accounts after receiving a complaint from photo agency Media Mode, replacing the image with a text-only advertisement that read: “Our flame-grilled chicken really ‘Packers’ a punch”.
A spokesperson for Nando’s told SmartCompany the company has not been contacted by News Corp about the image.
Finlaysons intellectual property, media and technology partner John MacPhail told SmartCompany Nando’s actions were a “clear cut” infringement of News Corp’s copyright, and the company would not be able to use any of the fair dealing exceptions in Australian copyright law for protection.
“Is it fair dealing for the purpose of news reporting? No,” said MacPhail. “The ad was very clearly for the purpose of selling chicken.”
“Is it fair dealing in terms of parody and satire? No,” said MacPhail, who said the advertisement did not add any value.
He said Nando’s is exposing itself to the risk of paying ordinary damages, as well as flagrancy damages, if the case were to go to the courts and there is any evidence of the advertisement being part of a planned strategy.
However, he said it is unlikely News Corp would pursue litigation given Nando’s swift action to remove the image.
MacPhail described the advertisement as “guerrilla advertising at its most clear cut” and has no doubt the fast food chain “carefully choreographed” posting and then removing the image. “Nandos has form in this area,” he said.
Chief executive of CP Communications and social media specialist Catriona Pollard told SmartCompany “it was a nice idea but the execution didn’t work”.
“The idea about creating timely social media campaigns is fantastic,” said Pollard. “But when the execution doesn’t work, that can actually damage your brand.”
While Pollard said the Nando’s image was “topical, timely and perfect for social sharing”, business owners and managers need to be careful when using any image on social media.
“You can’t steal images, it’s as simple as that,” said Pollard, who recommends purchasing stock images that can be used at short notice.
“Definitely use images in your social media campaigns but you have to apply strategic thinking to it, even if you only have 10 minutes,” she said.