The release of any Bond movie is a cultural event eagerly anticipated by millions of people around the world. And the expectation around No Time To Die has been bigger than ever for several reasons. First, the release was delayed for over a year by the Covid-19 pandemic. Second, this is Daniel Craig's last outing as Bond, following a run that has included two of the best ever Bond movies, Casino Royale and Skyfall, as well as a couple of others which won't live long in the memory. And finally, because following the publication of the initial reviews, its clear that this Bond movie is not only Craig's best, but one of the best in the entire franchise.
And the brouhaha around the release of a Bond movie would not be complete without a parody. In this case, the parody is also a high quality production, but does it cross the line into the realms of copyright infringement and passing off, or even infringement of the advertising codes? Before reading any further, you might like to click on the link and watch the Bavaria beer ad for yourself. Its in Dutch, but don't let that put you off. Be more like Bond: he is noted for his facility with languages.
Unusually, the ad starts with opening credits: "Zo. Time to say bye. Starring Krek Danniel". Can you see what they did there?
Then the action starts. We see a blond man, with more than a passing resemblance to Daniel Craig, getting out of a silver Aston Martin. He is wearing a dinner suit (please don't say tux, he's not an American) and holding a bottle of beer. As we see the Aston driving away, its clear that he wasn't driving, so no issue of encouraging drinking and driving arises. Our hero then walks up the steps of what could be an English country house and deposits his empty beer bottle into a potted plant. Not very environmentally friendly and a slightly odd thing to do when he's about to walk through the doors of his own home. Doesn't he have a recycling bin in the kitchen? Do pay attention Bond. There's no point saving the world if you're going to destroy the planet.
The impression that this fellow knows his final mission has been accomplished is enhanced by the sight of him undoing his bow tie and hopping across the living room while pulling off one shoe. Fair enough, we've all done it. And now, he's ready to put his feet up in front of the fire, both metaphorically and literally. He cracks a bottle of beer, and up pops the end frame with the line, "And now, time for a Bavaria".
So is this an affectionate but lawful homage to the legend of James Bond? Or does it cross the line, infringing copyright of No Time To Die and misappropriating the goodwill of the Bond franchise? Its clearly not a copy or an edit of the movie, so it doesn't infringe any of mechanical copyrights in the original. While there's a clear nod to Daniel Craig's retirement from the role, there is no dialogue, so it would be very difficult to argue that there is any infringement of either the storyline or screenplay. Its true that some instantly recognisable elements have been referenced, such as the Aston Martin and the 'black tie' outfit, as well as the more modern innovation of product placement by Heineken; but we all know that this is not the Bond movie, just a parody.
But there are a couple of elements that could present some difficulties. The first is the music, which is often the legal Achilles Heel in a parody. In this case the soundtrack is certainly reminiscent of recent Bond movie scores in a generalised kind of way. Is there is enough similarity to give rise to an infringement? We'll leave that to the judgement of the courts.
Finally, there is Mr Bond himself, or rather Daniel Craig. The lookalike in the commercial really is very good. Perhaps that's why they felt the need for the reference to Krek Danniel, emphasising that this is not Daniel Craig. If Mr Craig were an American with an inclination to bring an action for infringement of his personality rights through the US courts, then we would be rather worried for the advertiser. The Californian courts, in particular, are very happy to enforce the monopoly rights of their Hollywood residents to the commercial exploitation of their name and likeness. But then again, they probably serve red wine with fish in California, so what do you expect? English courts tend to be more reserved, insisting on an element of confusion before finding there has been any passing off, or false endorsement.
However, Mr Craig may succeed in preventing this commercial from being seen on broadcast television in the United Kingdom, not by relying on his licence to kill, but by relying on his prosaic right to privacy under Broadcast Code of Advertising Practice. This states that living persons must not be featured, caricatured or referred to in advertisements without their permission. Ironically, perhaps, this rule reflects the principle enshrined in the Audio Visual Media Services Directive: so we would have a piece of legacy European law coming to the aid of the actor playing the quintessential British hero in the post-Brexit Britain.
Unfortunately for Mr Craig, the ad is not on broadcast TV in the UK, but on YouTube, and therefore even if it is within the jurisdiction of the UK's Advertising Standards Authority (which is unlikely), it will be governed by the non-broadcast CAP Code, which is less restrictive in its privacy rules. These would only be breached if Bavaria had implied an approval of their beer by Daniel Craig personally - but it is clear that the ad is portraying a parody of the character of James Bond, not Daniel Craig himself.
Its enough to leave one shaken, not stirred.
And now, time for a Bavaria