Starbucks’s Frappuccino ad cleared of artist’s copyright infringement claim

A New York court has cleared Starbucks of copyright infringement after it ruled that the advertising campaign for its Frappuccino did not infringe artist Maya Hayuk’s work.

In a ruling handed down on Tuesday, January 12, the US District Court for the Southern District of New York granted Starbucks’s motion to dismiss the case.

Last year, Starbucks began an advertising campaign to promote its Mini Frappuccino product. It contracted ad agency 72andSunny to organise the campaign.

The campaign included print and promotional videos which showed a range of colours popping out of the straw of a Frappuccino.

Brooklyn-based mural artist Hayuk sued Starbucks and the agency for copyright infringement at the New York court, claiming that the design used in the campaign was “substantially similar” to five of her murals and unfairly appropriated the “total concept and feel” of her works.

Hayuk’s work is distinguished by her use of bright colours in geometric shapes. Before the Starbucks campaign, 72andSunny contacted Hayuk to tell her that it was fond of her work and would like to work with her. She declined the offer.

In assessing a copyright infringement claim, a court must separate the protectable and unprotectable elements and determine whether there is a substantial similarity between the original and infringing works on the parts that are protected.

But Hayuk argued that her works are “fine art” and are “incapable of being parsed into protectable and unprotectable elements”. The court should therefore apply the “ordinary observer” test, Hayuk argued.

But Judge Laura Swain rejected the request. She said Hayuk’s geometric shapes and bright colours are the “basic elements of artistic creation [and] are not protectable”.

Swain added: “None of the Frappuccino works are substantially similar to the ‘total concept and feel’ of protectable elements of any of the Hayuk works ... The far more dominant dissimilarities in the specific aesthetic choices embodied in the particular works distinguish them in total concept and feel and preclude a finding of substantial similarity”.