Judge Sees Nothing Original in Hamburger Ad

CHICAGO (CN) — A federal judge dismissed with leave to amend a copyright suit from a franchiser that claims that Steak n Shake copied a commercial touting its hamburgers' "wonderful steak taste."

Culver Franchising System claims Steak n Shake copied its copyrighted "Butcher-Quality Beef" TV commercial.

The one-minute commercial for Culver's "ButterBurger" was first broadcast in April 2015.

"The ButterBurger is made of just three cuts of fresh Midwest beef, nothing more, nothing less," co-founder Craig Culver says to a butcher in the commercial. Culver he lauds its "wonderful steak taste," which is seared in.

Steak n Shake broadcast its "Original Steakburger" ad seven months later. The 30-second ad opens in a butcher shop, with a butcher speaking directly to the camera about Steak n Shake's Steakburger and its three cuts of beef.

Like the Culver's ad, Steak n Shake calls its cuts "well-marbled," shows how the burger is put together, shows the final product, then says: "And it all comes together; a quick sear to seal in the flavor."

Culver claims the "expression, images, dialogue, and sequencing" in Steak n Shake's commercial are "substantially similar" to its own.

Steak n Shake sought dismissal for failure to state a claim.

U.S. District Judge Gary Feinerman granted the motion on Aug. 5.

"Burger commercials have regularly featured the grilling and/or assembling of a burger, followed by a view of the final product," since at least 1975, when McDonald's began advertising its Big Mac, Feinerman said.

He called Culver's sequence "commonplace, as it would be nonsensical for a commercial to open with a cooked burger and then finish with a prolonged shot of a raw patty."

The judge found it "hardly original for an advertisement to describe the origins and quality of a meat product or to feature a butcher. The butchers function as stock characters. ...

"Because Culver cannot copyright the mere concept of a butcher talking about beef, Culver's butcher is not protected expression."

Nor do the shots of cooking violate copyright law.

"Pressing down on patties with a spatula and flipping them while they cook is standard grilling practice; adding cheese to a burger is not a stroke of originality; and it is common parlance to describe beef as 'marbled,' to speak of 'searing' and 'sealing' juices, and to discuss how flavors and ingredients 'come together,'" Feinerman wrote.

He gave Culver until Aug. 26 to amend its complaint.

Culver is represented by Mike Gray, with Gray, Plant, Mooty, Mooty & Bennett in Minneapolis. Culver spokesman Paul Pitas said the franchise was "disappointed" with the ruling.

Steak n Shake's attorneys with Latham & Watkins in Chicago did not return emailed requests for comment Thursday.

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