Why It’s Such A Big Deal That Chinese Automaker BYD Is Threatening To Sue Us

Automakers have long used celebrities to give them an aura of success, style, or authenticity. This is especially important for Chinese brands, which have started to move beyond cheap cars into the realm of luxury vehicles in Europe. The latest star to endorse a Chinese automotive brand is the actor Daniel Craig, best known as James Bond, who is now the spokesperson for BYD luxury subbrand Denza.

When the company made the announcement last month, it also sent out a mix of press and marketing photos to promote the campaign, stating that Craig “will lend his image to several key vehicles being launched this year, including in marketing materials and television commercials.”

This isn’t a campaign for the Chinese market, but one aimed at Europe, and the photos looked slightly amusing to us. There was a sense that Craig, a wonderful actor who has appeared in many films we love, looked sort of strange in the marketing materials.

Instead of posting about it on the website, we quickly put up an Instagram post that rather tamely pointed out the photos were odd. Clearly, many people agreed, because thousands of people liked and shared the post, with nearly a million seeing it before BYD threatened us with ‘legal action’ and put forth a bogus copyright claim via Instagram to have it removed.

If the image Chinese automakers want to portray is that they won’t export China’s history of authoritarian rule and press censorship alongside their cars, the behavior of BYD here is extremely disappointing.

The Original Instagram Post

Because it’s not currently on Instagram, above is what the slideshow post looked like. The photo was mostly factual, though it did include the commentary that the photos looked “weird as hell.” You can’t see the caption, but the caption was:

Daniel Craig’s “Bond” movies made billions across his 15-year tenure, but the former secret agent has turned towards modeling for China’s EV brand Denza and, well…the photos are something.

That’s it.

From various parts of the BYD empire there are four basic variations of the photos we used, all of which were released as press or marketing photos. One has Craig looking somewhat severe in front of an SUV. Another has Craig in a handsome sweater standing behind the Denza Z9 GT, an attractive wagon/hatch that’ll debut in Europe this summer.

The one of him with Stella Li, the longtime BYD marketing exec, in front of a sports car prototype is my favorite, especially because it looks a little like she was photoshopped in front of him (it’s possible they were together and this was just retouched so heavily it looks that way).

If you’ve watched the excellent Knives Out films you’ve become familiar with Craig’s charming smile, so perhaps that’s why so many people online found the photos of him straight-faced so uncanny and amusing. I wish I’d saved the comments, because many people agreed there was a quality that made it seem a little like Craig had been forced to take the photo against his will.

There are sometimes instances where an automaker will use a western celebrity for a local market, and these can sometimes seem unusual to different audience. This wasn’t the case here as Li herself pointed out, saying Craig was chosen to help “bring the brand to the world” and specifically called out Europe and Latin America.

Again, this was all meant to be a quick critique of the press photos, which is an entirely valid and newsworthy thing for us to do. BYD didn’t take it that way, and have instead invoked censorship, threatened us, and broke the norms of how manufacturers and the press operate in a way that’s pretty scary if it’s allowed to stand.

BYD Europe Responds With Threats

It’s not unusual for an automaker’s PR department to be unhappy with something a journalistic outlet like The Autopian might publish, and it’s well within their right to call or email us to argue the point. This happens all the time.

BYD’s operations in Europe, as represented by their official Instagram account, didn’t attempt to argue the point with us. Instead, they went straight to threats.

When I saw this I admittedly found it a little amusing, and showed the other journalists who were with me at the New York Auto Show and we all had a good laugh. I may have responded with a GIF of Daniel Craig laughing himself as I pointed out that many, many other publications had used the photos.

While I’ll admit that using gifs to reply was a tad provocative, I was hoping to highlight the complete absurdity of the request, given that these were press and marketing photos. I don’t think they understood.

I responded with a few more GIFs and tried to make my point a little clearer, asking if I should just tell all the other journalists who wrote about it that they should pull it. I was trying to get them to admit that the reasoning behind pulling our post had nothing to do with “copyrights permits” and, as I suspect, was because it was perceived as being negative.

BYD didn’t respond and, instead, used the automatic copyright complaint portal on Instagram to have valid critique from a journalist pulled.

This isn’t Instagram’s fault. For practical reasons, Instagram pulls a post and allows for a later appeal. If this stands, this will create a dangerous precedent, which is why we’re going to appeal and why I’m making a big deal out of this.

If Companies Can Use Bogus Copyright Claims To Pull Criticism It’ll Fundamentally Alter Press Freedoms

There are vast legal and functional precedents for how photos distributed by companies as either marketing or press images can be used by media outlets. The whole purpose of these images is to be distributed, and by labeling them as such the sender relinquishes the right to claim intellectual property so long as they’re used in an editorial way.

For instance, Lexus uses this text when you attempt to download one of their press photos:

All materials on this site are for editorial use only. The use of these materials for advertising, marketing or any other commercial purpose is prohibited.

This makes sense. The intention of these images is to be used editorially, but that doesn’t give Ford the right to use Lexus photos to sell its cars. If Ford wants to do that, it has to take its own photos of a Lexus.

What BYD is trying to do is obviously a form of censorship because there are numerous copies of these photos on Instagram, but BYD appears to have only targeted us for being negative. If BYD is allowed to do this, it means that any automaker (or company of any sort) can decide retroactively to have any content it doesn’t like removed by making an illegitimate copyright claim.

In our case, our point is even stronger because we are making a legitimate critique and providing editorial commentary of the photos. This gives us more protection legally, even if the extent of the critique is as simple as pointing out the photos have an uncanny quality to them. This is called “Fair Use” and it is clearly spelled out in US copyright law why we are allowed to do this:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

While our comment on it was serious, the topic itself wasn’t. But what if it was?

Public radio program The World just released a story entitled: “Chinese EV giant BYD faces ‘forced labor’ investigation at Hungary factory.” If a journalist uses a BYD press or marketing image should BYD be allowed to have any related posts pulled because they didn’t like the coverage?

I can’t think of a time that a major European, Japanese, or American automaker has tried to pull something like this. Most of them are aware that copyright law forbids this kind of action and, more practically, why should the press give coverage to a company that tries to censor anyone who dares say something negative?

My hope is that this is a lower-level functionary at the company and that someone with a better understanding of the law will have the copyright complaint removed. Until then, we have an obligation to other journalists to not allow BYD to get away with this.

Photos: BYD/Denza unless otherwise noted