Whether Dumb Starbucks Is A PR Stunt, A Joke Or Real... Its 'Parody' Claims Are Pretty Questionable
from the and-undermined-by-its-own-statements dept
There's been a bunch of buzz making the rounds concerning the launch of the "Dumb Starbucks" coffee shop in LA -- which looks just like a regular Starbucks, but with the word "Dumb" in front of everything.That said, the operators of the coffee shop are claiming that it's okay to do this because it's a parody, as they explain in this FAQ:
Is this a Starbucks?That's all very interesting, but looks more like it was written by someone mocking the concept of fair use rather than by anyone with a legal understanding of fair use. Beyond confusing copyrights and trademarks (both of which do have a fair use doctrine, though they're somewhat different), by more or less admitting that they're only doing this as a cover to be able to use Starbucks' name, rather than as legitimate social commentary, they're basically giving up their fair use defense. Not that it wouldn't make an interesting case. As a big supporter of fair use, it's still a little worrying when people pretend it allows for things that it almost certainly doesn't allow for, as that leads to a cheapening of the concept of fair use.
No. Dumb Starbucks is not affiliated in any way with Starbucks Corporation. We are simply using their name and logo for marketing purposes.
How is that legal?
Short answer - parody law.
Can you elaborate?
Of course. By adding the word 'dumb', we are technically "making fun" of Starbucks, which allows us to use their trademarks under a law known as 'fair use'. Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission form the rights holder. It's the same law that allows Weird Al Yankovic to use the music from Michael Jackson's "Beat It" in his parody song "Eat It".
So is this a real business?
Yes it is. Although we are a fully function coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art. So, in the eyes of the law, our "coffee shop" is actually an art gallery and the "coffee" you're buying is considered art. But that for our lawyers to worry about. All you need to do is enjoy our delicious coffee!
Are you saying Starbucks is dumb?
Not at all. In fact, we love Starbucks and look up to them as role models. Unfortunately, the only way to use their intellectual property under fair use is if we are making fun of them. So the "dumb" comes out of necessity, not enmity.
Still, chances are this is all a prank that will be revealed shortly (perhaps by the time I get this post finally written, edited and posted...) and so the actual legal questions concerning whether this is parody will never be tested. However, it does make me wonder about ways that someone could legitimately use fair use within a retail setting to mock a rival.
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Filed Under: copyright, dumb starbucks, parody, pr stunt, prank, trademark
Companies: dumb starbucks, starbucks
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"by more or less admitting that they're only doing this as a cover to be able to use Starbucks' name, rather than as legitimate social commentary, they're basically giving up their fair use defense."
Unlike the GoldieBlox/Beastie Boys case, here they are flat out admitting that the only reason they are using the adjective 'dumb' is so they can attract customers with the Starbucks logo.
Goldieblox didn't do that. Rather than just use the one word, they used someone else's music and then changed the meaning of the music entirely.
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Uh, no. First off, Goldieblox's use of the Beastie Boys did appear to be parody. They were directly commenting on the song. I don't think that's the case here, because they explicitly note that they're not really commenting on the quality of Starbucks.
Second, there's a big difference between fair use in copyright for use in a single parody song, and fair use in trademark to build an entire brand.
Nuance and details are important. It's not black and white.
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Did you read all the way through the article? Mike laid out his reasoning as to why this instance most likely wouldn't be a legitimate fair use defense (and therefore NOT comparable to the GoldiBlox/Beastie Boys affair) with this statement:
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I mean, please explain to me how GoldieBlox's commercial would possibly cause "brand confusion" for people looking to buy a beastie boys album.
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No. In fact, they're almost totally different.
GoldieBlox claims to have engaged in parody, as a form of copyright fair use. It was a commercial use, but that alone isn't enough to make the use not fair for copyright purposes. There were no trademark issues in that case, because the song isn't a trademark.
In this case, the issue is almost entirely one of trademark and trade dress, and the only copyright issue is the use of the Starbucks mermaid logo, which is likely copyrighted as well as trademarked. The copyright doctrine of fair use has no relevance in a trademark case, and while there is some allowance for parody in trademark law, it is very very minimal, and I doubt that this qualifies. (Which would be no surprise; hardly anything ever does)
Now, some people might want to expand the parody defense in trademark -- and it is really quite narrow now, and probably wouldn't do any harm if it were expanded a little -- but Dumb Starbucks probably still won't qualify. They're using the various Starbucks marks too much, and are operating as direct competitors. I don't know who advised them that they were on solid ground, but I sure wouldn't want to be them.
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The mermaid itself, according to the Starbucks web site, was taken from a 16th century Norse woodcut, and so is clearly in the public domain. The logo as a whole, though, is very likely copyrighted.
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But in any case, whatever elements of it are sufficiently original, creative, etc. as to be copyrightable, would be protected. And while it might have originally come from a woodcut, it's not a woodcut anymore.
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1. Idiot does not like fair use/parody.
2. Opens really blatantly infringing store
3. Then goes to court presenting horrible case and looses.
4. Idiot then has a party celebrating his creation of horrible case law "against parody"
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Signed-
Your Average Techdirt Douchebag
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For everybody's sake I hope this is a joke. Otherwise it will just end up wasting money and time for everybody.
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I'd rather go to MacDowell's
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So if this does turn out to be a prank...
How much coffee are you allowed to sell / money are you allowed to make in a prank?
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And aside from infringement, there is also the matter of dilution, for which they may be liable even if the customers are not confused at all. There are good arguments for blurring and tarnishment here, I think.
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Very weak. Sure it might be enough to convince lawyers to FILE a lawsuit but as for actually winning a trademark case based on a claim that it was a commercial enterprise when no attempt to make any money was made would likely be much more difficult.
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Bzzt.
Wrong, but thanks for playing.
From Planetary Motion v. Techplosion, 261 F.3d 1188 (11th Cir. 2001) (cites removed):
It's not weak. There will really be no problem at all with that, IMO.
Likewise, virtually every business is engaged in, or affects, interstate commerce sufficiently for the federal government to have jurisdiction. The classic case is Katzenbach v. McClung, 379 U.S. 294 (1964) in which a small restaurant was required to stop discriminating against black customers due to federal civil rights legislation. Building on Heart of Atlanta Motel and Wickard, the issue is simply whether there is an affect on interstate commerce, not whether there was a big affect. The coffee probably doesn't come from California, and the store is only about a mile away from a federal interstate highway. These are the sorts of things that will be enough to let federal regulation apply.
This is all 1L Con Law stuff here. I seriously have to wonder who the lawyer was that advised them that it was okay to do this.
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2d, if the intention of the commerce clause was to limit the power of the federal government -- it wasn't, it was to empower the federal government to regulate some commerce, which otherwise it wouldn't've been empowered to regulate at all -- it sure was written incompetently.
3d, the Planetary Motion court's interpretation of the Lanham Act is perfectly normal. I'm confident that all federal courts would've come to the same conclusion. Just because something is given away for free does not mean that it isn't in the stream of commerce subject to commerce clause regulation. You think that when a drug dealer gives away the first hit to a new drug user, that federal laws don't apply simply because it was free? That's an idiotic opinion.
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The vast majority of the Constitution is about clearly defining limits on what the federal government is and is not allowed to do and which branches of the government are responsible for and allowed to do what. As the founding fathers clearly had a bad taste in their mouths from centralized authority that felt that they had the right to treat citizens in any manner they saw fit, in drafting the Constitution, they sought to limit the centralized authority.
I have never seen anyone even mention the commerce clause in relation to federal drug possession laws. I suspect that that is because it is not needed. By your argument, growing your own pot as long s you only used resources and acquired within your state would leave you immune from federal prosecution. And no Colorado and Washington state legalization laws are a matter of practicality of enforcement without assistance from the resources of the state not a matter of whether federal law continues to prohibit it.
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And one of those things is to regulate interstate commerce.
I have never seen anyone even mention the commerce clause in relation to federal drug possession laws. I suspect that that is because it is not needed.
Well, as your own argument goes, some sort of power granted to the federal government in the Constitution is needed. Which is it? The power to establish a post office? To borrow money? To establish standard weights and measures? It has to be something specific, since the federal government, unlike the states, is not a plenary government, with a general police power.
As it happens, it is the interstate commerce power. The case you'll want is Gonzales v. Raich, 545 US 1 (2005) (cites omitted):
The opinion also gets into why it is perfectly in accordance with Lopez, and then there's Scalia's concurring opinion, which immediately gets to the point:
By your argument, growing your own pot as long s you only used resources and acquired within your state would leave you immune from federal prosecution.
No, I'm the one arguing that there is an amazingly expansive federal commerce power, in which the idea of purely intrastate commerce that could escape federal regulation is basically just a fantasy. You're the one who has argued that Dumb Starbucks is on safe ground because it acted in an intrastate manner. I'm not some cartoon animal that will switch sides just because you stop saying 'duck season' and start saying 'rabbit season.' Try harder or give up.
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Also my original contention that the argument was weak had more to do with whether the logic behind it was weak rather than whether it was supported by legal precedent or could be successful or not. As I said before, the Lanham Act clearly states "uses IN commerce" not "uses RELATED to commerce" and the decision you cited is clearly a twisting of the law to justify a decision based on weak logic.
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You think people are driving in from outside CA to get a free cup of coffee?
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And the Starbucks corporation just ruined there case...
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Re: And the Starbucks corporation just ruined there case...
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That's dumb
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really?
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So let me get this straight
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And... we will forever be unable to post a picture of a company logo - even under clear fair use - again.
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"Langham" act??? Starbucks ruined "there" case???
http://money.cnn.com/2014/02/10/news/companies/dumb-starbucks/
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A good idea, right up until the judge frowns...
Ummm...Yeah! Good luck with that.
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outstanding
While there is some parody here (a bit), the reality is that that commercial aspect of the store, along with it's slavish copying of the materials tends to lean towards being duplicative, rather than a parody. Slapping a small "dumb" on everything isn't exactly massive parody, rather more along the lines of a silly tee-hee joke that got played out in full. That they used all of the same materials, the same look, the same feel, and so on puts them very close to the point where some brand confusion could exist.
Put another way: This is one that if it went to court, they have a good possibility of losing (at least on the look and feel issues). For people looking to bust copyright (and such) wide open, this is probably a bad case to get behind.
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Let Nathan tell you himself
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Weird Al is not the right comparison
First, Weird Al changes the lyrics enough to fall under the "transformative" rule. He doesn't just re-record Michael Jackson's song as "Dumb Beat It", he actually writes all new-lyrics to so with the music.
Second, and most importantly he gets permission from the artist or label. Did "Dumb Starbucks" get permission to do this?
Third, almost as important he pays the original artist a royalty. In fact, Weird Al got into a little trouble when he recorded a parody version of "Gangsta Paradise" because the artist claimed he didn't give Weird Al permission. Yet the artist reversed his position when he saw the payment checks from Weird Al. All of the original artists usually see their songs and CD's go up in sales when Weird Al releases his music, which brings in even more money.
Because of these, artists think it's an honor to be parodied by Weird Al. In fact, Mark Knopfler (of Dire Straits) said Weird Al could only record a parody version of their "Money for Nothing" if he played guitar on it!
Maybe the Dumb Starbucks people show watch VH-1's "Behind the Music" episode on Weird Al before using him as their example.
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Re: Weird Al is not the right comparison
Fair Use doesn't require permission from the artist whatsoever. Requiring permission first would leave Fair Use useless and Fair Use is required to keep copyright from running afoul of the First Amendment protections on Free Speech.
Weird Al usually asks for permission because it's easier and cheaper than facing an infringement lawsuit - even if he won and it was found to be Fair Use.
Even so, Weird Al HAS used songs without permission on occasion because he believe the usage to be Fair Use.
http://abovethelaw.com/2011/04/fame-brief-weird-al-fair-use-and-the-lady-gaga-saga/
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