How to Misuse Fair Use and Get Away With It
Every now and then someone takes the internet and transplants into real life. And every now and then parody is so successfully employed as to benefit both the object and the subject of the parody. With his social experiment and promotional stunt Dumb Starbucks, Comedy Central comedian Nathan Fielder did both.
With a slightly confused understanding of intellectual property law and in particular the concept of parody (which may or may not reflect Fielder and his team’s actual understanding), Fielder opened up an entire store premised on the Dumb Starbucks concept, complete with dumb venti dumb lattes and dumb Nora Jones CDs. A clear copy of the Starbucks logo and coffee shop layout, the store was a work of parody art and as such protected under copyright law, according to an FAQ posted inside the store. Although the more likely claim for Starbucks would have been trademark infringement, as entertainment and media lawyer Lisa Borodkin pointed out, this is completely inconsequential: Fielder has already won.
Fielder’s Comedy Central show, Nathan For You, centers on the premise that he gives small businesses terrible advice, and if the legal advice posted in the FAQ was not terrible, it was not far from it. Furthermore, with the online hype that Dumb Starbucks immediately received (and which spilled over into regular media as well), there was no way for Starbucks to pursue legal action without looking like the bad actor in this drama, prompting Borodkin to dub Dumb Starbucks “the perfect crime.”
One might even be able to make the argument that Starbucks received free advertisement from Fielder’s self-promotion. First of all, by not pursuing legal action, by playing it cool, they did not fall out of favor with the Twitter-verse and members of other social media. They may even have become cooler in the eyes of those who abhor what they consider the litigious behavior of megalomaniac, global brands (see Louis Vuitton below). Secondly, although hardly anyone could be unaware of Starbucks at this point (especially anyone who would have heard about Dumb Starbucks), there is an argument to be made that trademark parodies increase the awareness of the brand being parodied. As the Second Circuit has pointed out, “[a] parody must convey two simultaneous-and contradictory-messages: that it is the original, but also that it is not the original and is instead a parody.” Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ. Group, Inc., 886 F.2d 490, 494 (2d Cir.1989) (emphasis in original). As such, it refers to the original and the original must be known to the audience, but the audience must also know that it is not the original for there to be any kind of humorous effect. Thus, someone who does not know the parodied brand but wishes to find out what everybody’s laughing about would need to research it and in turn increase the parodied company’s brand awareness.
Although not as brazen as Dumb Starbucks, the defendant in a relatively recent case dealing with the same issues (Louis Vuitton v. Haute Diggity Dog, 507 F.3d 252 (4th Cir. 2007)) was found not to infringe based on its products being parody. Haute Diggity Dog makes plush toys for pets in the shape of exclusive handbags and other exclusive goods, and the Fourth Circuit held that the company had successful referenced Louis Vuitton without causing consumer confusion or impairing the distinctiveness of Louis Vuitton’s trademark, making it a non-infringing parody. The court even went so far as to say that the fact that Louis Vuitton is such a well-known mark may actually have worked against it (usually the famousness of a trademark works in the markholders favor) since a parody cannot be successfully employed when no one knows what’s being referenced.
We will never know if the Ninth Circuit would have ruled the same way for Dumb Starbucks. As soon as Fielder announced that he was the wizard behind the curtain, the LA Health Department shut down his art installation/store for lack of a permit. Nothing of this really matters though, because Fielder had already received more advertising for his show and himself than any 30-second spot on television ever could have bought him, and Starbucks could do nothing without feeding into the parody of it as a member of the Establishment.
Christoffer Strömstedt is a J.D. candidate, ’15, at the NYU School of Law.